of the ® niuersitp of i^ortf) Carolina TOfjtS book boas pregenteb ! v lro. tvVckmondL I earson v. I .e.g. UNIVERSITY OF N.C AT CHAPEL HILL 00033977215 Thisbookmust notbe taken from the Library building. Digitized by the Internet Archive in 2010 with funding from Ensuring Democracy through Digital Access (NC-LSTA) http://www.archive.org/details/digestofallrepor18661batt A DIGEST OF ALL THE P.EPOBTED CASES, BOTH IX LAW AND EQUITY, DETERMINED IN THE COURTS OF NORTH CAROLINA l'KOM THE EARLIEST PERIOD TO THE PRESENT YEAR. TOGETHER WITH A 1AJJI i: OF THE NAMES <>F THE CASES. P It E P A It E D B Y "WILiLiIAM H. BATTLiE, A Judge of the Supreme Court. IN THREE VOLUMES. THIS FIRM AND SECOND VOLUMES CONTAINING THE LAW, AND THE THIRD VOLUME THE EQUITY CASES. RALEIGH : NICHOLS, GORMAN Jt NEATHERY, BOOK AND JOB PRINTERS. 18 6 6. Entered according to Act of Congress, in the year 18156, by WILLIAM H. BATTLE, In the Clerk's Office of the District Court of the United States, for the District of North Carolina. PREFACE. This Digest has been prepared at the request, and mainly for the use, of the Bench and Bar of North- Carolina ; though it is hoped that it may not be with- out its value to the members of the Profession in other States. In the plan and execution of the work, the Author has had more regard to practical utility than to logical accuracy. Hence, in arranging the divisions and subdivisions of the various titles embraced in it, he has endeavored to place each abstract, 01 point decided, under the head where a seeker would be most likely to look for it. There are, however, very many points which may rightly be put under either of two or more different heads, and as to the proper distribution of them opinions may very well differ. In adopting the usual plan to obviate this difficult)' by making references from one subject to another, the Author hopes that, by the number, variety and minuteness of his references, he has made a successful search a matter of easy attainment. The work is divided into two parts, of which the first, in two volumes, contains abstracts of the law, and the second, in one volume, of the equity cases. In this ar- rangement, the present Digest differs from those of Hawks and Iredell, while, in embracing all the reported deci- sions made by the courts of this State from the earliest period to the present year, it differs from that of Jones. In this work, the law is separated from the equity reports, and the reader must bear in mind that there are many questions which may arise and be decided either in a court of law, or a court of equity, such, for instance, IV PREFACE. as questions concerning devises, legacies, divorces, &c, and, hence, he may have to look under the appropriate heads in both parts, before he can find what he may wish to see. In submitting to the public this product of his labors, the Author must bespeak for it, an indulgent criticism. He has tried hard and taken much pains to make it both accurate and complete ; but prepared as it was in a great measure, amid* the anxieties, distractions and distresses of a great civil war, he fears that other persons may dis- cover errors which have escaped his own attention. There are some typographical mistakes which he much regrets. The more important of them will be found in the list, of errata to which the reader is referred. But. notwith- standing all its defects, the Author trusts that the work will prove to be of no little utility, as a book of refer- ence, to those who are engaged either in the practice of the law at the bar, or in its administration on the bench. Before closing this brief preface, the Author will avail himself of the opportunity of making to the Hon. David L. Swain and Thomas P. Devereux, Esq., his grateful ac- knowledgments for their great kindness and assistance to him in the earlier part of his professional life. To the former he was indebted for his appointment on the com- mission for revising the Statutes in 1833, and to the lat- ter he owed his connection with the office of Reporter of the decisions of the Supreme Court in 1834. These timely aids, rendered in both instances without solicita- tion, gave a favorable turn to his previous unsuccessful career at the bar, one result of which has been the pre- sent work. He trusts that it will not be deemed inap- propriate for him to connect with it this public expres- sion of his gratitude to those who have thus, in a measure, been instrumental in its accomplishment. TITLES OF REPORTS^ DIGESTED IN THE LAW VOLUMES, With the abbreviations by which they are designated; TITLES OF THE REPORTS. WHEN PUBLISHED. ABBREVIATIONS. . Martin's Eeports in two volumes,, 1797, 1 Mar, 2 Mar. Haywood's Reports, 1st volume, 1799, 1 Hay. Taylor's Eeports, 1802, . Tay. or Tayl. Conference Reports, 180(3, Conf. Rep. Haywood's Reports, 2d volume, 1806, 2 Hay. Carolina Law Repository, 1814, 1 Car. L. R. Carolina Law Repository, 1816,, 2 Car. L. R. North-Carolina Term Reports, 1818, N. C. Term R. Murphey's Reports, 1st volume, 1822,'. 1 Murph. Murphey's Reports, 2d volume, . 1826,' 2 Miviph. Murphey's Reports, 3d volume, 1821, 3 Murph. Haw r ks' Reports, 1st volume, 1823; 1 Hawks. Hawks' Reports, 2d volume, 1824, 2 Hawks. Hawks' Reports, 3d volume, 1826, 3 Hawks. . Hawks' Reports, 4th volume, 1828, 4 Hawks. Devereux's Reports, 1st volume,. 1829, 1 Dev. Devereux's Reports, 2d volume, 1831, 2. DeVi Devereux's Reports, 3d volume, 1834, 3 Dev. Devereux's Eeports, 4th volume, 1836, 4 Dev. Devereux & Battle's Reports, 1st vol., 1837, 1 Dev. & Bat. Devereux & Battle's Reports, 2d vol.,. 1838, 2. Dev. & Bat. Devereux & Battle's Reports, 3d vol v 1840, : 3 Dev. & Bat. Devereux & Battle's Reports, 4th vol., 1840, 4 Dev. & Bat. Iredell's Reports, 1st volume, 1841,, 1 Ired. Iredell's Reports, 2d volume, 1842, 2 Ired. Iredell's Reports, 3d volume, 1843, 3 Ired. Iredell's Reports^ 4th volume, 1844, 4 Ired. Iredell's Eeports, 5th volume,. 1845, 5 Ired. Iredell's Eeports, 6th volume,, 1846, 6 Ired. Iredell's Eeports, 7th volume;. 1847, 7 Ired. Iredell's Eeports,. 8th volume, 1848, 8 Ired. Ired.dl's Eeports,. 9th- volume, 1849, 9 Ired. Iredell's Reports, 10th volume, 1850, 10 Ired. Iredell's Eeports, 11th volume, 1851, 11 Ired. Iredell's Eeports, 12th volume, 1851, 12 Ired.. VI TITLES TO REPORTS, ETC. TITLES OF THE REPORTS. tfedell's Reports, 13th volume, Busbee's Reports, Jones' Reports, 1st volume, Jones' Reports, 2d volume, Jones' Reports, 3d volume, Jones' Reports, 4th volume, Jones' Reports, 5th volume, Jones' Reports, 6th volume, Jones' Reports, 7th volume, Jones' Reports, 8th volume, Winston's Reports, 1st volume, Winston's Reports, 2d volume, Of the above repoi'ts second editions have been published, as follows : 1st Haywood, in 1832. Martin and 2d Haywood, (bound together) in 1843. Taylor and Conference Reports, (bound tdS gether) in 1844. The 2 volumes of Carolina Law Repository and North-Carolina Term Reports (bound together)in 1844. 1st Devereux and Battle, in 1857. The 2d Devereux and Battle, in I860. The pages of the new editions, when they vary from those of the old, are added in brackets. The abbreviations, other than those for the Reports, used in this volume, are S. C, same case; S. P., same point. rumsHEE >. ABBREVUTIOXSv 1852, 13 Ired. 1853, Busb. 1854, 1 Jones. 1855, 2 Jones. 1856 - , 3 Jones. 1857, 4 Jones. 1858, f> Jones, 1859, 6 Jones. 1861, 7 Jones. 1863, 8 Jones. 186*6, 1 Winst. 1866, 2 Winst. INDEX.-VOL I. ABATEMENT. 1. By the death of parties, 1. 2. How and when suit to be revived after abatement by the death of parties, 2. 3. Plea in abatement, for what causes to be pleaded, 3. 4. Plea in abatement when and how to be pleaded, 4. 5. Plea in abatement to an indictment, 5. ACCESSORY, 5. ACCOMPLICE, 6. ACCORD AND SATISFACTION, 6. ACCOUNT, 7. ACT OF ASSEMBLY, 8. ACTION ON THE CASE. 1. For conspiracy, 11. 2. For deceit, 12. 3. For malicious prosecution, 17. 4. For slander, 22. 5. When the action will or will not lie in other cases, 30. 6. When the action will or will not abate, 35. ADJUTANT GENERAL, 35. ADMIXISTRATt >KS. (See Executors and Administrators,) 36. ADMIRALTY 3G. ADULTERY. (See Fornication and Adultery, 1 ) 36. ADVANCEMENT, 37. AFFRAY, 37. AGENT AND PRINCIPAL. 1. H07. DIVORCE AND ALIMONY. J. When both or either will be granted, 370. 2 Proceedings in cases of divorce and alimony, 373. BOGS, 375. DOMICIL, 375 DONATIO CAUSA MORTIS, 376. POWER (Sec Widow,) 376. DRAINING LOW LANDS, 376. DRUNKENNESS, 378. EASEMENT, 378. gJECTMENT. 1. For what the action will lie, 378. 2. Commencement of the action, 379. 3. Of the declaration, 379. 4. Of the defendant's bond, 381. 5. Entry, when necessary and its effect, 382. 6. Of the defendant's possession, 382 7. Survey, 383. 8 Of the title necessary to support the action, 383. 9. Ot the defence, and herein of the consent rule, 393, 10. Judgment and writ of possession 398. 11. Trespass for mesne profits, 400. ' 1 ; 2. When the action abates, 402. XII INDEX.— VOL. I. ELECTION. 1. Election between inconsistent benefits, 402. 2. Election of public officers, 403. EMBEZZLING, -403. EMBLEMENTS, 403. ENLISTMENT, 403. ENTRY, 404. ESCHEAT, 405. ESTATES TAIL, 405. ESTOPPEL. 1. By matter of record, 406. 2. By deed, 408. 3. By matter other than by record or deed, 413. EVIDENCE. 1. Witnesses, their competency or incompetency, 413. 2. Subscribing witness, proof of handwriting, 429. 3. Witnesses, their examination, 434. 4. Competency of a witness restored by a release, 437. 5. -Impeaching the credibility of a witness, 438. 6. Depositions, 443. 7. Hearsay, and common reputation, 448. 8. In what cases a witness may express an opinion, 450. 9. Proof of character, 452. 10. Testimony inadmissible for irrelevancy, 453. ] 1. Privileged and confidential communications, 455. 12. Parol evidence, when admissible and when not, 455. 13. Admissions, declarations and acts of patties, privies and others, 462. 14. Public Documents, 478. 15. Statutes, 479. 16. Records of courts, proof and effect of them, '479. 17- Proceedings in other suits, when and how far evidence, 48S 18. Copies of deeds and other instruments, when admitted and how proved, 4S6. 19. Proof of official bonds, 494 -'20. Professional books, or books of science, 494. 21. Books of original-entries, accounts, receipts, orders, checks, waybills, &c, 495. 22. Laws and legal proceedings in other States and countries, 496. -23- Evidence in cases relating to wills and testaments, 499. 24. Evidence in cases of malicious prosecution and slander, 502. 55. Evidence as to identity of names, 505. 26. Evidence in criminal proceedings rand indictments, 505. 27- Dying declarations, 521. 28. Who to decide upon the competency of evidence, 52]. 29. Of the effect to be given to testimony by the jury, 522. 30. Presumptions, 526. 31. Witnesses, their liabilities, 531. 32. Witnesses, their compensation and remedy therefor, 532. EXCHANGE, 533. EXECUTION. 1. What maybe levied on and sold under execution, 533. 2. When and to what county an execution may issue, and of its return, 540. 3. Levy, sale and application of the money raised, 54]. 4. Forthcoming bonds taken on a levy, 548. 5. Right to the surplus after the satisfaction of an execution, 548. 6. Lien and priority of executions, 549. 7. Of void and irregular executions, and proceedings tosetaside executions, 555. 8 Purchaser at an execution sale, 558. '9. Of the capiat ad satisfaciendum, 567. ilO. Of the discharge of the defendant in the execution, 568. INDEX.— VOL. I. XIII ^EXECUTORS AND ADMINISTRATORS. 1. Letters testamentary and letters of administration, 569. 2. What interest vests in' them upon the death of the testator or intestate, 674. 3. Executors dc'son tort, : bli. 4. What interest vests in an administrator de bonis non, 577. 6. Of co-executors and co-administrators, and their liability to or for each other, 577. 6. Of sales by executors and administrators, and herein of purchases by them at their own sales, 578. 7. Of suits by executors and administrators, 581. 8 Of their liability for funeral expenses,. 584. 9. Of their liability to creditors, and herein of suits against them, and their de- fence, 584. 10. Of their liability to legatees and next of kin, 597. 11. Of refunding bonds taken from legatees, and next of kin, 601. 12. Of the effect of making a debtor an executor or administrator, 602. 13. Remedy for the sureties of executors and administrators, who may be in dan- ger of loss, 602. 14. Of the claim of executors and administrators to, or liability for, costs, 602. 15 Of the compensation to which executors and administrators are entitled 604. EX POST FACTO LAW, 605. EXTORTION, 605. FALSE TOKEN, 605. FACTORS, 605. FEES. (See Salaries and Fees,) 606. FELONY, 606. FENCES, 606. FERRY AND TOLL BRIDGE, 607. FISHERY, 610. FIXTURES, 611. FORCIBLE ENTRY AND DETAINER, 611. FORCIBLE TRESPASS, 615. FOREIGN LAWS, 618. FORGERY, 618. FORNICATION AND ADULTERY, 619. FRAUD. .1. Conveyances, agreements, &c, fraudulent as to creditors, 620. :2. Conveyances, fraudulent as to subsequent purchasers, 634. 3. Remedy against fraudulent conveyances, 637. 4. Fraud in the removal of 'debtors, 638. 5. Fraud in the executionof a deed or other instrument, 640. 6. Fraud at auction sales, 640. FREE PERSOXS OF COLOR, 642. FREIGHT, 643. FUNERAL EXPENSES, 643. GAMING. 1. Horse racing, 643. 2. Gaming contracts other than horse racing, 645. 3. What gaming is made indictable, 645. •GENERAL ASSEMBLY, 646. GENERAL RULES, 647. GIFTS. 1. Gifts of slaves prior to. or independent of, the act of 1806, 649. 2 Gifts of slaves since the act of 1806, 651. 3 Gifts of chattel property other than glares, 653. XIV INDEX.— VOL. I-II. GRANT. 1. What may or may not be granted, and of the effect of a grant, Co4. 2. Of the effect of an exception in a grant, (J5I3. 3. Of the presumption of a grant, 606. 4. How and when grants may be avoided, 659. GUARANTY, 663. GUARDIAN AND WARD. 1. Of the appointment of guardians, 667. 2. Of the powers and duties of guardians, 668. 3. Of t lie liabilities of guardians and their sureties, 669. 4. Of the liability of justices for taking insufficient security in (he appoint- ment of guardians, 672. INDEX -VOL. II. HABEAS CORPUS, 673. HEIRS, 074. HIGHWAY, 680. HOMICIDE, 685. HOTCHPOT, 695. HUSBAND AND WIFE. 1. Of marriage, 696. 2. Husband's interest in his wife's person. 699. 3. Husband's interest in his wife's estate during coverture, and after death as survivor, 699. 4. Conveyance of real estate to husband and wife, 703. 5. Conveyances by husband and wife, 703 6. Of marriage settlements and agreements, 7n9. 7. Of actions by and against husband and wife, 710. 8. How far the hushand is bound by the acts and admissions of his wife before and after marriage, 6'1. 9. Of the liability of a wife for her own acts during coverture, 712. IDIOTS AND LUNATICS, 713. [NCENDIARY PUBLICATIONS, 714. INDECENCY, 714. INDIAN LANDS, 715. INDICTMENT. 1. In what cases an indictment will lie, 717. 2 Form and matters relating thereto, 729. 3. Of the trial, verdict and judgment, 748. 4. How a presentment is to be made or a bill found, 761, 6. Effect of a nolle prosequi, 761. \.//A ,-. Conf. Rep. 95, (226.) _ 6. An action of waste, brought against a tenant for life, will abate by the death of the defendant, and cannot be renewed against his representatives. Brown v. Blick, 3 Murph. 511. 7. An action for seduction of bis daughter, brought byafather, abates by his death, and cannot be renewed by his executors. Mi i lure v. MiUer, 4 Hawks 133. 8. When an action is brought mi an official bond, for the ben- efit of a person injured, in the name of the Stat'/, or of an officer of the State, to whom the bond is made payable, it is regarded as the action of tin.' relator: and on his death it is abated, as other actions abate by the death of the plaintiff, unless revived in the manner prescribed by law. McLavg di i v. Neitt, 3 Ire. 294. 9. An action of trover does not, under the Rev. S(;it. eh. 2. ■l ABATEMENT. -J.-II. Sec. 10. abate by the death of tin- party doing the wrong. // eare v. Burge, 10 Ired. 169. (See Rev. Code ch. 1, sec. 1.) 10. An action of ejectment does not abate by tin. 1 death of the lessor of tin- plaintiff! Thomas v. Kelly, 13 [red. 43, S, 1'., Wilson v. Hall, 13 I ml., 489. 11. When, upon the death of tin lessor, some of the heirs came in ami are made parties, and others refuse to do so, a non- suit cannot he entered for that cause. Ibid. 12. A sci.fg. to recover a, penalty, imposed on a sheriff for not returning process, abates by lr's death and cannot be revived. against his representatives. Mason v. Balleiv, 13 [red., 483. 13. Where an action was brought against the administrator of a clerk on his official bond, for the penalty of £200, for issu- ihga writ without requiring security to the prosecution bond. it was held that the right to sue for the penalty abated by the death of the clerk. File v. Lander, 7 Jones, 247. See (Detinue — Parties to the action, 1,) (Ejectment — Judg- ment and writ of possession, 11-12,) (Husjjand and wife — Of the liability of a wife for her acts during coverture, L,) (Mills — Proceedings by petition under the act of 1809, 3-4) ,11. HOW AND WHEN TO EE REVIVED AFTER ABATEMENT BY HEATH OF PARTIES.. 1. The executors of a deceased plaintiff, must apply within two terms after his death, to lie made parties to carry on the suit, or it will be abated and the defendant discharged. But if afterwards the executors apply by a set. fa., or a liotice to the defendants, aid ; r • mad.' parties without opposition by eider of Eke court, it will be too late for the defendant to have the suit abated. Anonymous, 2 Hay, (ifi, (233). Begukt generalis, Tav. 134,(82.) 2. An order, entered of record, lor a sm. fa. to issue to tic representatives of a deceased defendant parties to a suit, witti prevent an abatement of the suit, as tiff shall net suffer for the neglect of the cleric. Hamilton v. Jones, 1 Murph. 4-11. :i. When a e end i in. ejeetmein die$ between two terms oi the superior court, and his death was suggested at the firsl afterwards, a service on the guardian of the infant heirs on the first dav of lb' ensuing term is sufficient under the act of 1799. Bay v. Simpson, 2 Car., !.. R. 2!!'. (227). (See Rev. Cod 2. sec. 5.) !. When the defi ndant dies ami ■., g, {.fa. against his adminis- trator regularly isxm s from term to term, although net ac ' • 1 until after the lapse of live years, the suit will be re 1 Clements v. Hussey, 2 Car. !.. R. 011,(414.) 5. Upon the death of the trespass quart freqit, the sui1 must be revived by ' 'tor and not by 'his \ ABATEMENT.— II-III. 3 6. Executors or administrators of a plaintiff must, in urn, nil. apply to revive the suit within two terms after his death, com- puting from tlic day of his death, ami not from the time the suggestion was entered on the record. McLdMghlin v. Xcili., 3 Ired. 294. 7. The application to revive a suit, in the name of tint admin- istrator of a deceased plaintiff, must be made within two terms at'ter his dtiath, am' affidavits will he received to show when he died. Lea v Gauze, 4 Ired. 9. 8. Upon the death of the defendant in ejectment, a sci. fa. and a copy of the declaration must be s< rved on the heirs, in the manner prescribed by the act, within two terms offer tin- death of tJte defendant, or the suit will stand abated. It is* not sufficient only to apply for such process within the two terms. Love v. Scott, 4 ired'. 79. (See Rev. Code. ch. 1, sec, 5.) 9. It is ; i;ot necessary, in any ease, for the representative of a deceased' plaintiff to issue a. sci. fa. to make himself a party, hut lie may be made so upon application to the court, and the law keeps the defendant in court two Aerms- for that purpose. Bor- den v. Thorpe, 13 Ired. 298. 10. I.n ejectment, where the suit abated by the death of the tenant in possession, notice to "the heirs" of such deceased tenant, without naming them, is sufficient to revive the sxiit against them, under the 7th and 9th sections of tin' Rev. Stat. eh. 2: and upon failure of theheirsto appear and make defence, the plaintiff's lessor is entitled to judgment by default against the casual ejector. Johnson v. Maddera, Buebi 52. (See Rev. Code, ch. 1. s c 5 and 7.) 11. The heirs at law of a deceased defendant cannot, under the Revised (.'ode, ch. 1. sec. T>. make themselves parties to an action of ejectment, against the will ofthe plaintiff's lessor, sous to prevent the suit fi om abating. Watkiitst Eashy, tJones286. S e (Trespass- -Of tres-pass quare claiisum /regit, l(i.) II!. PLEA .IS ABATEMENT, FOR WHAT I LCSES TO I.E PLEADED. 1. Since the acirof 1789 (le v. ode eh. 31, see..'-:"!) 710 plea fcement will lie for not suing a co-obligor who is alive. " wn, 1 Hay. . abatem irl that I ben were : ei executors not is bad. It should liavi stat< M bat other ex- iled as such, and took upon, themselves the d mting : will. Burrow v Sellers,! Hay. 501, — v. Kenon, 1 Hay. 216. (:'. 2 A plea in abatement that then wen othei < lecutors nol : ' is bad It should have stated that other ex- ■.' "i"' ., burthen of ,< (577.) 3. 11 ent, that ] ling the suit the plaintirl ivho wai a i ■•• i bad married, and that her husband is not made a party. G rardv Fia '■ " ! irph. 161. 4. ft is a good I mt that the writ in 4 ABATEMENT - ill. IV. an action for a p tialty is in tl e iam of "J. T, Governor." a.-.. and the dei laration is thai the relati i nv - as well for liin for "J. T., Governor," &c. Governor v Horfon, 1 Murph. 212. 5. Defects in warrants must Repleaded in abatement win they come n]i tn tin county couri on appeals; they can taken advantage of after verdict, upon amotion to am . judgment. McBae v Starr, 1 Mnrp. 252. ii. Where a guardian bond wai uadi payable to three jui byname " and the rest of the justices'" of the county court, it was held in a suit, on the bond, in the name of the three justices, thai the noii joinder of the other justices as plaintiffs would be fatal on demurrer, on motion to arrest, or upon a writ of error, if the defect appeared on the face of tic- p oc< dings; but as it did not in this case, tic defect cotdd only bo tab n advantage of by plea in abatement, or as a ground of nonsuil on tin; trial Upon the plea of non est factum. ( 'lancy v Dickey, 2 Hawks 4'e7. 7. Matter which abates an original suit, abates one that is collateral to it; as an interplea, between a plaintiff and a gar- nishee, is abated by the death of the defendant in the attachment, or a sci./a. under the Act of 1806, by the death of the defendant in the original action. Wintz v Webb, 3 Dev. 27. (See Rev. >Code ch. 50, sec. 7.) 8. In detinue, if. after action brought and issue joined, the plaintiff gets possession of the thing sued for, that fact may be pleaded, since the last continuance, in abatement of the suit. bu1 it seems that it would not be a good plea in bar. Morgan v Cone, 1 Dev. & Bat. 234. 9. A plea in abatement, to the disability of the lessor of the plaintiff in ejectment, is not a good plea. Rouclie v Williamson, ;; Ired. 141. 10. An assignment of a note, without consideration, passes the legal title, but if ii be made to evade the law regulating the juiisdicticn $ act ns, as to ' ' • i ■< nte, che ct.jcfccn it available at all, must be made by a plea in abatement. McLi ■>> v McDugaLd, 8 Jones 383. (See Rev. Code, ch. 31, sec. ;>7.) .See (Husband and wife — < (factions by and against husband ami wife, 1-8,) (Jurisdiction — Of the countyand superior courts, 14- 15—18—25—27—30, ; (Justices of the peace — Of their jurisdiction, judgment and execution 100-101-1 1 2, ) (Militia 1,) (PL sading— ( If pleas, replications and demurrers, 11-13-30-31-34-36-37-48 49 .50-51-66-67- On the -trial of a white man eharged. On the trial of one indicted as an a& essoiy in the crime of murder, a transcript of the record of the conviction of the prin- cipal was received in pidi nee, though it appeared from it that the case had been to the supreme court upon an appeal, and been sent hack without 1 1c decision of that court appearing upon it. it was In-Ill that though the docisien of the supreme court should properly have been entered mi the record, yet tin- transcript was good evidence against the accessory, for, at must, the judgment against the principal was onilv erroneous. State v. Duncan, •' I red. 2/tti. 7. An accessory cannot take advantage of error in the record against the principal-; ami the attainder <>t' the principal, while unreversed, is prima facie evidence against the accessory of the principal's guilt. // id. 8. There can be no accessories in inferior of] nces; but what- ever will n.;i he ,-i man accessory before the fact, in felony, will make him a principal in trespass ami other misdemeanors, as in battery and forgery at common law. Procurers ami aiders. therefore, in such cases are principals, and maybe so charged in an indictment. State v. Cheek, 13 fred. 111. See (Evidence— In criminal proceedings and indictments 58 &&,) (Larceny 7 :>. | ACCOMPLICE. See ( Evidence — In criminal proceedings ami indictments, 12 A 19-42.-43 50-70 82.1 ACCORD AND SATISFACTION. 1. [f an obligor pay a less sum than is due. either before the lay specified, in- ;ii any other place than is limited by the coq* lition, it is a good satisfaction. Smith v Brown, ."> Hawks 580! :' \n accord and satisfaction, made before the breach of .a A.CCOUNT. 7 covenant, cannot be pleaded in bar of the covenant; but where any damage lias accrued under the covenant, accord and satis- faction may 1"' pleaded in bar of such damage. Ibid. 3. An accord without a satisfaction is nothing. Sin/In v Strain, 3 Dev. 24. 4. A receipt acknowledging the payment "1' a particular sum. without stating it to lie in full, is not in itself evidence to sup- port the plea, of accord and satisfaction. McCuUen v //<««/, ."> Dev. 219. 5. Where A owed B, by bond, and it was agreed between them that A should pay tin' debt by instalments, and execute a new bond for the balance due after each payment, it was held that an offer of performance by A was not a liar to an action on a bond delivered after the agreement State 'BankvLittlejohn, 1 Dev. & Bat. 563. 6. A plea i if an accord and satisfaction must aver an accep- tance, by the plaintiff, of the thing- agreed to In- given in satis- faction. Ibid. 7. A parol agreement cannot he received to support a plea "I an accord and satisfaction, loan action of debt upon a bond. Ibid. s. An entry on the record of a suit, that "the costs are to be paid by the defendant," is nut even prima facie evidence, to be left tn tin- jury, of an accord and satisfaction. Band v McNider, :\ [red. 440. !i. Where a certain duty arises under a sealed instrument, accord and satisfaction by parol merely is no sufficient answer, for a deedfmght to he avoided by a matter of as high a nature. But where the' covenant sounds altogether in damages, though secured bj a penalty, accord and satisfaction executed, though in parol, is a good defence. Cabt v Jameson, 10 Ired. 193. 10. The payment of a lesser sum than the amount claimed, if received as a. satisfaction, "where the amount in controversy is unascertained, will support the plea of accord and satisfaction. Mathis v. Bryson, 4 Jones, 508. See (Evidence — Parol evidence, when admissible 26,) (Re- cord, 8.) ACCOUNT. 1. The action of. account will not lie fur a 1< gatee against an executor, or the executor of such executor. Eaves v. Starkey, Mai". 4a, (39) S. 1'. and probably S. < '. Anonymous 1. Hay. £26,(259.) ■>. In .the action if account there are two judgments; first. 8 ACT OF ASSEMBLY. that the plaintiff and defendant account together; secondly, thai the plaintiff or defendant recover the ! >alance found to be du< from one to the other. In order to obtain the first judgment, it is not necessary for the plaintiff to show that the defendant is indebted to him as bailiff, &c. He need only show that he is bound to account with him as bailiff, or as a tenant in eommon, who has been in the pernancy of the profits, and the right to this judgment can only be barred by proof on the part of the defendant that he has already accounted, or by a denial, uncon- tradicted on the part of plaintiff, of the existence of any such relation between the parties, as gives the plaintiff the right to call for an account. McPherson v. McPJierson, 11 Ired. 391. 3. Where there are several tenants in common, some of whom have been in the receipt of profits and some not, each of the latter must bring his own action of account for what he claims; they cannot bring a joint action in the names of two or more, to recover their several shares. So, where several tenants in common receive the profits, unless it can be shown that they received them jointly as partners, an action of account cannot be brought against them jointly, but each must be sued sepa- rately; and if either of these cases appear upon the trial, the court will order a nonsuit. Ibid. 4. Every tenant in common, who has been in the enjoyment of the property, is liable to account; and it is not material what was the mode of enjoyment, whether he used it merely for shel- ter, or as a means of supporting himself and family, or made money by selling the products, or received money as rent. Ibid. ACT OF ASSEMBLY. 1. An act of Assembly takes effect from the beginning of the session at which it is passed. Smith v. Smith, Mar. 26, (14,) S. P. Sv/mner v. BarksdaU, Conf. Rep. Ill, (241), (It is now pro- vided by the act of 1799, Rev. Code, ch. 52, sec. 35, that it shall be in force only from and after thirty days after the rise of the session, unless otherwise directed. An act directed to take ef- fect from and after "its passage," will take effect from the be- ginning of the session, but not if it had been from and after "its ratification." Weeks v. Weeks, 5 Ired Eq. r 111 S. P. Hamletv. Taylor, 5 Jones 36.) 2. Where there are two statutes in pari materia, and the lat- ter contains no words of repeal, they are to he construed as one Ea.w. State v. Grove, Mar.. 43, (36).. (The Stat, of 2 and 3 Phil. ACT OF ASSEMBLY. If and Mary, eh. 10, and the act of 1715, Teh. 1, of the R. C. of 1820] are cons i I ited in the Rev. Code, ch. 35, sec. 1.) 3. When a statute uses a word, the meaning of which is un- derstood at the common law, it shall have the same Bense in the statute which it had at common law ; and where the provision ofastatuteis general, it is subjectto the control and ord the common law. KitcJien v. Tyson, •"> Murph. 314. 4. If a '■ allowed by a statute to be a witness who was inadmissible .-it common law, he becomes al once affected by all the rules and principles which appertain to that character; and if the statute r< smove one disability tin,- others remain in full fi irca I bill. 5. A remedial statute is to In- construed so as to advance the intention of the Legislature; as where^bythe art of 1815, incor- pprating the Cape Fear Navigation Company, no power to col- lect tolls is expressly given, unless bythat section "which con; fers on the company all the powers, which the 8th sectionof the act of 1812 gives to the Roanoke Navigation Company, and that section authorizes the latter company to demand their tolls at tin- Falls of Roanoke, it was /'-A', that tin- Cape Fear Naviga- tion Companymight demand their toll at any place en the Cape Fear river. State v. Patrick, '■'> Dev. -17*. (3. In the construction of public and private statutes a differ- ent rule prevails. The latter are never extended beyond their words or a necessary implication from them, and are restrained in favor of the rights of those who are not mentioned in them. Drake v. Drake, 4 Dev. 110. 7. Where a private act requires the assent of a particular per- son to its validity, parol evidence of that assent may lie given. But evidence that a person procured one to he passed, or subse- quently assent d to it. is not admissible to extend its effect : as where a bastard was legitimated but without saying to whom, evidence that his reputed father procured the passage of the act does not legitimate the bastard as to him. Ibid. 8. In act, making it an indictable offence to fell timber on a certain creek in a particular county, is a public law, and need not be recited in an indictment tinder it. Stuff v. Cobb, 1 Dev. and Bat. 115. it An act. which declares a crime, of which all persons are capable, and renders it punishable by indictment am! line, is a public law. Ibid. 10. Words of reference, as "such persons" or "the persons so offending," shall he implied in an act creatine- a small misde- meanor, if the context shows that such is clearly its mean- ing. Ibid. 11. Where different obieets of policy may have dictated an act creating an indictable offence, none of which, however, are 10 ACT OF ASSEMBLY. expressed, it shall not be construed with reference to one of the objects only. Ibid. 12. All the acts passed at the same session of the Legislature are tii be considered as but one statute. Therefore, the Re- vised Statutes passed al the session ot 183(3, constitute but otic st; ate. Statev. Hill .". [red. 505. (The same may lie said of ihe Reviged Code enacted at the session of 1854.) .>.">. The act of 1800, imposing a penalty -on persons retailing ^spirituous liquors by the small measure, in the towns ef New- born and Wilmington, without the permission of the commis- sioners of those towns respectively, is a private act, an&;wasnot •repealed bythe general law upon the subject o"f retailers, passed in 1825, nor by the Revised Statutes of 1836. McRae\ Wessel, ■J! Trcd. 153. (Nor was it repealed by the Revised Code of 1854 See ch. L21, see. 8.) 14 The act of 1823, ch. 74, relating to the sales of land under ■execution, in the county of Pasquotank and other counties there- in named, is a local and private act, and was not, therefore, re- pealed by the 2d see. ch. 1, of the Rev. Stat., being within the proviso in the 8th see. of that chapter. Grancly v. Morris, 6 [red. 133. (Nor is it repealed bythe Rev. Code. See ch. 121. sec. 8.) ]">. One part of a statute may : be public in its nature, while another is local and private; and those parts of the acts of 1820, 1821 am! 1822, (relating to Hie plaeesfbrthe sales of Land under execution,) which concern particular counties merely, are to be taken to be of the latter kind, and are therefore saved from the general repealing clause of the Rev. Stat., ch. 1. sec. 2. bythe proviso in the 8th section. Humphries v. Baxter, G I red. 437 (.See Rev. Cod.' ell 121, see. 8. ) 16. It is a rule for the construction of statutes, that when they make use of words and phrases of a definite and well known sense in the law, they are to be received and expounded in the same sense in the statute. Adams v. Turrentine, 8 I red. 147. 17. Every affirmative statute is a repeal, by implication, of a prior affirmative statute, so far as it is contrary to it. But the law does not favor these implied repeals, nor are (hey to be allowed unless the repugnancy be plain; and where, in the lat- ter act, there is no clause of non obstante, it shall, if possible, have such a construction, that 'it shall not operate :i repeal. State v. Woodside, 9 [red. 496. 18. In the construction of an act of Assembly, all other acts made ;„ pari materia, whether referred to or not in that under consideration, will lie taken as one system, and so construed. State v. Melton, Bush. 49. 19. Though tin/ caption as well as the preamble of a statute; A( TION ON THE CASE— T. 11 where t'hv meaning of its provisions is vague, may be called in aid of its construction, neither can control its enactments when they are full and certain. Blue v. McDujfie, Busb. 131. 20. An act it Assembly, which provides that it shall be in force from and after its /mss-m/r, is in force and takes effect from the first day orf the session in which it passed Hamlet v. Tay- lor, •"> .Tunes :')(). (See t-ev. Cede. eh. 52, sec. 35.) See ( [ndictiiii nt— Form and matters relating thereto, 7T>.) ACTION ON THE CASE. I. For Conspiracy. II. For Deceit. III. ¥01' Malicious Prosecution' IV. For Slander. V. When tlie action will or will not lie in other cases. YI. When the action will or will not ahate. '. FOS CONSPIRACY. 1. An action on the case in .the nature of a conspiracy will lie against ma', or if brought against many, a verdicl may he found in favor of all except him-. Eason v Wesibrooh, 2 Murph. 329 S. C. X. C Tern, \l. 267, (.690.) 2. A private person can obtain redress for a • msj racy by an action en the case, only when it operates to his injury, ami when, as to him, the object ie unlawful. Eason v Petway, 1 Dev. & Bat. 44. 3. To c i 'i |- reons with a conspiracy to cheal and defraud a. third person, there must be a collusion and participation in the scheme, or its execution. Mere silent observation and ae- iiuieseeii.se are nut sufficient; for unless the persons charged, by some word or deed, became parties to the plot to cheat, they could neither have influenced the acts of the person defratided, nor contributed to his losses, and, fchi refore, they are not liable to his action. Brannock v Bouldin, 4 Ired. til. 4. One may he bound to speak the truth concerning any mat- ter or thine', with which he or his rights are connected, and not suffer another to deal respecting them, under a delusion. Hut in I'esj t to matters, with which he is in no wise concerned or connected, he is not charged with the legal duty of preventing mischief to others, by communicating what he knows, hut he .may be silent. Ibid. .5. An action on the case for a conspiracy cannot be sustained 12 ACTION OX THE CASE.— I.-II. upon the ground that the defendants, having an execution levied on the plaintiff's property, required that the sale should he for specie; nor on the ground that the defendants had by fraud obtained from the plaintiff the assignment of a judgment, and thf transfei of a bond not endorsed, for in a ctftirt of law the property in tbese remained in the plaintiff; nor can it be maintained upon the ground that the defendants had fraudu- lently procured a eenveyance of a slave from the plaintiff; lor if the fraud or imposition were of such a nature as rendered the conveyance void at law, then the plaintiff had not lust his prop- erty; if the conveyance were good a! law; thru the plaintiff's only redress was in < quity. Setzar v Wilson, 4 Ired. 501. (!. A conspiracy to vex and harass a person by having him subjected to an inquisition of lunacy, for which there is no prob- able cause, is actionable. And where express malice is proved, it is no defem r palliation, that the defendants had applie I ■< r professional advice and had acted under it. Davenport v. Lynch, 6 Jones 545. II. FOR DECEIT. 1. Case lies against cue not a party to the contract, for de- ceitfully asserting that an unsound mare is sound, and fraudu- lently encouraging the plaintiff to buy her. Irwin v. SherrU, Tay. 1. 2. In an action for a deceit in the sale of an unsoun 1 uegr^ the declaration stated a false affirmation, as the means whereby the plaintiff was induced kemake the bargain ; and the making such affirmation, with a knowledge of its untruth, constituted the gravamen, he'd, that the action was conceived in case on a tort, and the declaration was good. Inge v. liomJ, 3 Hawks, 1(11. .">. Where the purchaser of a slave lias, at the time of his pur-! chase, as full a knowledge of the defect ol the slave as the sell- er has. no matter how he obtained this knowledge, he cannot afterwards recover for the defect. Brittain v. Israel, 3 Hawks, 222. 4. An action will not lie for a deceit in an executory contract, respecting the sale of land. Quere, whether, when land has been actually sold, and there has been a false affirmation as ta« title, an action for deceit will lie. Fagan v. Neiosom, 1 Dev. 20E 5. Y\ hen no loss is caused by a falsehood, an action for a de- ceit will not lie ; neither will it lie, when ordinary prudence would have prevented the deception. Farrar V. Alston, 1 Dev. 69. 6. Where a surety is informed by the administrator of his principal, that the debt has been paid, ami trusting to this re- presentation, neglects to secure himself, it seems that he can maintain an action for deceit. Ibid. \(Tlo;\ OK THE CASE.— II. 7. Moi de in a party, such as a fraudulent re tation or cono alnient, i1 is in cessary to charge in ah action fos . ■ . I Dev. 350. 8. When tli I n< ■ , in an action for deceit, in the sale of a slave, hail I aed that the slave was unsound, it was a1 i not believe it, he was not answerable for nol disclos ing it. livid. 9. If a del tidanl in an execution fraudulenth in* sheriff to sell unsound propi n ' ; a .; ej and, he may be sued by tl for a deceit. Erwin v Greenlee, 1 Dev. & Bat. 10. Where, at the time of the sale of land, a i ' audi lent affirmation ol made, yet an ai the cas< for dtx-eit will the vendi > might, by reasonable dili- have informed hhuself of its true value. , . .. 2 Ired. 32. 11. It seems that such an action will lie if a false affirmation be made of the rent of the land. Ibid. 12. Where A agr< ed to buy a number of horses from B, ami it was referred to an arbitrator to decide upon the value of the horsi s, and he decidi d thai two of them were worthless, having an incurable and contagious disease, and so informed A, yet A, by a subsequent agreement, took them and kept thi m with his other horses, whereby he lost many of the latter, it was held thai li<' could not maintain an action on the case in the nature i'f deceit against B. Spencer v McLean, 2 Ired. 93. 13. Where, in an action for a dei < it in the sale of a horse, it was j-roved that the liorse went blind i afl ■ be was sold without any subsequent hurt or ill usage; that in the oj inion of a farrier his eyes were naturally defective; that thi defect was such as would not rentier the horse Mind suddi illy; and that the defendant had bred the horse and owned him till he was nine years old; thesi are circumstances the judge must leave to the jury as tending to prove thi • n nt< •; and he has no right to say there was no evidence on that point. Qui v Pinson, '■> Ired. 47. 14. Where one has given a deed intrust on his property, author- izing a sale for the benefit of his creditors, and they have neither released their claim on him, nor assenteito the deed, he has such an interest in the property, that if, at a sal" mad.' by his trustee, he stands by and sees property sold in which he knows there is a latent defect and docs not disclose it. he makes himself liable to the purchaser, in an action on the ease tor a deceit. Cast \ Edney, 4 Ired. 93. 15. A vendor is Hal tie in an aetianof deceit, for false repre- sentations as to the title or qualities ol' a chattel sold by him ; Bmt no action for a cheat has ever been mail tained by a seller 14 ACTION ON THE CASE.— II. against a purchaser for the misrepresentations ®f the latter upon these points. Setzar v Wilson, 4 feed. 501. ll>. Where a vendee takes an article at his own risk, or with all faults ami defects, the vendor is not responsible for not dis- closing any faults or defects lie may Know to exist in the thing sold: unless be makes use of some artifice or practice to conceal such faults of defects, or to prevent the purchaser from discov- ering them. Smith v thdrt ws, 8 [red. 3. 17. In an action of deceit for the sale of an unsound slave, it is competent for the defendant to give in evidei , as a matter to aid the jury in assessing damages, what the plaintiff gave for the slave and for what be afterwards sold her Small v. Booh s feed. 47. 18. Where an action was brought to recover t&e value of cer- tain horses, alleged to have died from eating corn mixed with arsenic, which the plaintiff bought, from the defendant, it was held that though the defendant had fraudulently- concealed from the plaintiff the fact that arsenic was so mixed with the corn. yet the plaintiff could only recovepdamage to the value of the corn, provided he was informed, before he gave it to his horses. that arsenic had been mixed with it. Stafford v. Newsom, V feed. 507. lit. It is not sufficient, in an actiato on the case in the nature of deceit, to prove that the representations of the defendant were calculated to deceive, hut they must be mad" with intent to de- ceive. Ibid 20. Where a purchaser takes an article at his own risk, or with all faults, he becomes his own insurer, and the seller is relieved from all obligation to disclose any fault he may know that the article has; but he must no1 res irl to any trick or con- trivance to conceal * defect, or mislead tile purchaser. Fearer v. Blacfovett, \i feed *9. 21. tf the vendor of a -slave nsake to the vendee, al the time of the sale, an affirmation astotliB soundness of the slave, which is false within his knowledge, he is responsible to the vendee in damages. /"< rebe\ v. Gordon, 13 [red. 350. ■I'l. A dei I: rati a indeceil I' 1 r an an round negro, alleging the idness to have proceeded from drunkenness, is uol sup- ported by evidence, showing merely that the negro had a pro- io get drttnk, and a habit of intemperance. The un- soundness must l> . I u ■ ted at ll"- time of the sul'. Eaves v. Tirftij. 18 feed. 4<38. 23. Where the executor of one tenant in common, authorized la fishery, takes along with him the other tenant, and refers tin purchaser to him as one acquainted with tin: property,.. and such tenant commits a fraud in his representati if the qualities and condition of the fishery, sin h • • >outor is person-- ACTION ON THE CASE-— II. 15 ally liable in an action on the case for the deceit. Pettijohn \ Williams, 1 Jones 14.">. 24. In an action for a decit in a false warranty, on the ex - change of horses, the defects of the property which the defend- ant received from the plaintiff fcirnisli no ground of defence, .and therefore cannot be given in i videnee Odom V. Harrison, 1 Joins 402. 25. In an -action for a deceit in the sale of a mule alleged to have been unsound, the want of castration does not sustain the allegation. Duckworth v. Walker, i Jones, 507. 26. Could the want of castration be regardedas unsoundness, the fact, that the mule had the usual d< relopments in the scro- tum, would cause the maxim of caveat emptor to apply when tin sale was by public auction. Ihid. 27. A person is not guilty of a fraudulent concealment, so as to subject him to an action for a deceit, who foils to disclose in- formation which he has received as to unsoundness iuthe article. if lie did net believe such information to be hue. Gerkins v Williams, 3 Jones, 11. 28. An action for a deceit in the false representation of the quality of a $5ng will not lie, if the same sources erf informa- tion are equally open' to the buyer and seller. Fieffls v. Mouse, 3 Jones 72. 2'.». An action on the case for deceit will not lie for a fraud- ulent representation, upon the sale of a tract of land, m to where certain lines ran. and as to particular lands being ineladed with- in the motes and bounds 'called for in the deed. Eyilev. Bird, ."> Joins 222. 30. Where the seller of a slave refuses to insert a warranty of soundness in the bill of sale, but is willing to warrant the title, anil a neighbor informs the buyer that thenegro is un- sound, the symptons being neither hidden nor hard to discover, the rule of caveat en lies, notwithstanding an affirmation by the seller that the slave is sound; and it cannot be subi as a question for the jury, in an action for deceit, whether the buyer relied on the assertion of the seller or the information given by the neighbor FuUemoider v Boston, 3 Jones 528. 31. Where i'>, a tli ■ ■• ■ nil of the makers of a promissory note, payable to A, ; on him. by fraud and misn | i , ! i 1 1 1 n i it i ; r pei m i i satisfaction of nis note, and thus pi an A a receipt in full of his note, it i ■ i ! thai though the note payable to A was worth nothing ; of th in olvency of the n and was never dehvered to them (having been filed in the clerk's I A was entitled to recover from B, at least, Mo ' es 543. 32. Where counts for a deci it and ■ ranty are joined in the i me declaration, the plaintiff may recover on the count LS ACTION 'ON THE CASE. I for tke false Warranty, without alleging or proving a scienter. Blanton v Wall, d Jones, 532. 33. In an action for a deceit in tin sale of a 1 orse, where the unsoundness alleged was the loss of the frogs of the fori, w hicb might have been discovered upon ordinary inspei tion, in thing having been said or done by the seller to prevent enquiry, /'/ was held that the plaintiff could not recover. Tho >j> n\ v Mor- VIS, - r ) done:-, la'. 34 Mere silence on the pari ofa vendor, who has km ■■ ! dge of a latent defect in the article "old. will render him liabL i an action for a deceit ; but it is otherwise it the defect hi p for, in such ease, he is liable van a he maki s a false stateim resorts to some artifice to conceal tiie defect. Broin 6 -lone-. 103. 35. A. sheriff, who is selling property, is nol liabL t an action of deceit for mere silence as to the existenc iof a prior lien on it, in his hands, but if he does or says anything intended or calcu- lated to mislead a purchaser, in this respect, lie is liable! Wicker. v. Worthy, G Jones, -221. S. C, G Jones, 500. '. person cannot sustain an action of deceit with respect to property purchased by him, unless he uses reasonable can? tion and diligence to prevent the deceit, but enquiring- ofa sherifl and relying upon his information, as to any liens and levies of executions .he may have in his hands upon the property sold, is exercising reasonable caution and diligence. Ibid,S. •('., i; Jones, ■'•« ;;?. Where b< Bh the buyer and seller of a horse could and did see a knot i n aud the nature of it: it was held that sthis amounted to some -.evidenee. on the question whether artifice had been msec! b$ theseller, to divert the buyer's attention from !h- d> feet. Simmons v. Hbrton, 6 Jones, 278. 38. The purchaser of cotton, packed in bales, is not guilty of negligence in net cutting them open to examine whether sand has not lie, -ii mixed with the cotton; and the rule of caveat emptor does not apply lo him under such circumstances. Stout v Har? per, (i .lone:-.. :\ 17. .".!». The private sale ofa horse on a Sunday by a horse dealer, to a person who knew his calling, was held, (Battle J., dissenting) not to be such violation, by tire buyer, of the act, Rev. Stat. ch. 118, sec 1, as to prevent him from recovering in an action for a .deei-ii.aeil false warranty, against tho seller. Melvinv. Easley, ,7 Jones., 856 (See Rev. Code. ch. 115, sec. 1.) 4(1. In an ae.i ■.• tor deceit in the sale of a horse, which was effected With spavin, and was slightly lame with a visible hurt •on the leg affected, hut the plaintiff took the horse without, see- ing him in motion; it wet* held, that the defect being pad lit. and there 1 eing no evidence o-i any art to withdraw the jakintifT's ACTION ON THE CASE.— H-ITI. 17 attention from it. lie could not recover. Ltiwson v. Bat r, 7 Jones, 461. 41. In an action for deceit, the alleged fraud is never presum- ed, and he who makes the allegation must prove it ; and every man is presumed to be honest in his dealings until the contrary is shown. Tomlinson v. Payne, 8 Jones, 108 (See Executors and Administers — Of their liability to credi- tors, Ac, 35.) Ill, FOR MALICIOUS PROSECUTION. 1. In an action for malicious prosecution, whether there was probable cause is a question of law ; but the facts, which go to show it, must be ascertained by the jury. Legget v. Blount, N. C. Term II 123, (560.) 2. To support an action for a malicious prosecution, in taking out a warrant against a plaintiff, on a charge of perjury, it is necessary tor the plaintiff to show a discharge ; ami if a party he bound over to attend court, anil does attend, he is discharg- ed, unless lie be rebound, or seme action be taken against him. Murray v. Lackey, 2 Murph. 368. 3. In an action for a malicious prosecution, the dismissal of a State's warrant by a magistrate, who tried the case, ie prima facie evidence of the want of probable cause, and throws upon the prosecutor the burthen of proving thai there was probable cause. Johnston \. Martin, 3 .Murph. 24X. 4. If (me man prosecute another lor real guilt, he is not liable to an action on tie- case tor a malicious prosecution, no matter how malicious his motive may lie j nor is he liable, if he prose- cute him for apparent guilt, arising from circumstances which he honestly believes. Plummer v. Glum, :> Hawks, 66. 5. The question of probable cause is compounded of law and fact; whether c .lain circumstances are true is a question of fact for the jury; whether, if true, they amounl to probabL cause is a ipiesti if law for lie court; and a party has a right to the opinion of the court distinctly, as to the law, upon the supposition that he has established certain facts to tin- sat- isfaction of the jury. Ibid. li. Case, for suing out an original attachment, is to be consid- ered in the same light with an action brought for suing out a writ, where nothing is due, and to support 1 he action the plain- tiff must show malice and the want of a probable cause in the defendant. No action lies for irregularly suing out an attach- ment, but only for suing it on: for the purpose of oppression and wrong. Williams v Hunter, 3 Hawks 545. 7. A discharge, by a magistrate, upon a- warrant for a felony. is prima facie evidence of the want of probable cause, in an action by the defendant against the prosecutor for a malicious prosecution. Bostick v Buth rfora\ 4 Hawks 83 18 ACTION- ON THE CASE.— III. 8. The plaintiff cannot recover in case for a malicious prose - cution, without producing the record of his acquittal; and where the defendant in the indictment was convicted of the charge, he cannot in any form of action recover against the prosecutor, although he shows that the conviction was the re- sult of conspiracy and perjury. Williams v Wovdhouse, 31 Dev. 257. 9. Probable cause is such a suspicion as would induce a rea- sonable man to commence a prosecution ; and where a witness- swore that a justice, upon the return of a State's warrant, said that "he would commit the defendant unless,!' &c, and the justice had in fact said, "he would bind over the defendant unless," &c, it was held that the variance did not constitute pro- bable cause for a prosecution for perjury. Ccdxmess v Martin, 3 Dev. 454. 10. Suing out a warrant " for talcing a false oath " in a certain suit, "knowing it to be false," is a prosecution for perjury. Caba- ness v. Martin, 4 Dev, 106. 11. An action on the case lies against any person who, mali- ciously and without probable cause, prosecutes another befor»- any tribunal, and thereby subjects him to an injury, either in his person, property orreputation. And a court of law can de- termine whether a suit in equity was brought for the purpose of oppression and wrong. Davis v. Gully, 2 Dev. and Bat. 300. 12. An action for a malicious prosecution cannot be sustained,, where a verdict and judgment of conviction have been had in a court of competent jurisdiction, although the party was after- wards acquitted i, ,i>< >u an appeal to a superior tribunal. GriJJis v. Settars, 2 Dev. and Bat., 4'.) ± 13. In an action for a malicious prosecution, a verdict and judgment of conviction in a court of competent jurisdiction,, although the party was afterwards acquitted upon an appeal to a superior tribunal; is conclusive evidence of probable cause, and precludes the plaintiff, in the action lor the malicious prose- cution, from showing the contrary.. Grijfis v. Sellars, -4 Dev. and Bat., 17(1 14. Before an action can be sustained for a malicious prosecu- tion or arrest, it must appear that the prosecution was legally determined; and if then- be no evidence of the fact, it is not error in the court to refuse to leave it to the jury to find whether the prosecution was determined. Hardin v. Burden, 1 Ired., 143. 15. In an action for malicious prosecution, those facts and cir- cumstances, and those alone, which were known to the prosecu- tor at the time he instituted the prosecution, are to be consider- ed in determining whether he had probable cause. Any othts tacts, which may be established on the trial,, to prove the inno- ACTION ON THE CASE.— III. 10 cence of the person accused, are irrelevant to the question of probable cause- Swaim v. Stafford, 3 Ired., 289. 16. A person may recover damages, in an action on the case, for a malicious prosecution of his slave. Locke v. Gribbs, 4 Ired., 42. 17. If a prosecutor, on a charge of larceny, have reasonable ground, at the time he institutes the prosecution, to believe that his goods have been stolen, he is not liable to an action on the case for a malicious prosecution, though he may have discovered, after the prosecution was coninaenced, that his goods had not, in fart, been taken out of his possession, but had been accident- ally mislaid. Swaim v. Stafford, 4 Ired., 392. 18. A search by a store keeper, who supposed his goods to have been stolen, for the purpose of ascertaining whether they were missing, need only be such as might reasonably satisfy him of the fact ; as the law does not require the utmost diligence in making it. Ibid. 19. The mere possession by one person, of goods supposed to be stolen by another, would not afford a sufficient probable cause for a prosecution against the former, as the receiver of stolen floods, when no enquiry was made of such person, and no opportunity was given to him to explain how such possession was acquired. Swaim v. Stafford, 4 Ired., 398. 20. In an action on the case for a malicious prosecution, the want of probable cause does not necessarily imply malice in th« prosecutor, so as to authorize the judge to pronounce that this want of probable cause implied such malice. And, as the de- fendant in the action may prove that the plaintiff was actually guilty of the offence charged, so may he also prove matter* showing probable cause, though he did not know them at the time he instituted th" prosecution. Bell v. Pearcy, 5 Ired, 83. 21. The right to recover in such an action depends upon tho entire innocence of the plaintiff and malice in the defendant. — Ibid. 22. Tn an action for malicious prosecution, where probable cause is alleged, it is the duty of tie- court to direct the jury, that if they find certain facts from the evidence, or draw from them certain other inferences of fact, there is or is not pro- bable cause, thus leaving the questions of fact to the jury, and keeping their effect in point of reason, for the decision of the court iis a matter of law. Beale v. Boherson, 7 Ired., 280. 23. In an action Eor a malicious prosecution, it is sufficient, in order to prove the prosecution terminated, to show that the plaintiff was bound to appear at a term of a court to answer a criminal charge, and that he was not rebound. Much more is it so, when the solicitor makes an entry on the docket, that he does not think the evidence sufficient to convict. Bice v. Pon- der. 7 Ired. 390. 20 ACTION ON THE CASK— III. 24. It is nota sufficient defence to an action for a malicious prosecution, that the defendant really believed the plaintiff guilty of the crime, with which he charged him, but he must prow facts and circumstances, which wouldinduce a reasonable suspicion of the guilt in the minds of unprejudiced and, at least, ordinarily "intelligent persons. Und. 25. If the truth of the charges made in a libel, when the libeller has been prosecuted for it. will justify him in bringing . an action for malicious prosecution, the charges ought to be proved to be strictly true by plain and full evidence. Johnston v Lance, 7 Ired. 448. 26. It is no objection to an action for a malicious prosecution; that the party was arrested under a warrant having no seal; nor is it necessary in such an action to show that the name of theperson, who commenced the prosecution, was endorsed on the bill of indictment as prosecutor. Kline v Shvler, < s I red. 4S4. 27. In an action for a malicious arrest and holding to hail, the plaintiff must allege and prove a legal determination of the original action before the commencement of his suit. Howell v Edwards, 8 Ired. 516. 28. A defendant, in an action for a malicious prosecution, is only to be fixed with a want of probable cause, by what he knows when he commences his prosecution; although lie is allowed, to protect himself by any facts, which he is afterwards able to prove, which show, or tend to show, the plaintiff's guilt Johnson v Chambers, 1" [red. 287. 29. The dimissal of a State's warrant by a magistrate raises a presumption of want of probable cause, but not of malice; and as the law raises no presumption ol malice, the question of malice must be left to the jury, as a question of fact, and cannot be decided by the court. Ibid. 30. In an action for malicious prosecution, the plaintiff must show particular malice en the part of the defendant towards him; and this may be proved by positive testimony of threats or expressions of ill will, used by the defendant in reference to the plaintiff, or it may be inferred from the want of probable cause, and other circumstances, such as are apt to engender angry feelings. Brooks v Jones, 11 Ired. 260. 31. In an action for malicious prosecution, where it appeared that there were circumstances of a suspicious character against the defendant in the prosecution which would amount to proba- ble cause, if unexplained, yet if these we're denied and satisfac- torily explained to the prosecutor before he commenced the prosecution, he cannot avail himself of the defence of probable cause. Honeycut v Freeman, 13 Ired. 320. 32. Case for malicious prosecution may be maintained where & warrant is sued out, on an accusation of larceny, from a justice. ACTION OX THE CASE.— III. 21" although it is not placed in an officer's hands, nor further pro- ceeded on. Hdmes v Johnson, Bush. 44. 35. Whether certain supposed facts constitute probable cause for a prosecution is a question oflaw, to be decided by the court and not by the jury. It is the duty of the Judge, leaving it to the jurv to ascertain the existence of the facts, to declare what inference as to probable cause results therefrom; and it is error to leave such inference to be drawn by the jury. Viekers v Logan, Busb. 393. 34. In an action for a malicious arrest in a civil suit, probable cause is a question for the court; but malice is a matter of fact for the jurv, which may he interred from want of probable cause. Bradley v." Morris, Busb. 395. 35. In an action on the case for wrongfully suing out an attachment, it is sufficient to show a want of probable cause; for this being a civil proceeding, it is not net essary to shew that the defendant was actuated by malice in instituting it. Kirk- ham v. Coe, 1 Jones, 423. ;>ti. One who prosecutes another for a perjury in swearing to an immaterial fact, which could notamount to a perjury, cannot be held to have acted under a probable cause of suspicion, even though he may be able to prove the falsity of the oath. Smith v. Dbaver, 4 Jones 513. 37. Where it was proved that a forgery had been committed in a note, and that at the same time, and in the same ink, and by the same hand, an interlineation had been made in a justice's warrant on the note, and on a trial against !> for the forgery, it was proved and admitted that either the present plaintiff or B had admitted the forgery, it was held that the oath of the plain- tiff, as a witness, denying that the interlineation in the warrant was in his handwriting, was material to the issue then on trial, ami that if he swore falsely in that respect, it was perjury, and he. consequently, could not maintain an action for malicious prosecution against the defendant, who had prosecuted him for the perjury. Smith v. Deaver, 6 Jbne, 5*63. 38. Where an action was brought against one for having sued out a writ against the plaintiff, and, upon his being arrested, having consented that the sheriff might take a sum of monej from him in lieu of hail, it was held, KShat it could not lie consid- ed in any other light than an action for a malicious arrest, or malicious prosecution, in which the termination of the former suit must be shown. Heitrit v. IVboten, 7 Jones, 182. See ( Evidence — In cases of malicious prosecution and slandei 1-2-3-4-.N-D-14-15-17-18) (Trespass— To persons ami personal, property, when it will lie — 11.) 22 ACTION ON THE CASE.— IV. IV. FOR SLANDER. 1. In an action of slander, words bear that signification which they have in common parlance ; therefore to say that "one has sworn false in court," implies that he has committed perjury, because in this country there is no court which has not the power to administer an oath. Hamilton v Bent, 1 Hay. 116, (135.) 2. Upon the pleas of the general issue and justification in slander, the defendant may prove in mitigation of damages the plaintiff's bad character, but he shall not prove any particular- fact. Vick v Whitfield, 2 Hay. 22'2, (396:) 3. It is not actionable to say of a man "lie, one of our little Chowan justices of the peace, was taken up a few nights ago playing cards with negro Quomana in a rookery box, and com- mitted to jail, and remained there until next day nine or ten o'clock, and then was turned out and split for the country," when it is not charged in the declaration that the plaintiff was a justice, or that the words were spoken of him in relation to his office. McGuire v. Blair, 2 Car. L. R. 443, (32S.) 4. It teas held not actionable to say of the plaintiff that he had sworn to a lie, "in obtaining a warrant from a justice re- specting a deer," because it appeared that the justice had no jurisdiction of the offence, and therefore perjury could not be committed in taking the oath. Boling v Luther, N. C. Term R. 202, (635.) 5. If the libellous scatter in a production be not direct, but only libellous by (division or reference, the fact understood must be stated by introduction, and must be pointed at by explanatory inuendoes. States Neese, N. C. Term, R. 270, (601.") 6. In an action of slander, the proof of speaking the words osKast correspond, in substance, at least, with the charge in the declaration. Hence a declaration, averring a charge of an in- famous offence, is not supported by proof that the defendant said that there was sucB a report, but he had great difficulty in believing it. Hmion-v. Reams, 2 Murpa., 380. 7. Wfeere the defendant charged the plaintiff with having stolen a note from him in Virginia, where it was proved the stealing of notes was;,, by law, a larceny at the time to which the charge referred ; it was held, that the wpriis were actiona- ble, for though the ofeMice of stealing in Virginia was hot pun- ishable in this State, the effect of such an imputation will fol- low a man wherever he; goes, and the gravamen of the action is the social degradation. ISMpp v. McCraw, 3 Murph., 463. 8. In a charge of forswearing, unless it appear from the ac- companying words, that a judicial forswearing was meant, the plaintiff must show upon the record, that the defendant alluded U> some particular forswearing, which amounted to perjury.—- ACTION ON THE CASE.— IV. 23 Therefore, where the plaintiff charged in his declaration, that the defendant said of him, "he swore a lie, and I can prove it," and there was no colloquium set forth, of any judicial proceeding, the plaintiff •was non-snited. Brownv v. Diila, 3 Mnrph., 574. 9. Though from the publication of a libel, unexplained, malice will be prima facie implied, yet as the act may be innocent and in some cases justifiable, the circumstances, under which it was done, should be left to a jury. Erwin v. Sumroio, 1 Hawks, 472. 10. Words to be actionable per se, must, impute some crime punishable capitally, or an infamous offence, by f the common, as distinguished from the ecclesiastical, law; and not merely im- pute an imperfect sense or practice of moral duty, virtue or obliga- tion; hence, it icas held, not to be actionable to say of a man: "1 Shave said he was the father of his sister's child, and I say so again, and I still believe he was." Eiirc v. Odom, 2 Hawks, 52. 11. In an action for slander, in charging the plaintiff with perjury, defendant is not 'bound, in support of his plea of justifi- cation, to produce such evidence as would convict the plaintiff, if he were on trial for the offence. Kincade v. Bradshaw, 3 Hawks. 63. 12. Words, in order to be slanderous, must lie spoken with an intent to slander, ami must be so understood by the hearers.- — Stoddard v. Linville, 3 Hawks, 474. 13. To say of a plaintiff that he has forged.a letter in defend- ant's name, containing this clause, " I have to inform you that I have received your money, and want you to come and receive it," is slanderous, because it is a forgery at common law to count- erfeit any writing with a fraudulent intent, whereby another person may be prejudiced Ricks v. Cocqxr, 3 Hawks, 587. 14. It is not actionable to charge a man with burning an out- liouse, not parcel of the dwelling house, because the words do not impute to him a felony or other crime, the punishment of which is infamous. Brady v. Wilsofi, 4 Hawks, 93. 15. In slander, the defendant may prove a general report of the truth of the words spoken, in mitigation of damages, but not in justification. Nelson v. Evans, 1 Dev., 9. 16. A count, charging a defendant with speaking slanderous words, is .not supported by proof that he maliciously procured another to speak them. ITatts v. Greenlee, 1 Dev., 210. 17. In a declaration for slander, the office of an inuendo is to connect words, not in themselves actionable, with some prece- dent fact formally averred, winch explains their meaning. JJ'atts w. Greenlee, 2 Dev., 115. 18. Words, not in themselves actionable, cannot be rendered so by an inuendo, without a prefatory averment of extrinsic facte, which explains their meaning, and makes them slanderous ; hence, where the words were " all Watt's girls are big," and the declaration contained no averment of a fact, affixing a slander- ous meaning to the wards, an inuendo affirming the meaning te 24 ACTION ON THE CASE.— IV. be " big with child to negro B," was held to be insufficient, and the declaration defective. Ibid. 19. The word "publish,' - is sufficient, in a declaration for slan- der, without charging the words to be spoken in the presence and hearing of others. Ibid. 20. The act of 1808 has given a precise meaning to the term "incontinent," and having rendered a charge of it against a wo- man actionable, a count, charging the defendant with saying the plaintiff is " incontinent," is good without prefatory matter, or an inuendo. Ibid. 21. In a declaration for slander, the inuendo must contain a rational inference from the colloquium, or other introductory mat- ter. The colloquium and introductory matter are put upon, the record, that the court may see if the jury have made a reasona- ble construction of the words. Brittain v. Allen, i Dev., 120. 22. The usual and formal mode of pleading is, first, to set forth the colloquium, then the ■words, and deducing a slanderous meaning from them by a proper inuendo: but a declaration, in which the words spoken and the inuendo were first set forth, and then a fact to warrant the inuendo, was held sufficient. — Ibid. 23. The words "he has stolen my bee tree," refer to the tree, and nottothe bees orrhoney.; if referring to the latter, theymighthave been actionable,. as a qualified property in bees and honey exists in the owner of the soil, whereon they are found; but if the tree, and a standing tree, is meant, they are not actionable; and the word "tree," without explanation, ex vi termini means a. standing tree. Idol v Jones; 2 Dev. 162. 24. The words " he was a rogue, and kept at home a rogue hole, and harbored rogues " are not actionable. Ibid. 25. Words which do not in themselves import a slanderous meaning must, in declaring on them as slanderous, be rendered so by inuendo, connected with an averment that they were spoken of the plaintiff. But if the words are of themselves slanderous, it is only necessary to aver that they were spoken of the plain- tiff. Brittain v AUen. 3 Dev. 16T. 26. In actions of slander, the quantum of malice is material in estimating the damages, and 1 to establish that, evidence is admissible of words spoken by the defendant, not declared on;, but the jury should be instructed as to the purpose for which the evidence is introduced. Ibid. 27. The repetition of a slanderous report is actionable, and the defendant cannot justify by proving the existence of the re- port, without also proving it to be true.. Hampton v Wilson 4 Dev. 468. 28. The rule that one, who repeats a slanderous report, and gives the name of his author, may justify by pleading that fact. Etas been doubted, and must depend upon, the. intent, with which ■ ACTION ON THE CASE.— IV. 25- the report and the name of the author are mentioned. It seems that it does not obtain in actions for libel. Ibid. 2!). In an action for slander, where the words contain an im- putation of murder, the plaintiff may be entitled to recover,, although the defendant should prove that the person alleged to be dead is still alive, if these, in whose presence the words were spoken, had well grounded reasons to believe that he was then dead. Sugart v Garter, 1 Dev. & Bat., 8. 30. In actions for plander, it is not admissible to prove in mit- igation of damages, that previous to speaking the words, the plaintiff was in the habit of vilifying and abusing the defendant. Goodbreadv Ledbetter, 1 Dev. & Bat. 12. 31. Evidence of the plaintiff's general bad character is admis- sible in mitigation of damages, in an action of slander, and it may be given under the plea of the general issue. Ibid. 32. To charge a man with harboring a runaway slave is not actionable, without proof of special damage, although for such offence he might, if guilty, be indicted, and upon conviction be fined and imprisoned. The charge, to sustain an action, must impute an offence to which is annexed an infamous punishment, a punishment which involves social degradation, by causing the loss of th&:libera lex. Skinner v White, 1 Dev. & Bat. 471. 33. In .dander, the words are to be taken in their ordinary acceptation among those, in whoso presence they are uttered. — Hamilton v Smith, 2 Dev. & Bat. 274. 34. In an action of slander, in which the defendant is charged with having imputed perjury to the plaintiff, the plea of justifi- cation is not sustained, if the jury are satisfied that the plaintiff was honestly mistaken in what lie swore to. In such an action, the plea of justification must contain all the averments, which, if true, constitute the crime of perjury. Jenkins v Cockerham, 1 Ired. 309. 35. Where a man utters slanderous words of another, and at the same times avers that he can prove the truth by a third per- son, whom he names, this last averment is no mitigation, but rather an aggravation of the slanderous charge and tends to prove malignity in the speaker. James v Clarke, 1 Ired. 3,'.>7. 36. Calling- one a thief or a murderer, in the absence of con- text or ofproof to the contrary, on the trial,. ex vi termini imputes to him a felony, and therefore an action of slander lies for such words. Dudley v Robinson, 2 Ired. 141. 37. The words "which amount to a charge of incontinency," and for which an action ol slander is given to a woman, by the act of 1808, mustimport not only a lascivious disposition, but the criminal act of fornication or adultery. Thus, to say of a woman that "she was kept by a man " is actionable as a slander under the act, McBrayer v 'BaU, 4 Ired. 136; (See Rev. Code, ch. 106.) 26 ACTION ON THE CASE.— IV. 38. He who repeats a slander, without giving his author, or, if he give the author, with a malicious intent, is himself liable to an action for the slander. Ibid. 39. To charge a man with having stolen bank notes in South Carolina is not actionable in this State, unless it be shown by Jtroqf that, by the laws of South Carolina, such stealing is sub- ject to an infamous punishment. No such presumption can be made by the court, as by the common law the stealing of bank notes was not indictable, nor was it so in this State until made so by statute. Wall v Hoskins, 5 Ired. 177. 40. Where in speaking of a trial before a justice, in which the plaintiff had been a witness, the defendant said that " he (the plaintiff') had sworn falsely," these words import that the plain- tiff had committed perjury, and are in themselves actionable. — Bernhardt v Potts,Tl Ired. 403. 41. Where one repeats an. oral slander and gives the name of his informant, he, is justified or not, according to the quo aninio with which the charge ;is repeated ;and propugated. Johnston v Lanee, 7 Ired. 4^8. 42. In the case* of a\written libel, iShe mention of the name of the author, or the general rumor, of the libellous matter, will not excuse or jnstify;the publication of such matter even if the author or the rumor be ; distinctly proved. Ibid. 43. Where a; person -charges another with perjury and is sued in an action for the slander, it is not sufficient for the defendant to prove simply that what the plaintiff swore was false, but he must convince the jury by his proof that the false oath was taken corruptly. Chandler v Robinson," Ired. 480. 44. In an action of -slander, charging that the defendant. . speaking of a particular suit, affirmed that the plaintiff " had sworn to a lie," the particular evidence given by the plaintiff on .the trial of the suit is never set forth in the declaration, and therefore need not be proved. But if the defendant had, in speaking the words, gone on to specify the matters testified by the plaintiff, and the point on which he had sworn falsely, then it would have been incumbent on the plaintiff to have set forth the whole truly in his declaration, and if upon the whole, thus stated and proved, the matter, to which the alleged false oath related, appeared to be immaterial, the action could not be main- tained. Smith v. Smith, 8 Ired. 29. 45. In actions of slander, evidence of the truth of words spoken cannot be received under the general issue, even in mit- igation of damages ; though evidence of general bad character may be so received. Ibid. 46. Where slanderous words are uttered, the law prima facie implies malice, except in the case of a privileged communica- tion, which is, where the party is acting under a duty, either legal or moral, towards the person to whom he makes the com- ACTION ON THE CASE.— IV. 27 munication. In such a case, malice must be proved by the plaintiff, and it is a question of fact for the jury. Adcock v. Marsh, 8 Ired. 360. 47. A charged B with perjury, in swearing before a justice to the following affidavit: " A has a certain cow in his possess- ion, that belongs to him and said B; and the description is red sides, with some spots, and unmarked:" it was held, that the words were not actionable in themselves, as the declaration did not aver, nor the proof show, that the oath was taken in a pro- ceeding, in which an oath could be judicially administered. — gtuderv. Wilson, 10 Ired., 92. 48. Where the plaintiff had been constable in 1843, and again in 184fi, and during the latter year, the defendant said of him, that while he was constable in 1843 Vie had made a false return; it was held that he could not maintain an action of slander for those words, unless he alleged and proved some special damage. Edwards v. Howell, 10 Eeed. 211. 49. Words slandering a man, as to his conduct in office, pro- fession, &c, from which the law necessarily implies damage, must relate to the office. lie., in which the person slandered was engaged at the time of the speaking- ©f the words. Ibid. 50. In an action of slander, when the charge is made by using a cant phrase or a nickname, or when advantage is taken of a fact, known to the persons spoken to. in order to convey a meaning, which they understood by connecting the words (of themselves unmeaning^ with such fact, the plaintiff is obliged to make an averment of the meaning of such cant phrase or nick- name, or of the existence of such collateral fact, for the purpose of giving point to the words, and of showing that the defendant meant to make the charge complained of; and, in such cases, there must also be an averment, that the words were so under- stood by the persons to whom-they were addressed. These avcr- ments ai - e traversable, and must be proved, differing entirely from what are called inuendoes, which need no proof. Briggs v. Byrd, 11 Ired., 353. 51. In an action of slander, tinder the statute. 'for charging that the plaintiff had a criminal intercourse with one A, at a particu- lar time and place, the defendant cannot justify by showingthat she had such intercourse with A at another time and place. — Sharpev. Stephenson, 12 [red., .'lbs. 52. The defendant, in such an action, in a pka of justification must aver and prove the identical offence: and when any cir- cumstance is stated, which is descriptive of and identifies the offence, it must be averred and proved, for the purpose of showing that it is the same offence. The plea however is not favored; but when other descriptive circumstances are 1 proved, so as to show clearly that it is the offence charged, a slight variation in .some of the circumstances, which -may be ascribed to mistake, -28 ACTION OX THE CASE.— IV would not be fatal, as, for instance that it was Saturday instead of Sunday, aud the like. Ibid. 53. A person is not answerable, in an action of slander, for anything he s&ys in honestly preferring, before a judicial officer, complaints against an individual for offences alleged to have been committed by him; and prima facie every application is to be deemed honest, and to have been made upon good motives, until the contrary be shown. Briggs v. Byrd, 12 Ired., 377. 54. In such cases, whether the party "complaining acted bona fiih'. or from a wicked and malicious mind, is always an open question. The opposite party is, therefore, at liberty to prove malice either by express evidence, ©r by attending or collateral circumstances. Ibid. 55. In an action of slander, evidence of the sense in which the words were understood by the hearers, must he of the sense in which they were understood, at the time they were uttered. Ibid. 56. In an action of slander where the words proved are not actional ile in themselves^ they cannot be made so by the aid of other words, spoken at a different time and place, which are barred by the statute of limitations. Jonesv. June*. 1 -Tones, 495. 57. In an action of slander, for charging the plaintiff with murder, the same cogency of proof is -not necessary in support of the plea of justification, as would be required to coiawiet the plaintiff, if he were on trial for the imputed capital offence. — Barfield v. Britt, 2 Jones, 41. 5.S. A master, who is acting as counsel for his slave; on a trial of the slave before a competent tribunal, is not liable in an ac- tion of slander, for any words spoken of one of the witnesses, which are material and 'pertinent to the issue. Shelferv. Good- iiuj. 2 Jones, 175. 59. In an action for words spokeu, charging the plaintiff with the crime of bestiality, it is not necessary for him to aver and prove that he was old enough to be able to commit the crime. Chambers v. White, 2 Jones, 383. (iO. Where words, which were alleged to contain a charge .of perjury, could only be made to convey that idea by reference to a swearing in a suit in court, ami it appeared that the plaintiff was not sworn at all in that suit, and that the oath which he did take, and to which only the words spoken were applicable,-, was extrajudicial, it was held that an action for slander would aot lie. Mvlmiic v. iSeUars, 3 Jones, 199. 61. Where, in an action for defamation, it appears that the de- fendant had a right to> make a privileged communication, if in professing to do so he state what is false, the inference of malice is.against him. and it is incumbent on him to show that he acted liona fide to the best of his information and belief, in making 1 communication. Wakefield v. Smithwick, 4 Jones, 327. \( HON OX THE CASE.— IV. 29 ii2. Where tke words charged as a slander were, "that the plaintiff had sworn falselyin a trial before a justice of the peace, ■us to an account in his favor against the defendant;" it was held that the plaintiff was not bound to show that the person, who acted as a justice on the trial referred to, had been duly commis- sioned as such. Pitgh v. Need, 4 Jones, 367. 63. A letter, written and sent to the plaintiff, charging him with "trying to defraud the defendant for a long tune, and with having done so, as much as lav in his power" and contain- ing, besides, angry and threatening language, and forbidding all intercourse between them, was held proper to be submitted to the jury to determine whether the language was intended in a sense injurious to the plaintiff and the court had no right to as- sume on the trial, that the writing was not a libel. Simmon* v. Morse, i> .lonos, 6. 64. Words, which impute to a female a wanton and Iacivions disposition only, are not actionable. Lucas v. Nichols, 7 Jones, 32. 65. Words of doubtful import, one sense of which may how- ever he considered slanderous, may probably be left to the jury to determine in what sense they were meant. Ibid. (iii. Words, spoken after action brought, cannot aid doubtful or ambiguous words, so as to make them slanderous. II . 67. A declaration in an action of slander, charging the slan- derous words as having been spoken affirmatively, will uol In- supported by proof that the words were spoken interrogatively' King v. Whitley, 7 -lours. 529. 68. Where the words charged in a declaration as slanderous have a fixed and unambigoou ..-. it is not competent for a witness to say that he understood the speal an differ- ently from the common import of such words. Pitts v. Pace, 7 Jones, 558. 69. The words, " Von as good as stole the canoe of J H," are not actionable, per se. Stokes v. An y, 8 Jones, 66. 70. It is not actionable, without showing special damage, to charge a white man with being a free negro; and it does not alter the ease that such man was a minister of the < iospel. — McDowell v. Bowles, 8 Jones, 184. 71. In a declaration for slander, in charging the plaintiff with perjury in another State, it must be averred and proved, that by the laws of such State perjury is an offense, to which is annexed an infamous punishment. Sparrow v. Maynard. 8 Jones, 195. 72. An attempt to commit a felony is only a misdemeanqr, and a charge of such an attempt is not actionable, per se. Wil- son v. Tatum, s Jones, 300. See (Costs — In civil proceedings; when the defendant pays costs, !• ;) (Damages-^-By what rule to he assessed^ 16;) (Dam- ages — What will increase or mitigate damages. 9;) (Evidence — 30 ACTION ON THE CASE.— IV- V. In cases of malicious prosecution and slander, 5-6-7-10-11-12- 13-15-1(5-19-20-21-22-23-24;; V. WHEN THE ACTIOS WILfc,. OB WILL NOT r LIE IN OTHER CASES. 1. If one induce a slave, who is a ferryman, to take too heavy a load into his boat, whereby the slave' is drowned, the owner shall have case against the person and! his executors. Spivy v. Farmer, 2 Hay 339, (519.) 2. The hirer of a slave is not responsible for his loss, though killed while in the hirer's service, if he used ordinary care and attention, such as a prudent man would afford to his own pro- perty. Williams v. Holcombe, 1 Car. R. L. 365, (33.) 3. Case is the proper action to recover damages against th»- hirer of a slave for a year, who placed him, without the consent of the owner, in the employment of a person, who cruelly beat him and greatly impaired bis value. Goioen v. Chapen, 2 Murph. 61. 4. When a slave is hired, and killed during his term of hiring, case is the proper remedy for the owner., against the slayer. — Billiard v. Dortch, 3 Hawks, 246. _ 5. When a house under a lease is pulled down by. a trespasser,. during the term, the owner can maintain) case for the injury to the freehold, and is in law entitled to recover damages, th« amount of which must depend upon the circumstances of tha case. Oft v. Grice, 4 Dev. 477. 6. Where one person carried on a suit in the name of another, without, or against his consent, whereby the latter was compel- led to pay costs, he may maintain an action on the case against the former, to recover damages for the injury he has thus sus- tained. Metcalf v. Alley, 2 Ired. 38. 7. Where, in an action on the case against a railroad company, for damage caused by their negligence, the plaintiff shows damage resulting from the act of the company, which act, with the exercise of proper care, does not ordinarily produce injury, he makes out a prirnafaeie case of negligence sufficient to en- title him to recover, unless the company prove that they had used proper care, or prove some extraordinary accident which rendered care useless, EUisv. the Portsmouth & Roanoke Hail- road Company, 2 Ired., 138. 8. If in the prosecution of a lawful employment, a pure acci- dent occurs, no action can be supported for an injury arising therefrom; but it ig3>th«erwise where any Mime or carelessnejss is attributable. Garris v. Portsmouth and Roanoke Railroad, 2 Ired., 324. 9. Where the engine, running on the railroad tract, killed a eteer under such circumstances as showed that the killing was- ACTION ON THE CASE.— V. 31 accidental, it was held, that the company was not responsible for the loss. Iliid. 10. The act, giving jurisdiction to a justice in cases of stock killed on a railroad, does not alter the rules of the common law in relation to such injuries. Ibid. (See Eev. Code, ch. 17, Bee. 7.) (The killing is now made prima fade evidence of negligence, provided the suit is brought within six months after the cause of action accrued. See Act of 1856, ch 7.) 11. A plaintiff has a right to recover damages, in an action en the case, for an injury done by a defendant to his slave while hired out, if the injury were unjustifiable and were of such a nature as impaired the value of the slave after the time of hiring had expired. Copeland v. Parker, 3 Ired., 513. 12. An overseer, from whom a slave is retreating against his orders, has no right to shoot him for the purpose of stopping him. Ibid. 13. An action on the case in for^will lie against a corporation. Mearex v. Commissioners of Wilmington, 9 Ired., 73. 14. An action on the case will not lie, by A against B, for bring- ing a covenous action against a third person for a penalty, incurred under a statute, and which belongs to any one who w.ll sue for it. it being B's intention by his .recovery in the action for the penalty, to prevent any other recov ry, and that big own recovery should accrue to the benefit of such third per- son. If there be any redress for such covenous recovery,, it is a public one, to be proceeded against by indictment for a misde- meanor. Burnet v. Davidson, 10 Ired., it-t. 15. The law does not necessarily imply negligence where damage is done, so as to sustain an action on the case. But where the plaintiff shows damage resulting from the act of the defendant, which act, with the exertion of proper '/are, does not ordinarily produce damage, he makes eut a prima facie case of negligence, which cannot be repelled, but by proof of care, or some extraordinary accident which makes care useless. Her- ring v. Wilmington and Raleigh Railroad Company, 10 Ired., 402. 16. What amounts to negligence, is a question of law. Ibid 17. In an action on the case against ai JKailroad Company, for the negligence of their agent in cunning over and killing, a slave, where it appeared that the slave was asleep on the tract, that the cars were going with their usual speed and at the usual hour, and the engineer, when within a short distance of the- slave, attempted to stop the engine by letting oft" the steam and reversing the wheels; it was held not to be a case of negligence to subject the company to damages. Ibid. 18. An action on the case will lie in favor of a husband, against one who entices away his wife. Barbee v. Armstead, 10. Ired.. 530. 32 ACTION ON THE CASE— V. 19. Where an action on the case for damages is brought, or- dinary care, reasonable time and probable cause, the facts being' established or proved, are questions of law to be decided by the court. Biles v. Holmes, 11 Ired., 16. 20. An action on the case will lie for an injury done by an animal when his owner knows, or has good reason to believe, that he is likely to do mischief; and it makes no difference whether the ground of suspicion arises from one act or from re- peated acts. The act done, however, must lie such as to furnish S, reasonable inference, that the animal is likely to commit an act of the kind complained of; and this is a matter of fact to be decided by the jury, and not by the court. CockerJiam v. Nixon, 11 Ired., 26a 21. In an action on the case for the loss of a slave, whose death was alleged to have been caused by ;i want of due care, the degree of care, to be taken of him, does not differ from that required as to other things. Heathcock v. Penninqton, 11 Ired. 640. • . 22. Ordinary care is that degree of it, which, under the same • ircumstances, a person of ordinary prudence would take of the same tiling, were it Ins own; and it will differ much, according to the nature of the thing, the purpose for which it was hired, and the particular circumstances of risk under which the loss occurred. Ibid. 23. The question of due care ought not to be left to the jury; it being the province and duty of the court to advise them on the point, supposing the facts to be proved. Tbid 24. If an owner hire out his slave for a particular purpose, it is to be supposed that he is tit for it, and, therefore, he may In- set to that service, and kept at it in the, usual way; and if there 1 in h service, it is to be presumed that the owner must have foreseen them, and provided for them in the hire. Ibid. 2"). Although then' be a special contract to do, or not to do, a particular thing, a party is not always bound to resort to it, to ■ c damages for a breach, but may declare in tort, and say that the defendant has neglected to perform his duty. RobinsoM v. Thredqill, 13 Ired.. 39, 26. What amounts to negligence is a question of law; and the plaintiff is entitled to special instructions upon certian facts presented by the testimony, or upon the whole case, it he to subject himself to the disadvantage of having all the conflicting testimony taken against him. Where such special tions are asked \\n; they ought to be given by the court, and it would bo error to submit the case to the jury with gen- eral instructions only. Avera v. Sexton, 13 Ired., 247. 27. Where a creditor had placed a note in the hands of an officer for collection, and another, by persuasion, induced the officer not to collect, and the debtor not to pay, the debt; if tea* ACTION ON THE CASE.— V. 33 held that tho creditor had no ground of action on the case against the other person. Piatt v. Potts, 13 Ired. 455. 28. When.' the law from a given statement of facts raises an obligation to do a particular thing, and there is a breach of that obligation and a consequent damage, an action on the case, founded on the tort, is the proper action. Bond v. Hilton, Busk, S08. 29. A slave was hired for a yar to A. upon an agreement that he should not he carried out of the county. A ordered him to a Elace out of the county, and when on his way, he was directed y the owner not to go out of the county unless compelled by force; whereupon tin 1 slave remained where he was for a fort- night and then obeyed the order of A ; it was held, that the conduct of the owner was an unlawful interference with the rights of A. for which an action on the case might be maintain- ed. Sample v. Bell, Busb, 338. 30. An action on the ease will lie on behalf of a bailor against one who commits a trespass to the thing bailed; and the plain- till' will be entitled to at least nominal damages, though no actual injury is done to the property. White v. Griffin, 4 Jones, 139. 31. Where a person was working in his new ground, within twenty-live or thirty yards of woods, and put fire to his log heaps, when the weather was calm, but afterwards the wind rose and drove the fire with irresistible violence into the woods, it was held, Hint he was not guilty of negligence, so as to render him liable for the damage done by the fire. Averitt v. MurreTL, 4 Jones, 323. 32. The killing of a cow or other animal on a railroad, by the train's rhnning over it, is, not of itself proof of negligence in ih engineer. Scott v. Wilmington and Weldon Railroad Com- pony, -t Jones, 432. (Such killing is now made prima facie evi- dence of neglect by the railroad company, Act of 1856, eh. 7.) 33. A right verdict, found by a jury on the question of negli- gj nce.will cureawrong charge by the court, given on that pointi GJiqffin v. Laivrance, 5, Jones, 17'.'. .">-i. Where, in an action against a carpenter for the negligentuse of fire, whereby the plaintiff's house was burnt, the defence was, that tin: plantiff knew of and assented to the use of the lire, in the manner now complained of; it was held, to be some evidence of such assent that ihe plaintiff's agents had used fire at the same place and in the same manner, with his knowledge and without objection from him, and that he had said, after his house was burnt, that it was an accident. Jordan v. Lassiter, 6 Jones, 130 35. Where the keeper of a livery stai>le permitted a stage driver to go into his stable, at a late hour in the night, to take out the stage horses kept there, in consequence of which a horse of the plaintiff, also kept there, made his escape, either by going U ACTION ON THE CASE — Y. out with the stage horses, or through a door which the driver had left partly open, it was held, that the owner of the stable was liable for the loss of the plaintiff's horse. Swarm v. Brown, 6 Jones, 150. 36. Where it appeared that the cars on a railroad were running at a greater than usual speed, upon a straight part of the road, in the day time, and that one of several cattle, which were feed- ing near by, was killed by the train, it was held,. that it was neg- ligence not to slacken the speed, and to omit the blowing of The steam whistle. Ay cock v. Wilmington and WeMon Railroad Corn- pony, (> Jones, 231. 37. In an action on the case for an injury to a hired slave al- leged to have been caused by negligence, it is no proof of such negligence, that the hirer gave the slave a pass to go to a certain place by a railroad, as an indulgence, though he had been hired as a turpentine hand, and the hirer knew that he was addicted to drunkenness, and though he was injured while travelling on the railroad. George v. Smith, 6 Janes, 273. 3& Where slaves were hired out at high prices as railroad hands, for the purpose of grading the track, it was held to be proper to enquire, whether by reason that the work was to lie. done along an extended line, at no particular point of which there was to be al long detention, any better provision for lodg- ing was usually made by contractors of ordinary prudence than temporary buildings, and whether the one, in which the defendant's slaves were placed, was as good as those ordinarily provided for that purpose. Slocunn v. f/W/ /«//<<)>, o' Jones, '■':'>'< 39. Where slaves, hired to work on a railroad track within a certain limit, were carried beyond that limit, to a place where they were ordinarily well lodged and provided for, but wilfully deserted the defendant's service in a snow storm, by which they were frost bitten and injured; it was held, that the defendant was liable for nominal damages for breach of his contract, in carrying the slaves beyond the prescribea limit, but not for the injiu ies arising from their own wilful exposure. Ibid. 40. Where a cattl ■ b 'List, on the railroad trade, would not be driven off by a person who tried to do so, and could not be scared off by the steam whistle, a.nl the engineer tried to stop the train before it reached and killed the beast; it washeld, that there was no negligence, to subject the company to an action on the case. Montgomery v. Wilmington and Weldon Railroad Com- pany, <"> Jones, 4(14. 41. In an action on the case for unskilful and negligent treat- ment of the plaintiff by the defendant, as a physician, it was I, ■I*/, that the question of unskilfulness and negligence was one of law for tin' oomt. and that it was erroneous to leave it to the jury. Woodard v. Hancock, 7 Jones, 384. 42. Where a ,deaf mute' slave, who was walking on a railroad ACTION OX THE CASE.— V-VL— ADJUTANT GEN. 35 track from the direction of an approaching train, was run over and killed by the train, and it appeared that the engineer did not know that the slave was deaf, and that he gave warning hy the steam whistle in time fur a person endowed with the sense (if hearing to escape; it iras held, that the. company was nnt liable tor the loss. Poole v. North Carolina Railroad Gom- p< mi/, 8 Jones, 340. 4:1. Where a hired slave was taken ill with typhoid fever, and the hirer, not knowing the nature of the disease, which could not be readily detected except by a physician, sent him at his request, forty miles on the railroad cars, in pleasant weather, to the depot nearest his owner's residence, where he was sent in a buggy in the afternoon of the same day, three miles to the house of the owner's mother, where, though well taken care of by her, assisted by two physicians, he died soon afterwards; it was Iwl/I, that though tin' disease might have been made worse by the sending the slave home, yet, under the circumstances, the hirer could not be charged with a want of proper care and pru- dent management, so as to subject him to damages fur the loss of the slave. Haden v. North Carolina Railroad Company, 8 Junes, 302. 44. Where it had been made to appear by tin.' plaintiff's testi- mony, that his horse had been injured on a*railroad, by the run- ning in a train of ears against him, and it was left doubtful from the defendant's testimony, whether the brakes had been ippliedto the wheels of the train, after the animal was discov- ered to be on the track, it was hihl, that the prima fade ease of negligence, made by the act of 1856, ch. 7. was not repelled. — i'la, ';. v. Western N. G. Railroad Company, 1 Winst, 109. See ( Assumpsit — When it will or will not lie, 37V) (Bailment 8^-11-12-13 14-18.) (Draining low lands, 6.) (Executors and Administrators — Of their liability to creditors, &c, 1—26.) (High- way 39.) (.Mills — Proceedings by petition under the act of 1809 — 3L) (Seduction.) (Trespass— To persons and personal property, when it will lie — 15-1-6-17-24-25-30-32-33.) (Tres- pass — Of Trespass quart clausum fregit, 41-43 44 4 .5 j) (Tro- ver— When it will lie— IS L8 36;) (Waste— 10 11-12-15-16;) (Tenant in common, 5- 13.) VI. WHEN THE ACTION WI9CL OR WILL NOT ABATE. ( Abatement by the death of parties, 3 5-7.) ADJUTANT GENERAL. (Militia, 2;) (Officers and Offices, 16.) 36 ADMINISTRATORS.— AD^IIEALTY.— ADULTERY. ADMINISTRATORS. See (Executors and Administrators.) ADMIRALTY. 1. All persons are bound by a decree in admiralty, on the point then in controversy. Jones v. Walker, 2 Hay., 291, (475.) 2. An appeal from an inferior court of admiralty takes the cause from that court, which can no longer act in it; but it still retains power to take care of the goods seized, that are the sub- ject, of the suit; and to that end may order the sale of such as are likely to perish. Ihid. 3. Those persons, who become interested by a. purchase, under orders and proceedings of a court of admiralty, are not bound by a decree as to the right of property, between the Ebellants and claimants. Ihid. A. The question of "prize or no prize" is 'exclusively of ad- miralty jurisdiction, even though the eaptmv., 91. 4. A powi r of attorney, or other authority, is in general revo- from its nature; and the power of revoking an authority may bi d at any time before its actual execution, Broolc- • . 6 [red., 231. 5. A power of attorney; though under seal aa] be t'evoked'i by par. ' ■'., v. Bn ■■■■■ e, 8 I red.. 74 38 AGENT AND PRINCIPAL— II-IIL-IY. II. ACTS WHICH CREATE THE RELATION OF AGENT AND PRINCIPAL. 1. Where a debtor to a bank, by an agreement therewith, sold his property and took bonds payable to the bank, of which the bank was to receive in payment such as might be approved, held that a bond taken by the debtor and offered to, but rejected by, the bank, was in effect delivered as a bond to the debtor as the agent of the bank, constituted as such by the agreement;, and that the refusal of the bank to give the debtor credit for the bond did not make it void. Bank of Neivbern v. Pugh, 1 Hawks, 198. 2. If a plaintiff, at the time he issues a writ, endorses upon it that it is to the use of another person, he thereby constitutes such person his agent in the collection of the claim, and author- ises him to receive any thing he thinks proper, in discharge of it. Clark v. Shields, 3 Hawks, 461. III. AGENTS ACTING FOR THE TUBLIC. 1. A person, who contracts as agent for the State, is not per- sonally responsible. Stanly v. Hawkins ,"iMar., 55, ^52.) 2. An action may be sustained in the name of the United States, on a covenant made in its behalf by a public officer, and its special agent quoad hoc, although- such agent do not sign and seal the contract in its name. United States, v. Blount, 2 Car. L R, 84, (181.) 3. An agent for the public is not answerable personally for any contract made by him in his official character, unless he specially binds himself to be personally responsible. Tucker v. Justices, of IredeU, 13 Ired., 434. 4. Where the county court made an order directing a puBHe agent to pay a contractor fur work done, and the agent promised to pay the amount of the order, but it was subsecpiently revoked by the court, it was held that tin.' agent was thereby discharged from any liability ori his promise. Dey v. Lee, 4 Jones, 238. See (Contract — Construction of contracts and when an action will lie 39-42.) IV. FACTORS. 1. If a purchaser pay a factor for goods purchased, before he is forbidden by the owner, the payment is valid. Goldenv. Levy, 1 Car. L. h'., 527, (141.) 2. If a purchaser pay the owner, against the orders of the factor, the payment tk good ; therefore, when the captain of a stranded vessel employed the defendants to sell the cargo saved, as auctioneers, which they did, ami paid the amount to AGENT AND PRINCIPAL.— IV.-V . 39 the owners of the goods, such payment was held good. — Ibid. 3. A sale by a factor creates a contract between the owner of the goods sold and the purchaser. Ibid. 4. It seems that the construction to be put upon written in- structions, from a principal to his factor, is to be determined by the court, and not by the jury. Symington v. McIAn, 1 Dev. & Bat., 291. 5. Where a factor sold the goods of his principal, together with some of his own, and took, in payment for the whole, a promissory note made by another person, payable to himself, it was twltl, that the purchaser was discharged, and that, there- fore, the factor became himself responsible for the price of the goods. And the court seemed inclined to think that either cir- cumstance, taking the note of the third person, or blending the claims of the factor and principal in the same note, if, in the latter case, it hail been the note of the purchaser himself, would have 1 ieen sufficient to create the responsibility in the factor. — Ibid, <). T\ here, in addition to the circumstances above stated, it appeared that the factor concealed, from his principal, the fact ot his having taken the note, and representee! the purchaser as alone bound for the price of the goods, much more will he be responsible. Ibid 7. A general power to a factor to sell implies a power to do so in the usual way, at the place where the sale is to be made. Ibid 8. A direction to a factor, "to sell for the best prioe," means no more than the law enjoins, when the principal is silent; and a direction, "to sell immediately," is not violated by a delay of fifteen days, where nothing is proved as to the state of the market. V. OF THE RIGHTS OF AX AGENT AS AGAINST THIRD PERSONS. 1. Iii general a mere agent, who makes a contract in behalf of another, cannot maintain an action thereon, in his own name, either at law or in equity. but where the agent, who makes a ci mi met, has a beneficial interest in its performance, for commis- sions, &c, as in the case of a factor, broker or auctioneer, or a captain of a ship for freight, he may sustain an action in his own name, although the principal or owner might sue in his .own name. Whitehead v. Potter, 4 Ired., 257. 2. The consent of the principal or owner is not necessary to enable the agent, in those cases, to sue in his own name, it he ing implied in the nature of his agency. 1 hid. 40 AGENT AND PRINCIPAL.— VI. VI. OF THE LIABILITY OF AGENTS TO THIRD PERSONS. 1. An action will not lie against a person, who describes him- self as agent, in the contract which he executes for another. Potts v. Lazarus, 2 Car. L. R. 83, ( L80.) 2. An agent acting under a parol authority cannot bind his principal by deed ; but a bond executed by an agent thus eon stituted, in the name of his principal, is not the bond of the agent, and the fact that he exceeded his authority does not render him liable as an obligor; the only remedy against him, if he falsely and fraudulently misrepresents his author* ity, being a special action on the case. Delius v. Gawthorn, 2 Dev., 90. 3. A person who makes a parol contract in the name of another, without sufficient authority, and receives the consider- ation, may be declared against as a contracting party, because the promise attaches to the consideration. Ibid. 4. Property delivered to an agent, under a contract made by his principal with a third person, cannot, without the consent of the principal, be applied by the agent to the payment of a debt, due to himself, from that person; and the fact that the agent was indebted to the principal, and the principal to the party delivering the property, does not alter the rule. Edwards v. Powell, 2 Dev., 190. 5. Where an agent had received money to pay off certain debts of his principal, and made a payment to the creditor, for- which the principal was, by mistake, credited twice, such agent| in an action against him by tin- creditor to recover the amount of the mistake, cannot be rendered liable therefor, if it ap- pear that he afterwards had a settlement with his principal, and paid over to him tiie balance remaining in Ins hands, after being allowed for only what he had actually paid the creditor: State Bank v. Rohards, 2 Dev., & Bat. 111. G. Articles were purchased for a manufacturing company d which A was the agent, and he thereupon gave a due bill, in this form: "Due E. M. $78, val. ree'd. A, agent for M. Co.," and /'/ was Jield, that A was not personally liable 'thereon. — McCall v. Clayton, Busb. 422. 7. An agent, who draws a bill of exchange, as agent, on his principal, and for the benefil of his principal, is not liable on it to the payee. Haul: of Gape Fearv. Wright, 3 Jones, ."»7li. 8. Where an agent contracted for work to be done for his principal, without disclosing the fact that it was not for him- self, he is personally liable, though the workman may find out the agency before the work was begun, if it was after, the con tract was made. Forney v. >Sla']>/>, 4 Jones 52.7 See (Set off. 26.) AGENT AND PEESTCIFAL.— VIE 41 VII. OF THE LIABILITY AND EIGHTS OF AN AGENT, AS RESPECTS HIS PRINCIPAL. 1. A consignee was instructed to exchange the consigned produce tin- that of Surinam ; he found it impracticable to ex- change for anything but sugar and- coffee, which were contra- band by the law of that country; though such kind of traffic was usual, as no attempt to enforce the law had been made for many years; the consignee mad' the exchange for sugar, but;. owing- to an attempt then made to enforce the law, he re-landed the sugars and took them in again secretly, whereby a large portion of them became damaged and lost; held, that under these circumstances the consignee was not resjpensible for the loss. Hagan v. Paine, 1 Hay., 272, (313.) 2. An agent who sells the property of his principal, shall ac- count with him for the full amount of the price he receives. Therefore, where an agent was instructed to sell a parcel of tobacco which was inferior to his own, and he sold his own ata higher price than he could then get for that of his principal, saying he would let his principal have the benefit of it, and keep his principal's in its stead, and afterwards got a higher price for the tobacco of his principal, it was held, that he was bound tn account for the latter price, though he had acted bona fide. Meabr v. Mmfile, 2 Murph., 272, S. C., 1 Car., L. 1!., 254, (25.) 3. Where an agent collects money for his principal, no action can be brought 'Until a demand, and especially is this so when the principal lives out of the State. Potter v. Sturgis, 1 Dev., 79. 4. What degree of care and diligence is required of one, who undertakes to sell goods for another, and to sell to none but sol- vent persons, and what degree of attention and diligence in one, who undertakes to collect notes or accounts for another, quaere '. Pollard v. To I, 3 Ired., 470. 5. When a demand is made for payment, of an agent who has collected money, and he fails to pay, that failure is in law a re- fusal to pay, so Ms to entitle the principal to his action against the agent. Hays v. Smith, 4 Ired, 254. 6. A mother, who had money belonging in part to her chil- dren, advanced it to the defendant for the purpose of his pur- chasing negroes in this State, and delivering them to her in Georgia where she resided; the defendant never bought the negroes; and// was held that she could maintain an action to recover backthe money, krherown name, as the defendant acted as her agent, and h did not appear that he knew that any part of the money belonged to her children. Buchanan v. Parker, 5 Ired., 597. 7. Where an agent is appointed to sell articles of personal. 42 AGENT AND PRINCIPAL.— VII. property, the law implies that lie lias a right to warrant their soundness, in behalf of hie principal. And if he sell such articles with a warranty that binds himself personally, and damages are recovered against him upon the warranty, by the purchaser, he has a right to be reimbursed by his principal to the amount of such damages, as well as of the necessary costs in defending the 'suit. Hunter v. Jameson, 6 Ired., 252. 8. Where A, residing in North Carolina, appointed B, in Ten- nessee, to take a lease for him of a certain tract of land, which 13 did, but the lessor, not being willing to trust A, required B to give his own note fcr the rent, which he did and afterwards paid it; it was JiM that this was an undertaking by B, within the scope of his general authority ; that A was bound to reim- burse him, and that it was not necessary for B to give A any notice of the payment, to entitle him to an action against A, for the money so paid. Irions v. Cook, 11 Ired., 203. 9. An agent, who in making a contract discloses the name of his principal, is not legally responsible to the person with whom he contracts, and therefore, if he pay any damages arising from a breach, he cannot recover the amount so paid for his principal, unless paid by his special request. Meadows v. /Smith, 12 Ired, IX. 10. A principal 'cannot maintain an action against his agent for money had and received, until a demand and refusal; but the proof of a demand and refusal is not restricted to any particular form of words, and any declaration of the agent to the principal, which shows a denial of his right, puts him in the wrong, and gives to the principal a right of action. Moore v. Hijman, 12 [red.,. .38. 11. Where the plaintiff had employed the defendant to sell for him a quantity of fish, and in attempting to make a settle- ment, they differed as to six barrels of tin:' fish, for which the plaintiff claimed a credit; it Was helil, that this was not only «'v- idence of a demand, but was in law a demand, which gave the plaintiff an immediate right of action, and set the statute of limitations to running. Ibid. 12. Where the plaintiff, the defendant and another shipped! produce on the same boat and consigned it to a factor, who sent the defendant a draft on Now York for the whole amount, which he sold and received the proceeds, endorsing it in his own name, but the paper coming back dishonored, he returned the money to the endorsee, aiid after using duo diligence failed to recover it from the drawer; it waslield, that the defendant was not, as agent for the plaintiff, liable to him for his share of the money. Bland v. Scott, 8 Jones, 100. See (Payment 8.) AGENT AND PRINCIPAL.— VIII. 43 VIII. LIABILITY OF A PRINCIPAL FOR THE ACT OF HIS AGENT, OR BY NOTICE TO 1ILU. 1. If one person sell the horse of another and warrant his soundness, witl iout the eonsent of the owner, who afterwards accepts the purchase money without any knowledge that the warranty hail been made, the owner shall, nevertheless, be an- swerable on the warranty. Lane v. Dudley, 2 Murph., 119. 2. Where an attorney in fact conveys land in his own name, without reference to his power or his principal, nothing passes by the deed. Scott v. McAtyin, S. ( ; . Term R 155, (587.) '.'>. An attorney in factj acting for his principal, should perform the act in the name of his principal. Locke v. Alexander, 1 Hawks, 412. 4. Where A, as the agent of B, received money from C to pay him, but neglected to do so, %', upon paying B in full, has no right, without a specific application, to offer these facts as evi- dehce of the payment of another debt due from him, in which A, the agent, is beneficially interested. Smith v. Fagan, 2 l)ev.. 298. 5. Xo power can be inferred from the relation ef master and servant, whereby the servant can bind his master; hence a groom has no right to vary from his employer's terms, unless a special authority to do so be proved. Moore v. Tickle, 3 Dev., 244. 6. Where a bill was drawn in favor of an agunt, for a debt due to his principal, and accepted, and the acceptor requested that it might be charged against him on the principal's books, it tons held, that this was a promise to the principal, on which he might support an action in his name against the acceptor, where the agency was known at the time to the acceptor. Jordan v. Tarkington, 4 Dev., 357. 7. The principal is bound by a warranty made by his agent, in the sale of a slave or other chattel. Williamson v. Ganaday, 3 Ired, 34*9. 8. The signing, sealing and delivery of a deed by an agent, except where the authority is by an instrument under seal, will only he' valid when they are lone in the actual presence of the principal. Kime v. Brooks, '•' Ired., 2LS. !•. A principal authorized his agent to purchase some articles for him, but only so far as he had the cash of the principal to pay for them. The agent purchased on the credit of his prin- cipal without paying any money, and the articles were delivered to the principal, who received them and converted them to his own use; and if iras lidd, that the seller had a right to recover the price of the articles from the principal. Patton v. Brittain, 10 Ired., 8. 10. Where A made a contract with B, that the latter should, 44 AGENT AXD PRINCIPAL.— VIII. for a' stipulated sum, remove a house belonging to the former, from one side of the street to the other side, and 1) performed the work so negligently as to cause an injury to C, it was /We?. (Kul'iiu C. J. dissentient.e) that A was liable to < '. for the damagit the latter had sustained by the neglect of 15. WiswaU v. Jhin- son, 10 [red., 554. 11. Where an agreement purported to be between A 15, "for and on behalf of the Albemarle Swamp Land Company, of the one part, and 15 R, of the other part.'' and stipulated that the party of the second part should get "on the land of the party of the first part," a certain quantity of lumber, and deliver it, &e., and in conclusion it is said "in witness whereof A 15, for and on behalf of the party of the first: part, being the Albemarle Swamp Land Company" and 1! R, as the party of the second part, have hereunto set their hands and seals;" and the agreement was signed by "A B, for and in behalf of the Albemarle Swamp Laud Company;" it was held, tha>t the con- tract was between the said company and 1! R, and that the company only could sustain an action in its own name, for a breach of the contract. WMtehmd v. Reddick, 12 [red., 95. 12. The employer is answerable for any carelessness, ignorance 1 or want of skill in his overseer, while engaged in the course of his employment, whereby a permanent injury is done to a slave hired from another person. Per 7/ »////;, C. .1. It is the ease sim- ply of bailor and bailee, and, on the principles applicable to that relation, the plaintiff is entitled to recovers Jones v. Glass, 13 Ired., 305. 13. When a person undertake s to load a boat with goods, and by his negligence the goods are suffered to fall, so as to injure the boat, he isliable for the damages to the owner of the boat. But where such person did not. aet«,s agent of the defendant, whose duty it was to load the boar, but Ike leading was under- taken and conducted by another person, the owner of the goods; the defendant is not liable. Pate v. Greenville ami Roaiwke Railroad Company, 13 Ired., 325. 14. Where ai a ri rrl was, in the absence of his principal, em- ployed by the plaintiff to carry off goods, m the principal's wagon, and sell them for him, contrary to the principal's orders, but he afterwards i-ecogi)ised the act of the agent in carrying off the goods, and received pay lor the service of the \ a and team, and also for that of the agent; it was held, that the principal was He- liable to the plaintiff, for the money received by the agent for lie- sal« el' die goods, when it appeared that, as to such sale, the plaintiff had trusted the agent and looked to him for the pric to bi obtained for them. Hodges v. Holderby, 4 Jones, 500. 15. Where an instrument, purporting to be the cove iani of a eorporatiou, was signed and sealed by a person pm-porting to A LI EX.— I. 45 be its agent, with his own hand and seal; it was held, that though it could not be treated as the covenant of the oorporation, yet it might be evidence of its contract, upon proof of the agency, and assumpsit might be sustained against it. Osbornev. High Shoals Mining and Manufacturing Company, 5 Jones, 177. See (Husband and wife — How far the husband is bound for the acts of his wife before and alter marriage, 5.:) (Slaves — Sales and gifts of slave. 19-29.) ALIEN, 1. Who is an Alien. II. The effect of war with the country of an alii'ii. III. When an alien can, or cannot, sue in this State. IV. As to an alien holding lands. . I. WHO IS AN ALIEN. 1. British subjects, residing out of this country, became aliens by the Declaration of Independence Stringer v. Phillips, 2 Hay., 158, (342.) 2. When a subject of the king of Great Britain was duly naturalized in one of the States, before the adoption of the Federal Constitution, and continued to reside in such State until that event, he became, by virtue of it, a citizen of the United States. Teare v. White, 2 Car., I.. L'., 112, | - 3. According to the Laws of this State, all human beings in it fall within one of two classes, to wit, aliens and citi- citizens. Foreigners, unless made members of the State, conr binue aliens. Slaves manumitted here become freemen and, if born within North Carolina, are citizens of North Carolina ; and all free persons, born within the State, arc citizens of the State. State v. Manuel, 4 Dev. & Bat., 20. 4. Naturalization is the removal of the disability of alienage. Emancipation is the removal of the incapacity of slavery. The latter depends wholly upon the internal regulation of the State. The former belongs to the government of the United States. andit would be a dangerous mistake to confound them. Ibid. 5. The possession of political power is not essential to consti- tute a citizen ; for, if it were, then women, minors, and those who have net paid public taxes, are not citizens. Ibid. ii. Free persons of color^ in this State, are not to be considered as citizens in the largest sense of the term, or, if they are, they occupy such a position in society, as justifies bhe legislature in 46 ALIEN.— IL-III.-IV. adopting a course of policy in its acts, peculiar to them, so that they do not violate those great principle's of justice, which lie at the foundation of all laws. State v. Newsom, 5 Ired., 250. II. THE EFFECT OF WAR WITH THE COTOTEY OF AX ALIEN. 1. Deists contracted with an alien are not extinguished hy a war with his government. Hamilton v. Eaton, 2 War., i, (83.) III. . WHEN AN ALIEN CAN, OR CANNOT, SUE IN TI11S STATE. 1. Debts due to British subjects, paid into die public treasury compulsorily, by an act of Assembly, may, sotwithstanding, lie recovered of the debtor by the creditor, under the provisions of the treaty of peace with Great Brittain in 1783. Hamilton v. Eaton, 2 Mar., 1, (83.) 2. Plaintiff sued on a bond, and the plea, which was founded on the 101st section of the act of 1772, eh. 2, stated in substance, that the plaintiff had removed from the Stat.:-, to avoid assisting in the war of the revolution,, that he had attached himself to the enemy, &c, hvld that if the plaintff was a citizen of this country, the 101st section was repealed by subsequent acts of Assembly; but if he were not a citizen, but a British subject, then, by the 4th article of the treaty of peace, he is considered an alien friend, and as such entitled to sue in our courts. Cru- de*, v. Neal, 1 May, 338, (388.) 3. An alien cannot maintain ejectment, or any action for the recovery of the freehold, because he is not allowed to acquire real estate; but if he have purchased land and is in possession of it, the purchase is good and will he for the benefit of the State upon an office found; before that, however, no individual can violate with impunity the possession of tin- alien purchaser, and if he do, trespass quart cla/usum /regit will lie against him. Burgess v. Hogg, 1 Hay., 485, (558.) S. 1' Blcurd v. Hornilled, ■1 Hay. .".(I, (l';i7.) See (Ejectment — Of the title necessary to support the action, 10.) IV. AS TO AN ALIEN HOLDING LAUDS. 1. Aliens cannot hold land; and if they purchase, the State can take the land from them. Bayard v. Singleton, Mar., 48, (42.) 2. An alien cannot take land by devise, the devise being void. Unim rsity v. , 2 Hay., 104,' (264.) S. 1' Gilmour v. Kay, Ibid, 108, (265.) (Overruled, sec Miller v. Harwell, 3 Murph., 194) ALIO.— IV.— ALIMONY. 47 3. An alien can hold lands against the sovereign, until his estate is divested by an inquisition, or by some sovereign act ascertaining his alienage. University v. Miller, 3 Dev., 188. 4. The sovereign cannot seize lam Is and prove the alienage in pais, upon the trial of an ejectment. Ibid. 5. The native born child of an alien succeeds as heir, where the estate of tin' ancestor has not been divested by an office found in his life time. An office found after his death will not affect the estate of the heir. Ibid. 6. The law will not cast an estate upon one, who cannot hold it; and for this reason, an inquest of office is not necessary, to prevent an alien from succeeding to an estate. Ibid. 7. If the heir be unable to take by reason of any disqualifica- tion, which is not personal, as by his alienage, the next in degn sui ceeda to prevent an escheat; but where the disability is personal, as by an attainder, the next in degree cannot suc- ceed, but the estate will escheat. Ibid. 8. An alien cannot take by descent, curtesy, dower, or other title derived merely from the law. And an assignment of dower to an alien, whether voluntarily by the heir or by the law itself, is void, and will not entitle her to recover in ejectment. Paul v. Ward, 4 Dev., 247. 9. That part of the 40th section of the State Constitution, which authorizes a "foreigner who comes to settle in this State,. having first taken the oath of allegiance to the State," to "put- chase, or by other just means acquire, hold and transfer lands or other real estate," is still in force; though the latter part of the section, declaring when he shall become a citizen, is repealed by the Constitution of the United States. Bouchev. Williamson, 3- Ired., 141. 10. Independent of the privilege conferred by the first part of t 1 section above referred to, an alien may not only take a fee by purchase, but the estate remains in him. with all the inci dents belongingto it when taken, until and unless the soveriegn, who has the right thereto because of forfeiture, vests the estati in himself by an office found. Hence, an alien may, until that is dom/. bring an action of ejectment. Ibid. 11. An alien cannot take ami hold lands, as tenant by th< curtesy, and of course such land is net liable to bi sold under a. fi.fii. against him. Gopeland v. Sauls, 1 Jones, 70. ALIMONY. See (Divorce and Alimony.) 48 ALLUVION.— AMENDMENT.— I. ALLUVION. 1. Whether the doctrine of alluvion applies to any case T where a water boundary is not called for, though the course and distance called for are coterminous with such water boundary, quaere: Commissioners of Beaufort v. Duncan. 1 Jones, 234. See (Entry 8.) AMENDMENT. I. Of the writ. II. Of the declaration and other plead- ings. •III. Of the verdict, judgment and exe- cution. IV. Of the record. V. In the Supreme Court. VI. When costs to be paid on amend- ments. I. OF THE WRIT. 1. A writ, improperly issued by the clerk in case, may be imendi (1 to debt, after it is returned executed. Simpson v. Craioford, Mar., 55, (53.) 2. Where a writ was brought against an administrator, naming iiini as i xecutor, and there was a plea in abatement for that cause, the court refused an amendment under the act of 1790, (Rev. Code, ch. 3.) Coiopet v. Edwards, 1 Hay. 19, (26.) 3. A writ cannot he altered from covenant to debt, except by consent of parties ; but it is usual for the attorneys to permit the amendment when the mistake was made by the clerk. — Anonymous, 1 Hay., 401, (461.) 4. A writ cannot be amended so as to convert a civil into a penal action. Walton v. Kirby, -J Hay., 17-4, (366.) ,"). Several persons were sued in covenant, two of whom, on over had, appeared not to be parlies to the deed; the writ may be amended by striking out their names, on payment of the costs up to the' time of the amendment. McLure v. Burton,! Car. L. R, 412, (84.) (i. After a judgment for the defendant, upon a plea of vnl tiel record to a sci. fa., suggesting assets and judgment quando, the court set aside the judgment, and permitted the plaintiff to amend his sci,. fa. upon the payment of costs. Tear v. White, 1 Murph., 412. 7. A sci. fa. against heirs may be amended after the plea of AMENDMENT.— I. 49 nul tiel record pleaded, on payment of costs up to the time of the amendment, Williams v. Lee, N. C. Term E., 149, (578.) 8. A writ and declaration maybe amended, upon the payment of all costs, by striking out the names of nominal plaintiffs, and inserting the name of the party in interest as administrator of the person, in whose name, had he been living, the suit ought to have been brought. Justicesof Camden v. Sawyer, 2 Hawks, 61. 9. If leave to amend the writ, so as to change the form of ac- tion be obtained, and the parties proceed on the idea that the amendment has been made, the supreme court will so regard it, though it has not been made on the record. Uff'ord v. Lucas, 2 Hawks. 214. 10. In case of the omission of the name of one of the plaintiffs, the writ may be amended in the court below, but not in the su- preme court. Wilcox v. Hawkins, 3 Hawks, 84. 11. Defects which require an actual amendment, and which are not cured by the statute of jeofails, can be amended only upon the payment of all costs, unless it be by the default of the officer and not of the party. "Where the amount of dam- ages laid in the writ was increased, the amendment was permit- ted ou the terms of paying all costs. Grist v. Hodges, 3 Dev., L98. 12. The omission of the christian name of a defendant in a warrant is a fatal defect, and such an one as tin- supreme court has no power to supply by an amendment, Johnson v. McGinn, 4 Dev., 277. 13. The superior court may, in its discretion, permit the plain- tiff to amend Iris writ after a verdict in his favor, and the supreme court has no right to supervise the exercise of such discretion. Alstonv. Hamlin, 2. Dev. and Bat., 11.3. 14. A writ in the name of A B. President, ami C D and E F, Directors of a company, may be amended in the superior court, so as to insert the corporate name of the company, upon paying all costs. Britbain v. Newland, 2 Dev. and Bat., 363. 15. The court has a discretionary power to permit an original writ to lie amended by adding to it the seal of the court, where this has been omitted before the writ issued. Clark v. HeUen, 1 Ired., 421. 16. The courts below have the power, at their discretion, and on such terms as they may prescribe, to add new plaintiffs to chose mentioned in the writ and original di claration. Green v. Deberry, 2 Ired, 344. 17. A superior court lias the power to allow an ami raiment in a form'!- proceeding, so as to insert the names of infant heirs in the order appointing them a guardian md in the writofsci. /a. issuing against them; and tit exercis< i fthepower is a discretionary one which cannot be revised in the supreme 50 AMENDMENT.— I.— II. court. Campbell v. Barnhill, 1 Jones, 557. . S. P. White v. Stan- ton, 3 Jones, 41. 18. Where a corporation has been sued and brought into court by a wrong name, the court has power to order an amendment by striking out that and inserting the right name. Lane v. Sea-, board and Roanoke Railroad Company, 5 Jones, 25. 19. A court has no authority under the power to amend pro- cess, to order the issuing of a new writ to bring in a new de- fendant, during the pendency of a suit. Camlin v. Barnes, 5 Jones. 296. 20. Although the superior court has a- discretionary power to allow an amendment of the writ after a verdict, so as to increase the damage claimed, yet it will exercise the power with caution in a case where the measure of the damage is certain; and there is no certain criterion by which to show that there was a mis- take or misapprehension in the issuing of, the writ. Ashe v. DeRosset, 8 Jones, 240. II. OP THE DECLARATION AND OTHER PLEADINGS. 1. A demurrer may be withdrawn when a material fact is necessary to be introduced by plea, and the pleadings may be amended. Hostler v. Roan, 2 Hay., 138, (309.) 2. After a new trial is granted, the court may permit the pleadings to be amended on both sides. Murphy v. Guion, 2 Hay., Itf2, (347.) 3. It is not of course, after a cause is continued, to amend the pleadings; the necessity for so doing must be shown to the court by affidavit or otherwise. Blount v. Shepard, 2 Hay., 23(1 (409.) 4. A special demurrer being filed to a declaration and sustain- ed, the court will give leave to amend on the payment of costs. Davis v. Evans, 1 Car. L. It, 499, (111,.) S-. C. 2 Murph., 202. 5. Where a plaintiff declared upon a warranty, the court, being of opinion that he could not recover upon that declaral tin]), permitted him, upon terms, to amend by adding a. count for money had and -reserved Lanier -v. Auld, 1 Murph. 138. 6. Where a counsel, who had been instructed to defend an action on a bond, upon the ground>that it was given to comj pound a felony, and he on!\ pleaded "illegal consideration,! which was adjxrdged bad as 1 icing too general, an amendment* of the plea was permitted without costs. Boyt \~. Cooper, 2 Murph., 286, S. C. 1 Car. L. R., 277, (28.) 7. Where, onapetition for an injury done by the erection of a mill, there was a verdict and judgment against all the defen- dants, one of whom was dead al the time, and a writ of error coram nobis was brought for that error in fact, it was held to be^ proper in the court to allow an amendment nunc pro tune by AMENDMENT.— II.-III. 51 suggesting- the death of the deceased defendant, upon the pay- ment of costs, and thereupon to dismiss the writ of ei»ror. — Wihvii v. Myers, 4 Hawks, 7& 8. All amendments, made either by consent or by leave of the court, ought to appear on the record. Shearin v. NeamHe, 1 Dev. & Bat, 3. 9. The superior court, in which a suit is pending, has the ex- clusive discretionary power of permitting amendments in the process and pleadings, and no appeal lies to the supreme court from the exercise of such power. Quiett v. Boon, 5 Ired., 9. 10. Where there was an order to amend, and the subsequent proceedings in the case are based upon the assumption that the amendment has been made, the course is to consider the order as standing for the amendment itself. Holland v. Crow, 12 Ired., 275. 11. The court below has no right to allow an amendment to a declaration in ejectment by adding a count on the demise of a person who died since the commencement of the action, although he was alive at the date of the demise in the proposed count. — Skipper v. Lrnuon, Busk, 189. 12. The refusal of the coart to permit a declaration in eject- ment to be amended on the motion of the defendant's counsel, By striking out a count on the demise of one of the lessors, though made at the instance of such lessor, is no ground for ex- emption on the part of the defendant Hassell v. WalJcer, 5 •Jones, 270. 13. Proceedings in petitions to lay out roads are within the meaning of the Rev. Code, ch. 3, sec. 1, which authorizes courts to amend pleadings, &g., in "any action," at anytime before judgment Pridj.n v. Anders, 7 Jones, 257. See (Ejectment — O' the declaration 4.) III. OF THE VERDICT, JUDGMENT AND EXECUTION. t. Where, in entering up a verdict, a mistake was made in computing interest, and judgment was entered for less than the plaintiff was entitled to, which mistake was not discovered until the next term of the court, leave to amend was refused, because then was nothing to amend by, and to alter it would be to make a new verdict for the jury. BaJcer v. Moore, 2 Car, L. E., 6 17, I ' 2. A verdict that " the statute of limitations does not bar," is not responsive to the issue, and, therefore, erroneous; but it is such a minute of the verdict, as to enable the superior court tn amend it; and, although the supreme court cannot make the correction, it will stay the judgment, until it is corrected in the court below. Dowellv. Vannoy, 3 Dev., 43. 3. Defects in judgments may be amended, even after a writ 52 AMENDMENT.— III. of error; and executions may also be amended after they have been acted on, so as to render them a justification to the officer where otherwise they would not be. Bender v. Askew, 3 Dev.. 149. 4. Where the writ waste answer the plaintiff of aplea of-debt, for $213 32, and the declaration was in debt, qui turn, for $160, it was held, that under the statute 5 Geo. 1, cL 13, which was declared to be in force by the art of 1777. the variance was cured by a verdict for the plaintiff. West v. Batledge, I Dev., 31. 5. A general verdict upon a declaration, containing a defec- tive count, will not entitle the plaintiff to judgment. But when it appears that the evidence applied only to the good count, the verdict will be amended. Thus, where in debt, on the statute of usury, one count was for double the sum lent, and another for double the amount lent and interest received, and the verdict was for the. first sum, it was applied to the first count. Ibid. • i. Where the clerk of a superior court has omitted to affix the seal of his court to writs of ft. fa. and vend, expo., issued cut of his county, the court may, at a subsequent term, order the clerk to affix its seal to the said executions mine pro tunc, in order to protect a purchaser of land, sold under them, where no third person claiming under one of the parties to the execution is to be affected thereby. PurceU v. McFarland, 1 Ired.. 34. 7. When a clerk issued an execution, tested on the 5th Mon- day after the 4th Monday of September, 1833, and in the 57th year of our independence, and endorsed thereon, that the exe- cution actually issued on the 5th of February, 1833, ami the cor- oner also endorsed that it was levied on the 21st of February, 1833, the court must see that the dating of the writ, as to the christian era, was a mistake of the clerk, and will correct it ac- cordingly. Cherry v. Woodard, 1 [red., 438. 8. An amendment of an execution will not be allowed, if it, will prejudice the rights of third persons. Bank of < '<~tpc Fear v. Williamson, 2 lred., 147. 9. The superior court has no right, on the trial before it, to •permit a constable's return, of a justices execution levied on land, made to the county court, to be amended. Smith v. Low, 2 Ired., -b">7. 10. Whereupon a writ of recordari judgment was rendered in the superior court, against the plaintiff in the recordari, and the clerk entered the jriclgment againsl the sureties for the costs' only, and the court, at a. subsequent term, directed that the judgment should be entered nuncprotunc against the sun-ties for the debt as well as the costs; it was held, that the court laid the power to do so, if in their discretion they thought it right, and the supreme court could not revise such discretionary power. Brady v. Beason, 6 Ired., 425. AMENDMENT.— III. 53 11. A judgment nunc pro tunc is a judgment of the term of the court, at which the court making the amendment says it ought to have been rendered. Bradhurst v. Pearson, 10 Ired., 55: 12. An action for a joint battery against four persons was tried ; and, by agreement of counsel, the verdict was to be ren- dered during the adjournment of the court; and during such adjournment the jury returned their verdict, finding all the de- fendants guilty, and assessing separate damages against each, and tlii- clerk entered the verdict accordingly. When the court met after the adjournment, the jury, being informed that they had dmie wrong, in assessing separate damages, were permitted to amend their verdict by finding damages against all the de- fendants jointly ; it ints hehh that the court acted right in per- mitting the amendment. Curtis v. Smart, 10 Ired., 97. 13. Where an amendment is moved for, which the judge has power to allow, and he refuses to hear the motion or the evi- dence to support it, on the ground that he has no power to allow the amendment — such refusal is error, which the supreme court will correct ; but it is otherwise, where he declines to exer- cise the power on other grounds. Therefore, where on applica- tion to amend the entry of a verdict found at a former term, on an issue of t toe pro tunc, and to enable it to do so, it. might order an enquiry as to the value of 54 AMENDMENT.— III. -IV. the slave and damages for the detention. Freshwater v. Balcer* 7 Jones, 404. 17. Where a fi. fa. on a justice's, judgment was levied on land, and returned to the county court, where an order was made for the sale of the land, which was sold under a rind. expo, issued thereon ; it was held,, that the county court had no power at a subsequent term, to amend by setting aside the fi. fa. on the justice's judgment. Bennett v. Taylor, 8 Jones, 281. IV. OF THE KECORD. 1. The superior court may amend the record of its proceed ings at any time during the same term, and may thus obviate any objections made to the record of that term. State v. Cul- koon, 1 Dev. & Bat., 374. 2. Although one court casmot take any posterior action in a cause, after it has been removed to another for trial, yet it may afterwards amend by supplying an omission in a record, which occurred prior to the removal ; and it may then scud a now transcript of the amended record to the court to which the cause was removed. State v. Meid, 1 Dev. A: Bat., 377. 3. Supplying defects in a transcript, either by procuring a new one, or by making insertions in the one already sent, is not an amendment of the court, to which it is sent. Ibid. 4. Every court 1 >as a. right to judge of its own records and minutes ; and if it appear satisfactorily to it that an order was actually made at a former term, and omitted to be entered by the clerk, it may at anytime direct such order to be en- tered on the records, as of the term when it was made. State v. McAlpin, 4 Ired., 140. 5. tn a suit pending in one court, oral evidence is inadmissi- ble to supply a defect in the record of another court, by showing that an order was made or proceeding had, in that court, which the clerk, by mistake, or through negligence, or from other cause, omitted to enter on the record. Ibid. 6. A court lias a right to amend the records of any preceding term, by inserting what has been omitted, either by tee act of the clerk or of the court ; and a record, so amended, stands as if ii had never been defective, or as if the entry had been made at the proper term. Galloway v. McKeithen, 5 Ired., 12, S. P ; State v. King, '> Ired.. 203. 7. Where a court, in the exercise of its discretion, directs that an order previously made by them should be stricken out, it is iUr same as if such order had never existed. Williams^. Floyd, 5 Ired.. 649. 8. Where thecounty court, upon affidavits, ordered an amend- ment of its records, and the party aggrieved appealed to the superior court, it was the duty of that court to decide upon AMENDMENT.— IV. 55 ■the question of amendment, and if the superior court dismissed such appeal without deciding upon the merits, its judgment was erroneous and must be reversed. Slade v. Burton., 6 Ired., 207. 9. The superior court may, upon such an appeal, not only re- view the decision of the county court, on the affidavits there- filed, but may hear further evidence, as to the propriety of the order of the county court. Ibid. 10. A court of record has a discretionary power to amend its records, at any time, nunc fro tuns, and it is the ditty of the cleric, not simply to enter such order of amendment, but actual- ly to make the amendment, as directed -by the court. Jones v. Lewis, 8 Ired., 70. 11. Every court has the control of its own records, and may alter or amend them, or refuse to do so, at its discretion. Bag- ley v. Wood, 12 Ired., 90. 12. Where the county court exercises its discretion, in relation to the amendment of its records, its decision is subject to an ap- peal to the superior court, and is thereby vacated, and the trial in the superior court is de novo ; and upon such trial the court may hear any additional evidence which may be offered by the parties. Ibid. 13. Whether the decisioadn the superior court is one purely in the discretion of the judge, or one which is subject to review in the supreme court, the judgment is final and conclusive, be- cause the supreme court is a court for the correction of errors in matters of law, and not matters of fact. Ibid. 14. Courts have power to amend their process and records, notwithstanding such amendment may affect existing rights. Green v. Cole, 13 Ired,. 425. 15. A court has no power to allow an amendment, by which the rights of persons, not parties, will be affected ; for example, to amend a fi. fa. so as to make it an alias, and give it rela- tion back ; and other like cases. Nor has a court power, 1 >y al- lowing an amendment, to defeat or evade the, provisions of a statute ; for example, to allow a constable's return of a levy on land to ho amended, by inserting a particular description of the } iremises, as required by statute, the original return being de- fective; and so in like cases. PhiUipse v. Higdon, Busb. 380. 16. livery court has ample power to permit amendments in the process and pleadings pending before it. So it has, after a wit is determined, ample power to amend its own record, that is, the journal or memorial of its own proceedings, kept by the court or the cleric, by inserting what has been omitted, or stri- king out what has been erroneously entered. Ibid. 17. Where an order has been made for amending a record, such, amendment may be made..at any time afterwards. Mar- sh'ii! v. Fish r, 1 Fones, 111. 50 AMENDMENT.— IV. 18. The county court has no power to authorize an amendment in the return by a constable of a levy of a justice's execution up- on land, after a sale of the premises. Gibbs v. Brooks, 1 Jones, 448. 19. The superior court has a discretionary power to order an amendment of its records, by drawing|up and entering in proper form its orders and decrees from the loose minutes of the clerk, and allowing- a commissioner of the court to file his report ; and when the court acts in such discretion, its decisions cannot be reviewed in the supreme court. Pendletonv. Pendleton, 2 Jones, 135. 20. Upon a question of the amendment of its record, so as to make the minutes of a former term set forth truly its own trans- actions, a court is not bound by the ordinary rules of evidence in ascertaining the facts, but may resort to any proof that is sat- isfactory to it. Hence, an ex parte affidavit, taken before a jus- tice, may in some eases be proper. Maiio v. Whitson, 2 Jones, 231. 21. Lapse of time will not take away from a court the power to amend its records ; : for such lapse of time is in no way im- portant, further than that it increases the difficulty of procuring adequate testimony. Ibid. 22. The county court has no right to amend its record by striking out an entry of the surrender of a principal by his bail, made in open court, on a previous day of the term, when such entry stated truly what had been done. Underwood v. McLmi- rin, 4 Jones, 17. 23. Every court has the power to amend its own records, so as to make them conformable to the truth. Parsons v. McBride, 4 Jones, 99. 24. Where the parties to a suit agreed to submit their case to arbitration, and that the award should be a rule of court, but only the first part of the agreement was entered of record ; it ivas held that the court in winch the suit was pending had the power to amend the record nunc pro tunc, so as to make it show that the award was to be a rule of court. Klrkland v. Mar.gum, 5 Jones, 313.* '25. All courts have the inherent power to revise and amend their records, and make them conform to the truth. Ashe v. Streator, 8 Jones 256. 26. The power of the county courts to amend their records is a discretionary power, subject, however, to the revisal of the su- perior courts upon an appeal, but the supreme court has no Sower to examine into the correctness of the exercise of such iscretion in the courts below. Where," however, the superior court decided erroneously that the county court had no power to make an amendment, it was held that the supreme court could, . on an. appeal,. revise and correct such error. Ibid. AMENDMENT.— V. V. IN THE S! I'll!. ME COURT. 1. An amendment will not be allowed at the term, at which a cause is decided in the supreme court, on the motion of one party without notice to the adverse party. Cobb v. Wood, 1 Hawks, 95. 2. The want of a declaration, when it appears on the record sent to the supreme court, is an error which the court cannot overlook, nor can it be amended or remedied but by consent. — WHMxtmson v. Rainey, 3 Hawks, 9. 3. Under the act of 1824, the supreme court can make only such amendments as the court below might have made; and it seems that no substantial amendments will be allowed in the supreme court, because if such were made, the opposite party ought to have leave to amend his pleadings, which might make new issues, which there is no tribunal to try. Matlock v. Gray, 4 Hawks, 1. S. P. Glisson v. Herring, 2 Dev.. 156. . (For the power of the supreme court to allow amendments, see Kev. Code, ch. 4, and ch. 33, sec. 17.) 4. Where the verdict exceeds the amount of damages laid in the writ, the plaintiff may, in the supreme court, amend by en- larging the sum in the declaration, upon the payment of all costs. Grist v. Hodges; 3 Dev., 198. 5. The supreme court is bound to admit amendments which would be of course in the court below,, ami which do not involve the merits; but it is not authorized to direct them to be made in the court below, nor to make any but such as are necessary to support the judgment of the superior court on a verdict on the merits. Ibid. 6. No amendments can be permitted in the supreme court, which would affect the judgment below, or upon which ordina- rily a new plea is admitted. Ibid. 7. Verdicts which are defective in form, from the misprision of the clerk, will be corrected in the supreme court, if the sub- stance is intelligible. Ibid. 8. A conclusion in a warrant for a penalty, against the form of the statute, when it should be against the form of the stat- utes, is a substantial defect, which is not cured by the verdict. But the supreme court, under the 1st and 10th sections of the 3rd chapter of the Revised Statutes, may amend the defect, as it does not change the issue between the parties, and is according to the right and justice of the matter found by the jury. State v. Muse, 4 Dev. and Bat., 319. (See Rev. Code, ch. 3, sec. 1 and 10.) 9. Where the damages recovered in the court below, in an action on a warranty, exceeded the damages laid in the writ and declaration, and the variance was not discovered in that court, but the defendant here insisted upon it on a motion in arrest ot 58 AMENDMENT. — V._VI. judgment, the court permitted the plaintiff to amend the record by striking out the excess of damages in the verdict, uponhis pay- in-- the costs ofthe appeal. WiMamson v. Ganaday, -Hired., 349. 10. The plaintiff having recovered one thousand dollars dam- ages, when in the writ and declaration they were laid at only two hundred, it was held, that an amendment might be allowed in the supreme court of the writ and declaration, so as to state the damages at one thousand dollars, the plaintiff paying all the • costs of the suit, Clayton, v. Liverman, 7 Ired., 92. 11. Where more damages are recovered than are demanded. the plaintiff will be permitted in the supreme court to remit the excess, and have judgment for the proper sum, upon paying the costs of that court. Harper v. Davis, 9 Ired., 44. 12. An amendment in a warrant before a justice, for a penalty, will be permitted in the supreme court upon the payment of all costs by the plaintiff. Commissioners of Washington v. Frank, 1 Jones. 436. 13. The supremo court may allow tin- plaintiff to amend by entering a remittitur for the interest erroneously given upon the damages assessed in an action of trespass quare clauswm j'rvijit, upon I 'no payment of the-costs of that court. Connelly v. Mc- Neil. 2 Jones, 51. 14. Where the effect of an amendment in the supreme court would be to reverse a judgment ofthe court below, rightly given, in favor of the defendant, and to enter a judgment in the former court, in favor of a different party plaintiff, it will be refused. Jus/ins of Tyrrell v. Simmons, 3 Jones, 187. 15. Whore the demise in a declaration in ejectment had ex- pired before the trial in the courl below, and the plaintiff's lessor had obtained judgment wifbxrtrt the objection being no- ticed, the supreme court allowed an amendment by extending the term as a matter of course, without costs. Baxter v. Baxter, 3 Jones. 303. See (Practice— Appearance, and proceedings against one of several defendants, (i. ) vi. 'when costs to be paid ox amendments. 1. If a suggestion of death be made and not entered by the clerk, and a supersedeas and writ of error be moved for, and an amendment be now permitted mmc fro tunc to avoid the error, it shall be upon the payment of costs. Paniiel v. McCrawley, 2 Hay, 177, (371.) 2. The court may, under certain circumstances, set aside a ver- dict, and permit an amendment by allowing the plaintiff to add a new count, upon the payment of all eosts. Wilkmgs v. Mur- phey, 2 Hay., 2*2, (460.) See (Amendment — of tho writ, 5-6-7-8-11-14-16.) (Amend- ment — Of the declaration and other pleadings, 4-5-6-7.); {Amendment — In the supreme court, 4-9-10-11-12-13-15.) APPEAL— I 59 APPEAL. I. From a justice's judgment, II. When allowed from the county to the superior court. III. When tlie transcript must, be filed. If. Effect of an appeal fiom the county to the superior court. V. Of the appeal bond and die sureties thereto. VI. From the superior to the supreme court — When allowed aad its ef- fect. I. FROM A jrSTR'KS JTOGMKXT. 1. An appeal lies from the judgment of a justice to the county court, arid then from the judgment of that court to the suferror court. Commissioners <>/' Tarborough Bridge v. Whitaker, t Murph.. 184 2. The justice, who gives a judgment from which an appeal is prayed, cannot sign the name of a person as a surety to the ap- peal bond, in the absence of such person, though at his request, because the agency u< do so is inconsistent withhis character as judge; and nojudgmenl can be rendered against the surety on such bond. Weaver v. Parish, 1 Hawks, 319. 3. On an appeal from a justice's judgment, the surety to the appeal is not bound, though he sign as such, unless the justice granting the appeal sign his name, as a witness to the signa- ture of the surety— /Vr,./ v. Hardisan, - Hawks, 532. 4. When a justice f< rgets to return an appeal at the next term after the judgment, it is pi' rper, upon notice to the appellee, tw return and place it on the ducket at a subsequent term. Lamcm v. Gilch-ist, 1 Dev. 17G. 5. An appeal from a justice granted* on security given two days after the judgment, will not be dismissed, although allowed withoui affidavits, and although no entry appears, that at the trial, time was given to the plaintiff to find sureties. Ibid. (!. The sureties for an appeal from the judgment of a justice ire sureties to the action, and are bound to satisfy any judgmeril which rnay be rendered in it against the appellant. Dolby v. Jones, 2 Dev. in;'). 7. Where the judgment of a justice was affirmed in thecounty court, and the appellant appealed to the superior court and gave other sureties, it was held that the sureties to the first appeal were bound for the judgment rendered against the appellant in the latter court. Ibid. 8. Where an appeal has been taken from the judgment ofa justice, the parties may by consent, while the papers remain in the hands of the justice, set aside the appeal^ and have a new ferial. Wardens of the Poor v. Cope, ~i [reel, 4 !. 9. Where there is a joint judgment before a justice against CO APPEAL.— I. -11. two defendants and one only appeals, the appeal will be dis' missed on motion, no matter what steps have been taken in the cause after the filing of the appeal in court. Smith v. Cunning? ham, 8 Ired., 460. (This rule altered — See Rev. Code, ch. 62, sec 23.) 10. On an appeal from the judgment of a justice, if the defen- dant- do not plead so that an issue may lie made up, the court may render judgment either with or without the verdict of a jury. Bamsour v: Mirshaw; 8 ired., 480. 11. Where there is a judgment against two or more, an appeal cannot he granted unless all the defendants join in it. Kelly V. M&se, 11 Ired., 182. (One alone may now appeal, see Rev. Code, eh. 62, sec. 23.«) 12* Where a judgment bearing a certain date was signed by one justice, and at the foot of the judgment there was a grant of an appeal, bearing no date, but signed by a different justice ; it was held, that this afforded no ground for presuming that the judgment and appeal were given at different times. McMillan v. D vis, 7 Jones, 218. 13. Where an appeal from a justice's judgment had pended for several terms in the county court, before a motion to dismiss for irregularity, in taking the appeal, was made, and had after- wards pended several terms in the superior court before a like motion was there made; it was held, that the long aquiescense waived the irregularity, and that the motion to dismiss was properly refused. Ibid. 14. Where a plaintiff, in a warrant before a justice, failed to appeal on a judgment rendered against him, at the time of the rendition of such judgment, or to make application for time to appeal, but appealed several days afterwards; it was held that a motion to dismiss the appeal, made at the second term after it was returned to the appellate court, was in apt time. Council v. Munroe, 7 Jones, 396. See (Evidence — Parol evidence, when admissible or not 50.) (Forcible entry and detainer 14.) (Justices of the Peace — Of their jurisdiction, judgment and execution, (59,) (Practice — Of default and enjuiry, 10-11-12.) (Practice— Payment of money into court, 5-6-7-8.) (Practice — Of consolidating suits 2.) II. WHEN ALLOWED FROM COUNTY TO SUPERIOR COURT. 1. The attorney of the appellant was required by the act of 1785, (ch. 233 of the R. C. of 1820,) to certify reasons for his appeal from the county to the superior court; but this did not extend to an appeal in an action of debt, which was given by another act. Barrow v. Baker, Mar., 19,(2.) (This provision Itas been repealed. See Rev. Code, ch. 4.) 2, An appeal will lie for the State when the defendant is ac- APPEAL.— II. 61 qtirfcted, as^well as for the defendant when he is convicted. — State v. Haddock, 2 Hay., 162, (348.) (Overruled by Statt v. Jones, 1 Muph., 257.) 3. If the county court arrests the judgment on an indictment, an appeal is as proper as a writ of error. Ibid. 4. If a re-probate of a will be moved for and refused by the county court, an appeal will he from that order. Ward v. Vick- ers, 2 Hay., 164, (351.) 5. An appeal would not lie from the county to the superior •court in the ease of a petition for a private way, before it was given by the act of 1813. tWood v. Hood, 1 Car.. L. R. 515. (126.) (It seems to be given by the g< neral law on the subjecl of appeals. See Rev. Code. ch. 4,sec. 1. Laddv. Hairston, I D< v.. 368.) li. An appeal will not lie from the order of the county court, upon a petition for laying out a public road. Hawkimv. County of Randolph, 1 Murph., 118. (Altered, see Rev. Code, eh. 4, sec. 2.) 7. Nor from an order of the county court on a petition for leave to keep a public ferry. Atkinsonv. Foreman, 2 Murph., 55. (Now allowed Rev. Code, ch. 4, see. 2.) 8. It seems that an appeal may be taken from an interlocutory order of the county courl granting leave to amend; ami on con- firming the judgment of the county court, a 'procedendo will issue from the superior court. Huntv. OroweU, 2 Murph., 424. !). Where, in an action of debt en a bond against an obligor and the executors of a deceased party, in which the former pleaded the general issue and 1 he statute oi limitations, and the executors pleaded the general issue and fully a< ministered, and the latter plea was found in their favor, while both pleas were found against the other defendant, # m i th i he might appeal alone. Sharpe v. Jones, 3 Murph., 10. There is no method by which an indictment can be re- moved from the county tn the superior court for trial, but by appeal after a final decision. Stta i Hawks, 78. 11. An appeal will lie from an ordi mnty court for the re-probate of a script, purporting to be a will, on a petition filed for that purpose. Odom~v. Tia-iiij . :s, 24. 12. Where a deed produced in th co irt, under a sub- poena duces tecum, was ordered by that cour o n delivered to the party producing it, held that no appeal lay from the o ler. ( 'a ler v. Graves, 1 Dev., 74. 13. An appeal lies, und of 1777, to the superior c irt. from the judgment of the ci , a ] tition r a eartway. Ladder. Hairsto 1 Dev., 368. (See Rev. Code. ch. 4, sec. 1, and ch. 101, sec. :>7.) 14. The act of 1777, authori i questions concern- ing grants of administration, appli i. by the act of 62 APPEAL.— II. 1715. the applicant has a vested right to the administration. — i Where the county court has a discretion in making the grant, as in administrations pendente lite, its judgments are necessarily final, and cannot be reviewed on an appeal. Pratt v. KittreU, 4 Dev. 1G8. 15. In an action against two, who join in their pleaSj and against whom, after a joint trial, a judgment is rendered, an appeal cannot be allowed at the instance of one defendant only, and if allowed by the county court, the superior court acquires no jurisdiction to try the cause; but is bound on the motion of the appellee, to dismiss the appeal, and award a procedendo. — Sicks v. Gilliam, A Dev., 217. (One defendant may now appeal alone. See Rev. Code; ch. -1, sec. 27.) 16: An appeal may be taken from the order of a county court, granting a re-probate of a will, or if not taken from such order, but is taken alter the finding on the issue, made in pursu- ance thereof, on such an appeal the whole ens.- is curried up, and* the superior court may revise the order for the re-probate. Harvey v.Smith, 1 Dev. &Bat., 1*6.' 17.. In an action of assumpsit, in the county court, against two, if they plead separately non assumpsit but the jury find a verdict, and assess damages jointly against both, one cannot appeal without the other ; and if an appeal at the instance of one alone be carried up and placed on the trial docket of the su- perior court, though the plaintiff obtain an order at tin; first term to take a deposition, and the cause be then continued to the next term, it will at that term, be dismissed upon the motion of the plaintiff. Dunns v. Jones, 4 Dev.. & Bat., 154. (But sea Kiev. Code, ch. 4, sec 27.) 18. Wliere an- action is brought in the county court against two defendants, who plea the amendment, which the county court had, the order of the county court being annulled by the appeal. Britt v. Patterson 10 Ired, 390. 29. An appeal will not lie from the decision of the county 64 APPEAL.— II. court, upon a petition for draining the petitioner's lands through those of other persons. Stanly v Watson, 11 Ired., 124. 30. An appeal will not lie to the superior court from the decision of the couuty court, on a petition by an alleged lunatic to have the verdict of an inquest in his case set aside, and the guardian appointed in pursuance thereof removed. Pay v. Bay 11 Led., 357. 31. An appeal lies to the superior court from an order of the county court, allowing an amendment or setting aside a judg- ment for irregularity. WiUiams v Beasley, 13, Ired. 112. 32. The act of 1850, authorizing an appeal by one defendant when there are more than cue, does not apply to appeals taken before that time. Smithv. Calloway, 13 Ired., 477. (See Eev. Code, ch. 4. sec. 27.) 33. The parties to an issue joined upon an interplea in attach* ment under the act, Rev. Stat., ch. ti. sec. 7. have, each, the same right of appeal under section 14 to the superior court, as in actions commenced in the ordinary way, McLean v. Mc- Daniel, Bush, 203. (See Rev. Code, ch. 7, sec. 10.) 34. The purchaser of property at a sale, under an execution issued on a dormant judgment, has a right to intervene and ap- peal from an order oi the county court setting aside such execu- tion. Hurphrey v. Wood, 2 Jones, 63. (None but a party to the record can now appeal. See Rev. Code, oh. 4, sec. 1, which varies from the language of the Rev. Stat., ch. 4, sec. 1.) 35. The next of kin of an intestate have a right to intervene and appeal from an ex parte order of the county court, obtained by the administrator for the sale of the slaves belonging to the estate. Watkins v. Pemberton, 2 Jones, 174. (As to the pres- ent rule, see Rev. Code', ch, 4. sec. 1.) 36. When a defendant in a ca. sa. bond has been called and failed, and a judgment rendered against him and his sureties on the bond, in the county court, he may come forward at anytime during the same term, and take an appeal to the superior court, where his rase' will be considered, de novo. PlurilcUt v Penniri- gnr, 2 Jones, 367. 37. A plaintiff may submit to a judgment of non-suit in the county court and appeal, for the suffering a non-suit is not a /■<■- traxit or abandonment of his suit. Spruill v. Trader, 5 Jones. :'>'.i. 38. An order of the county court permitting a creditor not notified to make up an issue 1 of fraud with an alleged insolvent debtor, a refusal to treat certain specifications of fraud suggest- ed by the plaintiff as nullities, on account of vagueness and of notbeingfiled in proper time, and also an order to continue the cause, can neither of them, nor all together, be appealed from to the superior court, because a di ■ ion of them, either way, would not put an end to the cause. Cook &. Johnson v. McDou- gald, 5 Jones, 305. APPEAL— It.-III. 65 39. A right of appeal is given by the general law in relation to appeals, (l!ev. Code, ch. I. sec. 1,) onacontest arising under i petition for a cartway. fjunlen v. Harman, 7 Jones, 354. 40. No-appeal will lie from the county to the superior court, which must necessarily lie ineffectual for the purpose for which it is prayed. Clark v. Latham, 8 .'ones, 1. 41. The county court has a discretionary p. ewer to set aside a judgment taken on a ca. sa. bond, at any time during the same term, and no appeal will lie to the superior court from an order made in the exercise of such discretion. WilUams v. Scimmer horn, 8 Jones, 104. 42. An administrator has a right to appeal from an order of the county court affirming the report of commissioners mak- ing a year's allowance to a widow. Saunders v. EusseU, 1 Winst., 97. See ( Ch rks and Oh rks ami Mas'ters-J-Of. their election or ap- pointment, ;>.) (Corporations — Of particular corporations, ;i.) (Execution — Levy, sale and application of the money raised, 43.) (Widow — Proceedings to obtain dower, 1.) III. WfiEN THE TRANSCRIPT MUST BE PILED 1. Under the act of 1777, (ch. 115, see. 77, of the I!. I . ol 1820) directing appeals from the county to the superior court to be brought up "fifteen days before the sitting of the term," the :i : I has no discretion^ and upon a failure of the appellant for any cause, the judgment must I"- affirmed. Gregory V. Bray, Mar., 39, (29.) S.I'.. Robertson v. Stone, 1 Hay., 401, (462.) Hbodv. Or,\ X. C Term lep., 151,(584.) (The law is now altered. See Rev. Code, ch. I sec. 3 and 4, which requires the transcript to be filed on or before the first day of the next term of the superior court.) 2. The fifteen days must be clear of the day of filingthe paper- and th i first day of the term. Anonymous, 1 Hay, 402, (463.) {Over, \ ' bj Anonymous, Ibid, 162, (532.) (See note In lasr section.) 3. Where there Were but twenty nine days between the last day of the county and the first day of the superior court, held that the appellant had until the term following to file the transcript; Orme v. Smith, 1 Car. L. R., 364, (32.) (See note to 1st sec- tion, i I. If an appeal from the county to the superior court is not filed within the tune limited bylaw, it must be dismissed, although such omission proceeds from accident and without laches in the appellant; hut in such eases a certiorari will be granted. Hood v On; X. C. Term R,, 151, (584.) <3G APPEAL.— IV. IV. EFFECT OF AN APPEAL FROM THE COUNTY TO THE SUPERIOR COURT.. 1. Where the plaintiff had a verdict, and the defendant, after an ineffectual motion in arrest of judgment, appealed, it was held, that the cause stood in the superior court upon the issue joined in the county court.- Snoden v. Humphreys, 1 Hay., 21, ( 29 2. If the appellant neglect to carry up his appeal under the act of 1777, (See P t ev. Code, ch. 4 sec. 6,) the appellee may hie the transcript and move for the affirmance of the judgment with double costs, either at the first or any other term after the appeal. Brickdl v. Bass, 1 Hay., 137, (157.) (Haywood, J., doubted of this in an Anonymous ease, 1 Hay., 171, (179,) and a rule was granted to the appellee for the appellant to show cause at the next term.) 3. An appeal from the county to the superior court nullifies the judgment of the county court, so that it cannot be after- wards acted upon. Davison v. Mull, 1 Hay. 361, (417.) 4. Upon an appeal from an order of the county court over- ruling exceptions to an award, made on a reference by a rule of court to arbitrators, the superior court will not grant a new trial on the issues, but only examine the alleged errors in the court below.— Burton v. Sheppard, 1 Hay. 399, (460.) 5. Where, in arn appeal a new trial was 1 had in the superior court, and a verdict for as great a sum was there obtained, as had been rendered in the county court, Haywood, J., thought this an affirmance of the judgment of the county court, and that judgment might be entered instanten against the appellant and his sureties, under the act of 1785. (Iiev. Code, ch. 4, sec. 10, but Stone, J., thought otherwise. Yar&orougli v. Giles, 1 Hay., 453, (521.) 6. Where a petition for an account in the county court had been referred to an auditor, and upon the coming in of the re- port exceptions were filed, and being overruled, the plaintifj appealed ; it was held, that the superior court would begin with the exceptions, and afterwards, perhaps, hear the cause upon the petition, answer and proof's. Envinv. Arthur,. Conf. liep. 490, (542.) 7. The judgment of the county court, not being lessened in the superior court, bears ten -per cent., up to the time of render- ing judgment in the superior court. Mumford v. Hodges, 1 Murph., 131. (See Rev. Code, ch. 4, sec. 8.) 8. If, on an appeal from the connty to the superior court, the plaintiff is non-suited, and then the defendant consents that the non-suit may be set aside, and afterward a judgment is rendered for the plaintiff, the defendant's sureties for his appeal are not discharged, on the ground that they did not consent to set aside the non-suit ; for the sureties have no control over the proceed- APPEAL.— IV. 07 >ngs between the plaintiff and defendant, and are bound to per- form the final judgment of the court in the suit. McGimse v. Vail, 1 Murph., 408. 9. Under the act of 1801, ten per cent, is to be calculated upon the principal of the debt only from the rendition of the judgment in the county court, to its rendition in the superior court; and six percent, thereafter, until it be paid. Scott v. Drew, '1 Murph., 25. (See Rev. Code, ch. 4. sec. 8.) 10. 'Where there is an issue joined in the county court and a verdict of a' jury given, and before the verdict is entered, amotion to dismiss the suit is mad!' and allowed by the court, and the plaintiff appeals to the superior court, there must be a trial de novo of the issues in the superior court ; for that court cannot render a judgment upon the verdict in the county court. Clark v. Cameron, 4 [red., 161. 11. Where, in a suit pending in the county court an award by Keferees, under a rule ol court, is made in favor of the plaintiff, and the court sets aside the award and orders a trial, upon which there is a verdict for the defendant, the plaintiff cannot, by them appealing, bring the questions on the award before the superior court. lie should, as he had a right to do, have appealed from the decision of the county court upon the award. tit-ate v. Laws, 7 Ired., 375. 12. Where two defendants are sued upon what purports to be a joint bond, and a verdict and judgment is rendered against both, from which an appeal is taken to the superior court, in that court a verdict may be found against one only, and a judg- ment be rendered accordingly. Broun v. Conner, 10 Ired, 75. 13. Where there is a judgment in the county court against two, and one craves an appeal, and both join in one appeal bond, and there is judgment in the superior court against one and in favor of the ether, upon the verdict of the jury, yet the court may render judgment against the latter, upon the appeal bond. Ibid. 14. Where an interlocutory order does not have the effect to put the ca.se out of the county court, an appeal from it will not take the whole case to the superior court, but only the question raisi 1 by the interlocutory order. Russell v. Saunders, 3 Jones, 432, S. 1'., Purvisv. Robinson, 4 Jones, '.'i!. 15. Ah appeal from the' judgment of the county court, upon exceptions to the report of the jury ordered to lay off a road between certain termini, only embraces such exceptions, and does not take up the merits of the petition. Anders v. Anders, 1 Jones, 243. 10. Where, in an attachment, application was made to the county court for leave to interplead, which was allowed, but afterwa ed for the insufficiency of the bond tendered, a second application, accompanied with the tender of a sufficient (58 APPEAL.— IV. bond was made and refused, and the applicant appealed to the superior court, it was held, tiiat the party was entitled to interplead on his second application, and that tin: superior court, after the appeal, ought to have permitted the interplea, and retained the cause, and not have issued a procedendo to the county court. Evans v. Governor's Creek Transportation and Minimi Company, 5 Jones, 331. 17. The commissioners appointed under the act, (Rev. Code, eh. 40.) which relates to the draining of low lands, constitute a separate and distinct tribunal, and an appeal from a judgment confirming their report in the county court, does not take up the whole cause tube tried de novo, in the superior court, but only the questions of law arising on the report. Skinner v Nixon, 7 Jones, 342. 1— 1-5-6.) 2. After an ajipeal by d fendant, if his hail surrender him, it will. no! discharge the sureties to his appeal bond. Coolie v. Utile, 1 Hay.. 168, (193.) 3. Judgment may he entered up instanter against the sureties upon an appeal bond. Kinchen v. Brickivell, 2 Hay., 49, (209.) 4 An appeal bond with new sureties may hie substituted in the place of a former one, when one of the sureties is wanting as a witness for the appellant Lavender v. PritcJiard, 2 Hay., ilMT, (513.) S. P., MeCulloch v. Tyson, 2 Hawks, 336. 5. One surety to an appeal bond from the county to the supe- rior court is sufficient, if the surety be good; at all events it seems that the superior court may. in its discretion, take a new hond with two sureties. Flemming v. Williams, 2 Hay., 400, (602.) See contra, Jones v. St/Ices, 1 Murph., 281, and Gibson v. Li/ik-Ii. Ibid, 495; but that in such ease the superior court may take a new Ixrad with two sureties, see McDowell v. JJr. The sureties on an appeal bond cannot be charged, if the condition of the bond leave out the most effective part required hy law. to wit, that the sureties should !»• discharged on the performance by the appell; f the judgment above. Wallt r v. Pitman, Conf Rep. K>7. (237.) S. P., Forsyth v. McCormick, 2 Car. haw Repos. 472, (359.) Orr v. McBride, •"> Murph., 235. 7. On an appeal by the State no appeal bond is necessary. Sljilr v. McGlellcnal, Conf. hep. 523. (569.) 8. An appeal bond cannot be legally executed after the rise of the county court, nor will the appeal be sustained unless the bond is executed in the county court, the superior court having go authority to .take a bond to sustain an appeal. Newnan v. •Neivnmi, 1 Murph, 178. 9. When a pi ity has a right of appeal given him, and neither the form of the appeal bond nor the pi rson to whom it snail be made is prescribed, the comity court must lix the form and direct to whom the bond shall be made payable. Atkinson v. Fon mo . - Murph., ■>'>. Id. When appeal was taken by the defendant from the county to the superior court, but by mistake the a] peal bond was exe- cuted by the plaintiff instead of the defendant, the appeal was 70 APPEAL.— Y dismissed by the superior court, but a writ of certiorari was ordered on defendant's motion. Speed v. Ha nix, 2 Car. L. 11, 434, (317.) 11. If the appellee in the superior court suffer the cause to go to the jury, it is an implied waiver of any objection arising from the defectiveness of the appeal bond, and the appellant may proceed in the suit. But the court may, in its discretion, require further security. Ferguson v. McAuthur, X. C. Term R., 107, (544.) S. P., Smith v. Neil, 2 Hawks, 14. 12. The bond required on appeals from the eomitytothe supe- rior courtis intended as a security tor the appellee, and the sureties are not liable for the costs of the appellant. Wilson v. Murchison, 2 Dev., 491. 13. Where a defendant was convicted of an offence in the county court and appealed to the superior court, and then removed his cause to an adjoining county for trial, it is too late for the State to move for the dismissal of the appeal for want of an appeal bond, especially where the defendant has been in cus- todv ever since the conviction. State v. MitcheU, 2 Dev., ami Bat., 237. 14. Where an appeal is taken from the judgment of a justice, which is reversed in the county court, but on 'appeal to the supe- rior court is there affirmed, the surety to the appeal from the jus- tice is still bound. Carroll v. McGee, '■> Ired., 13. 15. A surety to an appeal from a justice, can only be bound according to the act of Assembly, when he subscribes his name himself; a subscription by another in his presence and at his request, is not sufficient; but when he holds the pen. and another guides it to sign his name, it is a signature by himself. Ibid. (See Rev. Code,' eh. 62, sec. 24.) 16. A surety who signs an appeal from the judgment of a jus- tice will be bound, although the appeal is taken after the time allowed by the act for taking an appeal, provided lie c p- posite party consents that an appeal may bo then taken. Ibid, 17. Where an appeal was filed in the superior court, and the appellee removed the cause to an adjoining county tor trial, and suffered it to remain there for three years before he moved to dismiss the appeal, for want of an appeal bond, it was held, that the motion came too late, and that the appellee must be pre- sumed to have waived his right to abend. Wallaces. Corbit, 4 Ired., 4.".. 18. Where, upon an appeal to the superior court, the cause- has been continued therein for two years, and witnesses have been summoned on both sides, it is too late lor the ap] ellee to move to dismiss the appeal for the want of an appeal bond; as he will be considered to have waived his right to a bond. — - Arrington v. Smith, 4 {red.. 59. lit. Upon an appeal to the supreme court in a criminal ca APPEAL.— V.-VI. 71 the appeal bond covers the costs of both courts. State v. 'Pat- terson, 5 [red., 89. 20. Where, upon an appeal to the supreme court in an indict- ment, judgment was directed to be entered by the court below, both for the punishment and the costs, and the court below at Sep- tember term, 1842, entered judgment only for the punishment, it had a right at September term, 1844, upon a rule previously obtained for that purpose, to enter a judgment nunc pro tunc for the costs also, against the defendant and his surely on his appeal bond to the supreme court. Ibid. 21. Where a defendant on an appeal from the judgment of the county court gave an appeal bond with but one surety, such surety cannot, on the judgment being affirmed in the superior court, object to a judgment against himself, on the ground that the statute required two sureties, for the sureties are required for the benefit of the plaintiff, and he may dispense with them in whole or in part, at his option. Cochrane. Wood, 7 Ired., 215. 22. A separate judgment may lie rendered against the sure- ties on an appeal bond, or the judgment maybe against them jointly with their principal. Woolard v. Woolard, * Ired., 322. 23. An administrator, who establishes his plea of fully admin istered, is entitled of course, under our statute, to his costs; and the plaintiff, though he take a judgment quando, cannot have a judgment against the surety on the administrator's appeal bond, tin' case having been tried upon appeal. Terry v. Vest, 11 Ired., 65. 24. Where, in an appeal bond given by the defendant, the plaintiff's name is omitted, although the court at the first term would dismiss the appeal unless the defendant gave a sufficient bond, yet it will not do so as a matter of course, when several terms have elapsed. Robinson v. Bryan, 12 Ired , 183. 2"). If the bend given upon taking an appeal be signed by sureties, it is not essentiaJ that it should be signed by the appel- lant also. Cohonii v. Morton, 4 Jones, 256. 26. Appeal bonds, sent up from the county to the superior courts, are made by flu- Rev. Code, ch. 4. sec. 1 and 10, parts of the record, and cannot be questioned by plea and proof at the instance of the sureties. Whitehead v. Smith, 8 Jones, 351. VI. FROM THE SUPERIOR TO THE SITREME COURT WHEN ALLOWED, A2JD ITS EEFECTS. 1. The supreme court will not entertain an appeal, but will Hrect a certificate that the appeal has not been filed, unless the appellant hies the bond together with the transcript of the record in time ; but on failure to do so. a certiorari will be ordered, provided a proper cause be shown by affidavit. Man- ting v. Saun/er,, I Hawks. 37. 72 JrPFEAIi— VI. 2. If the appellee file the transcript in the supreme com - ! ii cannot afterwards obtain a certificate of the failure of the appel- lant to bring it up ; but the court must look into the reedtd and affirm or reverse the- judgment. Frazier v. Felton. 1 pawks; 2.31. 3. A bond with a penalty sufficiently large will be taken as an appeal bond, though the penalty, from a mistake of the clerkj be not so large as that ordered by the judge. Cherry v. SUiilc. 2 Hawks, 400. 4. When a cause is once ordered to the supreme court, that court acquires jurisdiction, and the superior court cannot take any further step in it. The supreme court, therefore, will not regard any subsequent proceedings in the court bel6w. Mur- ray v. Smith, 1 Hawks, 41. 5. The refusal of an inferior court to allow pleadings to be amended, or to continue a cause, or any other exercise of a mere power of discretion, held not to be an error for which thejudgp ment will he reversed on appeal or writ of error. Armstrong v Wright, 1 Hawks. '.Ki S. Pr Turner v. Child, 1 Dev., 133. ' li. There cannot be an appeal to the supreme court from the judgment of the superior court granting a new trial for matter of law ;• nor from a judgment of respondeat ouster given on a demurrer to a plea in abatement : nor from a decree disallowing; a plea to a petition for distribution and ordering the defendant to answer, ; because these are not final sentences, judgments or decrees. State v. liolnitsoii, 1 Hawks, IKS. (Appeals may now lie allowed from interlocutory judgments in some cases— see RCV Code,4h. 4, see. 23 ) 7. An Appeal will not lie from an interlocutory judgment. — - Medford v. Harreh •'» Hawks. 41. S, P. La/ham v. Boicen-, Ibid. 418. (Such appeals may now be allowed in certain cases — Uev. Code, eh. 4, sec. 23.) ■ - 8. An appeal will not lie from an act don< by the superior court in the exercise of a legal discretion. Statev. Lamon,3 Hawks, 17.">. 9. The question on the plea of nultiel record is a question of fact to be tried by the court, and not a question of law. Hence, upon an appeal from the judgment of the superior court deciding thai there was no record because there was no impression of a seal, the supreme court has no power to re-examine the question of fad whether there were a seal or not. State v. Isham, 3 Hawks, 185 S. P. Sjate v. Grayton, Ibid, 187, note. 10. If no error be assigned in the charge of the judge, and none appeal's upon the record, the judgment of the superior court will, upon an appeal, be affirmed in the supreme court. — Stephenson v. Junes. 1 Dev., 15. 1.1. An appeal will not lie from the Superior to 1 lie supremo APPEAL.— VI. 7:. court upon an order, nrade on a rule obtained directing a sheriff to amend his return. Davidson v. Cowan, 1 Dev., .'ifi4. 12. An appeal will not lie from an order of refusal to grant a new trail on the ground of surprise, lint being a discretionary power. Lindsay v. Lee, 1 Dev., 464 13. Appeals to the supreme court can only be I'm' errors in law ; and the decision of the judge or jury, upon a trial of fact, cannot be reviewed. Hence the decision of the judge in the court below bn tlie plea of mil tiel record is conclusive. St tte v. Raiford, 2 Dev., 214. 14. The exercise of a discretionary power in the superioi court cannot be examined upon an app al. Cannon v. Be man, % De\\. 363. 1"). The superior courts have a discrel bn to expunge an order made .li! ing the same term, and an error in its exercise cannot be examined upon an appeal. Sneed v. Lee, '■'< Dev., 364. 16. The supreme court lias no jurisdiction of an appeal from an order of the i ourt below, allowing commissions to an admin- istrator, tha-1 being the exercise of a discretionary power. E.r parti . II n gldon, 3 Dev.. 441. 17. The allowance of iper cent, additional interest, under the act of 1807, on appeal from the county 1" the superior court, is a matter of discretion, and cannot be revised in the supreme court upon an appeal. BaUinger v. Barnes, 3 Dev., 460. (See Rev. Cede. eh. 4. see. 8.) 18. In the supreme court, the appellant is not entitled to costs as oi right, upon the reversal of judgment below, but may even be adjudged to pay them under circumstances: Hicks v. {riUiiiin. 4 I )ev., 21 7. 1!'. When an appeal is net allowed by law from the- eountyto the superior court, the appeal should he dismissed with costs, iand a procedendo ordered to the county court, ami where the superior courl refused to dismiss the appeal, and from its judgment there was an appeal to the supreme court hy the defendant ; the court h was error i'n the superior court, because it ought to have dismissed the appeal from the county court ; hut eosts were awarded to the appellant againstthe appellee andhis sureties. Ibid. 20. The appointment of a guardian being a matter of rl tion in the superior court, no appeal will lie from it to the su- preme court. Battle v. Vide, 4 Dev. 294. 21. When the superior courts make amendments in their dis- cretion, as when a judgment is entered nunc pro tunc, the supreme court cannot revise the exercise el' the power. Bright v. Sug f. 1 1 >ev., 4!i± ii. When the supreme court affirms the judgment of the supe- rior court, ordering a defendant in a m. sa, \>> he imprisoned, it 74 APPEAL.— VI. directs a procedendo to the court below to carry trie judgment into effect. Page v. WinningJiam, 1 Dev. and Bat., 113. 23. Discharging a rule to show cause why a new trial should not be granted is not a judgment, from which an appeal can be (taken. State v. Osborne, 1 Dev. and Bat., 114. 24. Upon an appeal from a judgment that an indictment be quashed, the supreme court will not revise the exercise of the power to quash, hut decide upon the sufficiency of the indictment, as it would appear upon a demurrer, motion in arrest or writ of error. State v. Baldtoin, 1 Dev. and Bat. 195. 25. The act of Assembly, which requires the transcript, on appeals to the supreme court, to be filed within the first seven days of the term next ensuing the appeal, does not apply to appeals in criminal cases. State v. Dickinson, 1 Dev. and Bat, 349. (See Rev. Code, eh. 4, sec. 25, which makes it the duty of tire clerk of the superior court, to file the transcript on or before the seventh day of the next term of the supreme court.) 26. An appeal lies from the judgment of the superior court, ordering a postmaster to be fined for non-attendance as a juror. State v. Williams, 1 Dev. and bat, 372. 27. An appeal lies to the supreme court, from all acts of the superior court, professing to he final adjudications on questions of right, notwithstanding such adjudications may be irregular and void. Darden v. Maget, 1 Dev. and Bat., 498. 28. An ex parte proceeding, upon which no judgment can be .given affecting others, is not comprehended in the term "ac- tion," as used in the 90th section of the act of 1777, and upon an appeal to the supreme court from an irregular judgment of the court below, by a person not a party to the proceedings, the court may, in its discretion, adjudge that neither party to the appeal .shall pay costs. Ibid. (See Kev. Code, eh. 31, sec 75.) 29. The act allowing appeals to the supreme court, from interlocutory judgments, does not alter the nature of the jndg- ments to be reviewed, but only the time of that review. Noth- ing hut errors in law can lie examined on appeals to the supreme court : hence an order giving the defendant time to plead, unless the plaintiff will consent to certain terms, is not tin- subject erf an appeal. Bank of the State v. TayUr, 2 Dev. and Bat, 250. (^r<- ReV. Code, eh. 4, sec. 23.) 30. The supreme court will, upon an appeal, reverse a judg- ment of the superior court refusing to act upon a discretion- ary power, when such refusal proceeds not upon the exerise of its discretion, but upon the ground of a want of power to act. Winsloxo v. Anderson, 3 Dev. and Bat, 9. 31. Upon appeals from interlocutory judgments, nothing should he certified except so much of the case below, as is necessary to present the point to be reviewed. Smith v. Collier, ■ \ 1 >o\\ and Bat., 67. 32. An appeal will not lie sustained when there is no judg- APPEAL.— VI. 75 merit between the parties, nor at the instance of one "who is not a party to the ean.se. Silevv. Blake, 3 Dev. and Bat., 93. 33. Where, upon a conviction for fornication and adultery, the defendants were fined severally, and nothing was said as to how the costs should be paid, it was held, that the judgment was several as to the costs also, and that one might appeal without the other. State v. Jolly, 3 Dev. and Bat. 110. 34. Appeals in erimiiial cases annul the sentences rendered below, and whether the sentences be approved or disapproved, they are not to be affirmed or reversed in the supreme court; but the decision of that court is to be certified to the court below, with instructions to proceed to judgment and sentence thereon, .agreeably to that decision and the laws oi' the State. State v. Manuel, i Dev. and Bat, 20. 35. An order of the superior court, either allowing or reject- ing a motion for an amendment, where the court has the power to amend, is a matter of discretion and cannot be appealed from. Anders v. Meredith, 4 Dev. and Bat., L99. 36. The fixing of the terms, on which an amendment is allowed, is a matter of discretion with the court which allows it, and it is not the proper subject of an appeal. Clements v. Van Nbrdt ". 4 Dev. and Bat., 235. 37. An appeal will not lie from a judgment, which is in its nature and professes to 1 >e final, when it appears that at the same term, wherein Che judgment purports to b< rendered, a ride was obtained by the party cast, to exclude from the taxed costs cer- tain witness tickets, which rule was ■" suspended and continued over to the next term .for hearing." Goodbread v. Wells, 4 Dev. and Bat, 271. 38. The superior court may gra/at a new trial on the ground of excessive damages, but that is a matter exclusively within its jurisdiction, and cannet be revised in the supreme court upon an appeal. Brown v. Morris, 4 Dev. and Bat., 4i'!i. 3D. Upon an appeal from an interlocutory judgment in the superior eeurt under the act of 1831, the supreme court ennnot receive a suggestion of the diminution of the record, and there- upon take steps for bringing up proofs, or in any respect altering the form in which the case is sent up; and if the judge of the superioi court send up points which he has decided, without also sending up the facts on which those points arose, or sending the evidence, at least, on which he grounds his opinion, the supreme court will be unable to decide the matter of law raised on the record, and consequently cannot take jurisdiction of the case, b.ut will dismiss the appeal as having been improvidently granted. Morrison v. McElratli, 4 Dev. and Bat., 474. (See Rev. ('ode. ch. 4, sec. 23.) 40. If, upon an appeal of one alone of two or more parties hi a judgment of the county court, the superior court proceed ia 76 APPEALAVl the caitse, .-in 1 render judgment tlferein Against the appellant, and he thereupon appeal to the supreme court, the latter couri will not dismiss the appeal for want of jurisdiction to entertain it, Stiner v. CcttOthom, 4 Dev. and Bat, 501. 41. On petitions lor distributive shares, which are in tho nature (of proceedings in equity. arJ appeal on account of costs only will not be entertained, except tinder very peculiar circum- stances. Griffith v. Byrd, 2 tred., 72. 42. When an interlocutory decree below is appealed frotri, if is the duty of the court below to slate specifically, in the base transmitted to the supreme court, the question of matter: from a decision on which the appeal is taken. Jacocks v. Mullen, 2 Ired., 162. 4.">. Where a mandamus is issued against the justices of a county, in their official capacity as justices of the county court, and a judgement rendered against them, they may appeal, al- though a minority of the justices refuse to join, in the appeal. State v. Justices of Moore County, 2 Ired., 430. 44. The rule as to appeals, in relation to joint individuals, defendants to a suit, does not apply to a case of a number of persons in an official capacity. Ibid. 45. All of the plaintiffs, or all of the defendants, must join in an appeal from the superior to the supreme court, or the appeal will be dismissed. Williamson v. Gilchrist, 5 Ired., 228 (But see Rev. Code, oh. 4, sec. 27- ) 44. Whether, after the defendant hasclosed his evidence, the court will permit the plaintiff to offer evidence; which might have been ottered in the first instance, is a matter of discretion, which is not the subject of appeal. Smith v, Smith, 8 Ired, 2! I. 47. A plaintiff may appeal from 3 judgment hi his own favor. Lenoir v. South, 1<) Ired., 237. 48. Where three are sued in debt, and one of the defendants, not contesting the plaintiff's right to recover, pleads that he is the co-surety of one of the other defendants, and a verdict is found against him, it is very doubtful whether he can appeal at all ; but certainly he cannot appeal alone. Loftin v. Korne- gay, 11 Ired., 437. (One of two or more defendants may now appeal alone. See Rev. Code. eh. i, sec. 27.) 49. When both parties appeal from a judgment of the supe- rior court, (he clerk must make out two transcripts, so as to constitute, as they really are. two cases in the supreme court ; and when this has been neglected, the clerk of the supreme court will slate two ease's on his docket, and charge costs in each en e. Dsrere'tx v. Bun/ioyn, 11 Ired., 4!)0. 50. If. alter the decision of an appeal, the superior court refu- ses to obey the mandate of the supreme court, an appeal cannot APPEAL.J-VI. 77 again be bad, for tlicTe is no question to be reviewed ; but the party aggrieved must apply for a mandamus. Ray v. Bay,, 12 I red., 24. 51. Where the superior court, upon the facts submitted to and determined by it, refused a motion to dismiss a guardian, it teas }ie!d that an appeal could not be taken from their decision. — Jones v. ./tuns, 12 Ired., 98. 52. A party cannot appeal, when the judgment is in his favor and just as he wanted it. Hole v. Carter, 12 [red., 327. 53. [t is only when both parties except to the judgment as eiTo nous, that both have a ground for appeal. Ibid. 54 Where then' is an appeal from an interlocutory order in a cause, and the parties proceed to the trial of the cause, without waiting for the decision of the matter appealed from, the appeal will be dismissed at the costs of the appellant. Lovcv. Johnston, 12 [red., 367. 55. Upon the plea of "nul tiel record," whether the record exists is a question of fact ; what is its effect is a question of law. From a decision on the former, the party cannot appeal ; but from a judgment on the latter, he may. Tricev. Turrentine, 13 [red., 212. 56. Where a judgment on the plea of "m,l tiel record" is re- versed on appeal, the ease must be sent back for the judgment of the court below, as to the fact of the existence of the ri cord. Ibid. 57. The decision of the judge below, as to what an i ment alleged to be forged contained, as decided 1 •. irigpecl on cannot be reviewed upon appeal to the supreme court. Weaver. 13 (red., 491. 58. Whether a witness, who has been onceexami i re-ex imined is a question of discretion for the judge below, and no appi al lies from his decision. Ibid. 59. An appeal from au order of the superior court granting an alternative maiidamus, after the supreme court had i i former appeal from an order on a rule, decided that the relators were entitled to an alternative mandamus, is-] State v. Justices of Anson, Busb., •".' '. 60. Where the superior court has the power to allow am amendment, an appeal will not lie from its discretionary cxer-: cise of the power ; but if it allows an amendment when il !a$s no power, an appeal will lie to the supreme court. Pfttfli/v ,'. ///■ den, Busb., 3?0. ° 61. The judgment for costs under , the act, Ilev Stat ch J sec. 9, is a matter of discretion in tbe superior court, and is not the -subject oi an appeal. McRae v. Leary, 1 Jones, 91 (See .hew Cod« ch. 1. sec. 9.) ' v " ''-• '" "" ; " |j " 1 of ejectment, where the plaintiff declared "1 °" tlae '•""•— oi several lessors, upon three several counts a 78 APPEAL.— TI refusal to strike out two of the counts, upon the motion of the defendant, was a matter of discretion from which an appeal would not lie to the supreme court. Pigrjott v. Cheers, 1 Jones,- 356. 63. It is a matter of discretion with the superior court,- whether it will make an order on tvie plaintiff to give further security for costs, and no appeal lies from iis decision to the supremi court. State v. Cox, 1 Jones, 373. 64. An order of amendment, that an order made at a formei term, bat not then entered, shall be entered nunc j>rn tunc, is not the subject of an appeal to the supreme court. Mayov. Whitson, 2 Jones, 231. 65. Where a. superior court, having a discretionary power to pronounce upon a matter decided in a county court, gives a judgment, not in the exercise of such discretion, but in obedi- ence to a supposed principle of law, as to which it was mistaken, an appeal will lie to the supreme court, and the judgment may be reversed. PoweU v, Jojding, 2 Jones, 400.. 66. An amendment made or ordered by the superior court,- in- the exercise of its discretionary power, cannot be revised upon an appeal to the supreme court. Ingram v. McMwris. 2 Jones, 450. 67. "Where a judge is vested with a discretionary power, as in making the appointment <ver the apprentice to another person, Fulfill v. Van / r>,$ I red., 402. 12. The recital oi thi age of an apprentice in : the indenture discharge the dutj which he assumes; and !' i h, . ua ter to the apprentice is one of pi al twist and 'confidence. Hence, upon the death of the master, no riglii ve i mill representive ; and hence also the , ipprentici of his services, because it is ifttent with i tatn of the trust, and against the policy : ;IW . Therefor : s the consideration of a promissory nclnan i dd thai the note was void. AJS'm ■ - ' "' ! '■'' Busb j.-, i ,,., , | ;:, .... Sta1 . ■ : sec. L, the county courts have power to biaidi sod ".all Iree'basi born children," without refer- ,.,„.,. to the eouii li ■■■ o - ' the mother ; the provision tofbindino- •; I ■• Mldren of free persons of color, whose parents db no1 haJ»tudJi enaploj fch f time in some honest and industrious occupation, "applies onilyto the legitimate children of t'l-v negroes, Widgett v. McB.ride, 3 Jones, 21. (See Rev. Code ;h. 5, sec, 1. which adds "of color" to the words "all tree base born children.") IQ \\\ u ,-,. a county court has rightfully and properly bound APPRENTICE.— ARBITRATION AND AWARD.— I. 81 "out an apprentice, it cannot order the cancelling of the inden- tures of a&prenticeship, where then:' is no default of the master. Owens v. Chaplain, 3 Jones, 323. (See Rev. Code, ch. 5, sec. 3.) 17. Although it is visual to have tin- apprentice present in court when he is bound out, yet there is no provision in the statute which makes it necessary to do so. Ibid. 18. Where a slave of ordinary capacity was apprenticed to a ship carpenter and caulker to learn his trade, it was held, to be no defence to an action For a breach of covenant, that the apprentice was obstinate and unwilling to learn the trade, when it did not appear that the master had used the ordinary means for enforcing obedience. Bell v. Walker, 5 Jones, 43. 19. A free infant of color, who is rightly hound as an appren- tice by the county court of a certain county, remains subject to the jurisdiction of that court wherein he was bound, until he is discharged in the manner prescribed in the Revised Code, ch. 5, see. ft. Pruev. HlijhL 6 Jones. 265 Appendix. 20. A father cannot bind as an apprentice his child under twelve years of age; and if the child be above that age, the deed by whi

ii what is submitted to his decision. Walker v. Walker, 1 Winst., 259. 2(5. Where an arbitrator does not make his award upon all the matters submitted to him, the award is entirely void, and the defect may be shown as a defence to an action on the award. But where the submission is of all matters in difference, or of all disputes, without specifying them, the arbitrator may make his award only of such thing as ho has notice of, and his award will be good. And parol evidence is admissible to show what matters are within the terms of the submission, or were brought to the notice t>i' the arbitrator. Ibid. 88 ARBITRATION AND AWARD— V.— ARREST, T. REMEDY ON AWARDS. 1. An agreement between the parties to a cause, made after the issuing but before the return of the writ, referring the suit to arbitration and making the submission a rale of court, does not authorize the entry of a judgment upon an award filed at the return day of the writ. Simpson v. McBee, 3 Dev„ 531. 2. In this State judgments arc entered upon awards where, by the rule f the common law, attachments would issue for the non-performance. J bid. 3. An agreement of parties out of court, pending a .suit, to submit to arbitration, and that the submission and award should be a rule of court, was net such a. rule, as by the principles of the common law, would authorize an attachment to issue for its violation. Ibid, 4. A covenant to submit a matter of difference to arbitration will bind a party to perform the award, although there is no express stipulation to that effect ; a, id. in an action upon the covenant, non-payment of the sum awarded may be assigned as a breach. Simpson v. McBee, 2 Dev. and Bat., 22&. 5. An award, which was to be a rule of court, under a refer- ence by order of court to arbitration, may, in tins State, be enforced by entering a judgment upon it for the debt and dama- ges awarded, instead of proceeding on it by an attachment for contempt. Cunningham v. Howell, 1 Ired., 'J. li. Wnena submission to arbitration is by bond and an award is made, if the award bo for the payment of money u, suit may be brought either on the bond or on the award, at the option of the partv claiming benefit under it. Thompson v. Cliilds, 7 Ired.. 43':). 6. There is no statutory provision in this State upon the sub- ject of awards ; but it is the practice to enter up judgments upon them, in those eases where, by the common law, an attach- ment would have been granted for a disobedience of a rule of court, that is, when.' tlic rule lias been made by the court in a cause pending therein. Gibbs v. Berry, 13 Ired., 388. 7. In a suit upon an arbitration bond, flic validity of the award is not put in issue by 1 lie plea of "conditions performer] and not broken," Kesler v. Kerns, 5 Jones. 191. ARREST. 1. An arrest is an actual interfence with the person, or a compulsory restraint of it. But these terms are not identical], AEEEST. 89 and whore an officer, having a warrant, -went to the defendant, and, informing him of the fact, said to him "do yon submit?" and he answered; "certainly," and went with tin- officer before a magistrate, and there entered into a recognizance to answer the charge; it was held, to be such an arrest as amounted to an imprisonment of the person. Mead v. Young, 2 Dev. and Bat., 521. 2. Where a person went voluntarily heft ire a magistrate, and while there an officer, to whom a warrant against him for a criminal charge was directed, said to him, "there is a warrant against you; do yon submit?" and he replied that he did, and then entered into a recognizance for his appearance to answer the charge specified in the wan-rant, it was held, to be an arrest amounting to an imprisonment of the person. HasMns v. Youijg, 2 J lev. and Bat., 527. ?. An officer, who has arrested a prisoner under a state's war- rant, has a right to tie him, if he believe it necessary to secure him, and of this necessity he is the sole judge. State v. Stolcup, 2 Ired., 50. 4. But if the officer be guilty of a gross abase of this author- ity, that is, if he do not act honestly according to his sense of right, but under the pretext of duty gratifii s his malice, he is liable to indictment, and the jury must judge of his motives from the facts submitted to them. Ibid. 5. In such a case, those who are commanded by the officer to assist him and do assist him are justified, though the officer him- self has abused bis authority, provided they acted bonfiLfide in obedience to his command, and not to gratify his or their malice. IUd. G. If a known officer, who has two warrants in his hands, one legal and the other not, declare at the time of an arrest that he makes the arrest by virtue of the illegal warrant, yet this is not a false imprisonment; for the lawfulness of the arrest does not depend on what he declares, but upon the sufficiency of the authority which he then lias. State v. Kirby., 2 Ired., 201. 7. When an arrest is made by one who is not a known officer, he is bound to make known, at the time, the warrant under which he makes the arrest. Ibid. 8. A warrant from a magistrate in a civil case, upon which bail is not required, is in law but a summons, and gives no au- thority for mailing an arrest. Ibid. ;•. When a sheriff has arrested a person upon mesne process, and taken bail, he cannot afterwards arrest him upon the ground that the bail is insufficient. State v. Brittain, 3 [red., 17. 10. The lawfulness of an arrest does not depend upon what an officer says, but upon the authority he has to make the arrest. Met ds v. ( 'arver, 8 [red,, 298. 11. A deputy of a sheriff is so far !•< and by prec.i pts in the HO ARREST.— AESON. hands of his principal, that neither he nor his principal is liable to an action for false imprisonment, in detaining a man in prison, arrested on one process, and discharged on that, when another valid process is in the hands of the principal, on which he was subject to arrest ; and this is the rule, although neither the deputy nor the person arrested knew that the sheriff had such process. Ibid. 12. To constitute a legal arrest, it is not necessary that the officer should touch the person of the individual, against whom the precept has issued. It is sufficient if, being in his presence, he tells him he has such a precept against him, and lie says, I submit to you) - authority, or uses language expressive of such submission. But in all such and similar cases, it is a question whether there was, or was net, an intention to arrest, and so understood by the parties, and this is a matter to be left to the jury, and cannot be decided by the court alone. Jones v. Jones, 13 Ired., 448. 13. Where the question is whether there was an illegal arrest by an officer, it must be determined by the intention and under- standing of the parties at the time of the transaction. Jones v. Jones, 1 Jones, 491. 14. When a felony has been committed, an officer, or even a private individual, may justify the arrest of a suspected person without a warrant, for the purpose of taking him before a magis- trate to be examined, provided the arrest is made without malice and upon probable cause. Brockway v. Crawford, 3 Jones, 433. 15. What is an arrest is a matter of law ; but whether an arrest was made in a particular case may be a matter of fact, depending on intention, and as such must be submitted to the jury. Journeys. SJiarpe, 4 -hairs. 165. 16. The principlie of the common law, that a suitor, while go- ing to. remaining at, or returning Inane from court, is exempted from arrest, is in force in North Carolina. Hammershold v. Rose, 7 Jones, 629. See (Constable — Of the power and authority of a constable.) (Justices of the peace — < >f justices' warrants in criminal pn n eed- ings, 1-2-3-4—7-9-15-16-17.) (Indictment — Form and matters relating thereto, 109.) ARSON. See (Indictment — In what cases an indictment will lie, 52-53-(;4-i;5-(;6-76-101-103-104-105-106.) (Indictment-Form ARSON.— ASSAULT AXD BATTERY. 91 and matters relating thereto, 115.) (Indictment — Of the trial, verdict and judgment, ." s .) (Indictment — Variance between the allegations and proof, 11.) ASSAULT AND BATTERY. 1. An offer to strike, by one person rushing upon another, will be an assault, although the assailant lie not near enough to reach his adversary, if the distance be such as to induce a man of ordinary firmness, under the accompanying circumstances, to believe that he will instantly receive a blow, unless he strikes in self-defence. Stati v. Davis, 1 Ired., 125. 2. It is not sufficient to< constitute an assault, that a man of ordinary firmness should believe that he was about to be stricken; but if it can be collected from the circumstances that, notwith- standing appearances to the contrary, there was not a present purpose to do injury, there is no assault; and the jury must judge of these circumstances. Slate v. Crow, 1 Ired., 375. 3. Where a defendant raised a whip which he had in hand, and shook it at the prosecutor, being within striking distance, but said, "were you not an old man, 1 would knock you down;" it was held, that this did not indicate a present purpose to strike, and was not in law an assault. Iliid. 4. Where A, being within striking distance^ raises a weapon for the purpose of striking B, and at the same time declares that if B wiil perform a certain act he will not strike him, and B does perform the req'sired act. in consequence of which no blow- is given, yet this is an assault in A. State v. Morgan, 3 Ired., 186. 5. If one man deliberately kill another to prevent a mere tres- pass on bis property, whether that trespass could or could not be otherwise prevented, it is murder; and consequently an assault with intent to kill cannot be justified on the ground that it was necessary to prevent a trespass on property, the rule being that a man shall not, even in defence of his person or property, except in extreme cases, endanger human life or inflict great bodily harm. Ibid. .(>. In criminal as in civil cases, if there lie an assault, it can- not be justified otherwise than by showing specially all the circumstances which renderthe act rightful; and the sufficiency of the alleged justification is a matter of law. Ibid. 7. It is a good defence to an indictment for an assault and battery, that the defendant struck the prosecutor to prevent his taking away the defendant's goods, the prosecutor professing to ASSAULT AND BATTERY. 92 seize them as constable by virtue of an execution, but lie not having been lawfully appointed a constable. And, in such case, it is not neeessary that the defendant should have made an objection to the prosecut* r's authority, at the time the assault \v;is committed. States. jBriqgs, 3 Ire.]., 357. 8. In cases of assault and battery, the party who strikes another must be guilty, unless he be justified in committing it upon the ground of self-defence. The law does nut justify any assault by way of retaliation or -revenge for a blow previously received. State v. Gib-ion. In [red., 214. 9. Whether, when a man presents a pistol at another, threaten- ing to shoot, and the pistol is not loaded, he is guilty of an assault may admit of some question, but the man charged clearly cannot lie excused, unless he proves that it was not loaded; the State not being bound to prove that it was loaded. State v. Clu rry, 11 Ired., 47."). 10. Insolence from a free person of color, to a white man, wall excuse a battery, in the same manner and to the same extent, as in the case of a slave. State v. Joivers, 11 Ired., 555. 11. // seems that, though an assault with intent to murder was formerly considered a felony, it is now held to be a misde- meanor only; and although it may be a high misdemeanor, it is hot subject to any additional punishment, but only such as, in the discretion of the court, may be inflicted for other misde- meanors at the common law. State v. Boyden, 13 Ired., 505. 12. Where a person had been forbidden a house by the owner, but visits it for the purpose of having music, at the invitation of a servant, at an hour when he may expect to meet the owner, and instead of bringing his violin, he comes armed with :i deadly instrument, and, upon being ordered out by the owner, lie asked the latter to go with him, and this being refused, he stopped at the door and made an assault by presenting his pistol; it was held, that if death had ensued, the defendant would have been guilty of murder, and, therefore, even according to the old authorities, he might weil be convicted of an assault with intent, to murder. Ibid. 13. One may recover in an action for an assau.lt and battery, although he agreed to fight with Ins adversary; for such agree- ment to break the peace being .void, the maxim volenti nun Jit injuria does not apply. BeU v. HansUy, 3 .Tones, 131. 14. A husband cannot be convicted of a battery on his wife unless he inflicts a permanent injury on her person, or uses such' -excessive violence or cruelty as indicates malignity or vindictive* ness; ami it makes no difference that the husband and wife are living separate by agreement. State v. Black, 1 Winst., 206. 15. It is not the belief simply of a man that he is about to .be stricken, which will justify him in striking first, but his beliei ASSAULT AND BATTERY:— ASSIGNMENT. 9$ founded on reasonable grounds of apprehension. State v. Bryson, 2 Winst., 86. 16. One who seeks a fight, or provokes another to strike him, Cannot justify returning the blow on the ground of self-defence. Ibid. See (Indictment— In what eases an indictment will lie, 39- 102.) (Indictment — Variance between the allegations and proof, 7.) (Indictment — Of the trial, verdict and judgment. 3-57-61.) (Indictment — Pleas of former acquittal or conviction, 5-15-16.) (Infants and infancy, 24.) (Tenants in common, 14.) (Evi- dence — In criminal proceedings and indictments, 55.) ASSIGNMENT. 1. Contingent interests, such as executory devises, «fcc., are assignable. A mere possibility cannot be transferred, but by a possibility is meant the expectancy of an heir apparent, or of one who is not of kin to a living man, or the prospect of having a legacy left, £ c. Fortescue v. Satterthioaite, 1 Ired., 566. 2. Where a plaintiff in a petition claims to be an assignee by a written instrument, whether he is so or not is a question ot law for the court, not of fact to be submitted to a jury. Clark v. Edney, 6 Ired., 50. 3. The assignment of a covenant for the delivery of staves does not, at law, transfer the interest in the covenant. Cook v. Arthur, 11 Ired, 401 4. Where a person hired a slave to another, and one of the Stipulations at the hiring was "that the negro should not go by water," and the person who hired the slave permitted others to use him, and by them he was employed en the water, in con-- sequi ace of which he lost his li,\; it was held that tin se latter persons were not answerable in damages to the owner of the slave for his loss, because the stipulation was m rely personal and could not pass by assignment. Wilder v. ,11 Ired.. 421. Seel Assumpsit— When it will or will not lie, 21-52.) (Bonds — Of the assignment of bends.) (Chose in action, 3 5.) (Eject- ment — Of the title necessary to support the action, 5-22-71-72.) (Estoppel— By deed, 15.) (Guaranty, 10-11-16.) (Husband and wife — Husband's interest in his wife's estate, i c, 11-17.) ^Judgment — Of the assignment of judgments.) ( Landlord and. Tenant. 3. ) ASSUMPSIT.— J. 94 ASSUMPSIT. I. When the action will or *.vill not lie. II. Of the consideration. IK. Pleadings, evidence and judgment). IV. Defence against the action. I. WHEN THE ACTIOS WILL OK WILL NOT LIE. 1. Assumpsit will not lie to pay a sum due by a judgment. Tune v. WiUiams, 1 Hay, 18, (25.) 2. Assumpsit will not lie on a sealed instrument, though uriati tested. Ingram v. 11,11. Mar, 1. S. C, 1 Hay., 193, (222.) (Overruling Colha.rd.ie v. Stanton, .Mar., 22, 7.) 3. Money deposited by ctoe person to 1"' paid to another, upon a contingency, cannot be recovered by that other, but must be sued for bv the person who made the deposit. Clary v. Allison. 1 Play. Ill, (128.) 4. Assumpsit for the use and occupation of a house will lie upon an express promise to pay; bul not it seems upon an d promise, because debl foi r ■ is the appropriate action, i Hay., 485, (559.) S. P., Ha\ •. : onf. Rep., 19,(159.) ("Either assumpsit or debt ma; brought, fiev. 1 ' de, oh. 63, sec. 2.) 5. Assumpsit will not lie where a party has a remedy on a at under seal, as on a charter party. Davis v. Gibson, Conf. Kep. 102, (233.) 6. Where the owner of a shv\ for the repay meht of a sum borrowed, and afti wards repaid the money and took back the slave, held thai he was entitled to recover from the pledgee in assumpsit, the valui services . on the sum borro I. Houten v. HoUiday, 2 Murph., 111. S. C, 1 Car. L. R, 87, (11.) 7. Whenever one man receives money belon i i another, without any valuable consideration given, the law implies that the person receiving it promised to account for it to the true owner; and for the -breach of this an action for money had and received lies. 8. One having paid by mistake a fifti i dollar hank note, cannot maintain assumpsil for forty-five dollars, as bank notes are notSmoney, and e ecanbe i plied in such a case to pay money. Filqo v. Penny, 2 Murph., 182. 9. Assumpsit will not he to i . thing, sold at auction on a credit, until afti credit has expired, although the bidder refuse ■ the terras of / v. fyiorris, 2 Murph., 248. S. (_',. 1 Car.. L. I', 102, (13.) ASSUMPSIT. 95 10. In such a case the seller must wait until the term of the credit has expired, or he musl sue for the bn i ontract, in not complying with the conditions of the sale. Ibid. 11. A plaintiff cannot abandon a count upon a special agree- ment, and recover upon the coi □ count, on the ground that the written evidence' if the special agreement has been lost. McFarlandjr. Patterson, 2 Car., L. R., 618,(421.) 12. Where W was indebted, both to the plaintiff and de end- ant, and the latter authorized an agent to collect bis debt, but not to bind him by deed, and the agent purchased from W a vessel, on account of his principal, whose debt was to go in part payment, and by an agreement under seal the balance was to be paid to the plaintiff; afterwards the defendant knowing what his agent had done, approved of it, and received the vessel; still the plaintiff was held not to be able to maintain assumpsit for the sum agreed to be paid to the plaintiff by the deed. Diek- .ns m v. Rodman, X. C. Term R., 88, (525.) 13. Where two persons agreed upon the price to be paid for a pair of ho ses, but the sellersaid that he could no! pari with them until they had made another trii i i I and that when he lined that the purchaser y with a third person, he would deliver tl I driver for the purchaser ; and during the trip i horses was badly injured; it was held, that the sell, i - recover the money from the third person, with whom ii had ited, though h i -id the horses and di the contract of sale was not complete, and the right to the horses had not been changed. Branson v. Gales, 3 Murp., 312. 14. Where a sheriff having an execution in his hands had, by the consent of the plaintiff and the ecution, ted with a purchaser at private sale, for property levied on by him under the execution: , that the contract enured to the benefit of the defendant in the execution, and that he might sustain assumpsil on it, in his own name, the sheriff having arsted as hif a y. Lof'tin, 2 Hawks. 199. 15. If one receive in payment or exchange counterfeit bank not 1 1, he may treat them as a nullity, and recover back the amounl in assumpsit, although the par; guilty of no fraud. Hargrove v. Dusenbury, .' i lawks, 326. 16. When one recives counterfoil hank notes in exchange fo a good one, ho may treat them as a nullity, and recover the amount in an action of assun i n ceived Anderson v. Hawkins, 3 Hawks. 568. 17. Assumpsit will not lie on a justice's judgment ; the action should be debt. Bain v. Hunt, 3 Hawks, 572. S. P., Hamilton v. Wright, 4 Hawks, 2*3. 18. Assumpsit will not lie on a promise to pay a debt when 96 ASSUMPSIT.— I. the same debt may be recovered in an action on a specialty; bufi it is otherwise when, from any cause, no action on the bond can be sustained. Wilson v. Murphey, 3 Dev., 352. 19. Where land was demised by deed, and the lessor covenanted to pay for certain work done on the premises by the lessee, and, after the expiration of the term, the lessor promised to pay the lessee- an ascertained balance for the work done, il was held, that assumpsit for the balance could not be sustained. Ibid. 20. Money received by the cashier of a bank, on deposit, be- comes the property of the bank, and the cashier is accountable to the bank lor if. although it may never be repaid to the depos- itor. State Bank?. Locke, t Dev., 529. 21. Where a person assigned his distributive share of an estate, and afterwards collected and used the amount due for it, assump- sit will not lie against him by the assignee; for the assignment did not transfer at law any title to the distributive share, what- ever it might do in equity. Smith v. Gray, 1 Dev. and Hat., 42. 22. Where an agreement in writing forthe exchange of slaves was made, and one of the parties afterwards refused to complete the contract, it was held, that he might be sued in action of assumpsit, to recover damages for a breach of the special agree- ment, Mobly v. Fossett, 3 Dev. and Bat,, 96. 23. Whether upon the payment of the price of slaves partly in counterfeit bank notes, the vendor may not recover the amount of the notes upon an express, or even an implied promise to make them good, notwithstanding a receipt and acquittance under seal,qwere: and of an action founded on suci promise a jus- tice has jurisdiction. It is a promise to pay money, if what has been received as a bank note, be not what it purports, and nota guaranty of the solvency or punctuality of the makers of the note. Lowe v. JVeatherly, 4 Dev. and Bat, 212. 24. Where a promise, not under seal, is made to A for the ben- efit of B, the latter may briag an action in his own name, but the promise must be laid in the declaration as having been made to li; and the promise actually made t%A may be given in evidence to support the declaration, for in such case A. is con-- eidered the agent of B. .but where it is apparent that A was the principal, that the contract was for his benefit, and that B was only to receive payment of the stipulated sum for and in behalf of A, then A alone can hiring the action. Cox v. Skeen, 2 [red., 220 2o., A constable gave a receipt to A B, as agenl for C D, for a, note to collect or reim-ii. A 1! transferred the receipt to E Fby endorsement, and afterwards collected the money himself ;; it was held that E F could not recover this money from A B, in an action for money had and received to his use. for the money was received to tie- use of the principal, C D, nor could he recover on a count for a bill of exchange, for it was no bill ci ASSUMPSIT.— I. 97 exchange; nor on a guaranty, fin- he had used no diligence in endeavoring to collect, nor given notice to the guarantor of a default in the principal. Eason v Dielcson, - lred., 243. 2ii. Where e man is cheated out of his money, though it is at a game forbidden by law, he may recover back in an action of assumpsit what he has paid, from the person who practised the fraud upon him. Webb v. Fuhhire, '■'< lred., 485. 27. Where the. plaintiff had a deed of trust from his debtor for certain property, and at a sab-, by execution, of the same property declared that he, objected to the sale, unless the pur- chaser would agree to pay his debt, and he had a private con- versation with the person who afterwards bid off the property ; it was held that there was no evidence of a promise by the pur- chaser to pay the plaintiff's debt, and of course, that the action of assumpsit would not lie. Jordan v. Wilson, i lred., 322. 2& In an action of assumpsit to recover back tolls which the plaintiff had paid to the defendants upon an unlawful demand of them, the payment of the tolls cannot be said to have been voluntary ami not compulsory, when it was made by the patty to enable him to obtain a passage over the defendants road for the United States Mai), which he was bound to carry, and to keep his property from being taken by distress. Newlaiul v. Buncombe Turnpike Company, 4 lred., 372. 2'J. Where a deputy sheriff received money on am execution in his hands, and failed to endorse it on the execution or give credit for it. but afterwards collected the whole amount, without deducting the sum so paid, and subsequently promisedjto pay the ■defendant in the execution, if such mistake had been made; it ■toa.R held, that an action lay against the deputy upon such prom- ise, and that the party was not bound t© sue the sheriff for a breach of his official duty. Tarldnton v. MasseU, 5 lred., 359. 30. Where, upon a contract for work to be done, the workman agri es to be answerable for lost time, the demand for this lost time is in the nature of anliquidated damages, and cannot be set off; but when the party afterwards acknowledges in a letter how much he owed for such lost time, indebitatus assumpsit may Ik. brought for it Wheeler v. Dunn, 5 lred. 380. 31. In every declaratii >n for money paid for the use of another, it must bi laid to have been paid at his request; but this request may be express or implied, and it is always implied in law, when thi payment is tly recognized by the person for whom it is made. Taylor v. Gotten, 6 lred., 69. 32. Where a debtor had two agents; one of whom paid the i a constable who had it for collection, and the other to the creditor himself, it was held, that the debtor might recover back from the creditor the amount thus erroneously paid, with- out showing that the constable had paid over the amount to the creditor. Pool v. AUen, 7 lred., 120. 7 98 ASSUMPSIT.— I. 33. The action of assumpsit is a liberal action, and where, by the obligations of justice and equity, the defendant ought to re- fund money paid to him, the action will be sustained; but where he may with a good conscience receive the money, and there was no fraud or unfair practice used in obtaining it. though it was money he could not have recovered at law, yet it cannot be recovered back in assumpsit. Mitchell v. Walker, 8 tred., 243. 34. Where money, not due, has been paid under a mistake of Facts, it may be recovered back in an action of assumpsit, but not where it has been paid under a mistake of law. A< well v. March, 8 Ired., 441. 35. If A be indebted to B, and put money into the hands of G to pay B, then the latter may sue C for money had and received to his use. Draughan v. Bunting, 9 Ired., 10. 36. Where A has contracted to sell land to B, and afterwards conveyed it to a trustee to be sold for the payment of debts, and on the day of sale, upon B's forbidding the sale; il was agreed by parol between A. B and the creditors secun d by the deed in trust, that the land should be sold, and. the money arising from the sale should be subject, in the hands of the trustee, to the claim of the rightful owner : it was held that although the trus- tee had received the money, he was not ii umpsit to B, because he had but an equitable right. Gaither v. Hetriek, 10 Ired., 114. 37. A made a contract with B that he would place in the handsofa constable a large amount of promisor^ aoti s endorsed by A to B, take the constable's receipt then tbi and deliver it to 15, upon which the latter was to deliver to A cotton yarn to the amount of the notes ; A, without placing the notes in the con- stable's hands, fraudulently procured him to sign a receipt, as if notes had been given him for collection, and hand< d the receipt to B, who. thereupon, delivered the cotton yarn according to the contract; it was held that B mighl sue \ either in assumpsit Where one, in settling with a guardian, paid him by mis- Uiice moretnan was due to him, it tie was entitled ASSUMPSIT.— 1 99 -to recover it Lack from the guardian individually, in an action of assumpsit. Tow v. Elliott, 11 Ired., 51. 41. Xo action at law can lie maintained to collect the assets of a deceased man, exoepl by his personal representative; but where A, claiming a slave as distributee of B, employs C to sell him, which he does and receives the price, he receives it for the use of A, and cannot dispute his title, but is bound to account to him tor it in an action of assumpsit for money had and re- ceived to 'his use. 3IcNair v. McKay, II Ired., 602. 42. Assumpsit will lie lor o-oods sold and delivered, when the contract is reduced to writing, as well as an action on the special contract. It' the sale lie for cash, assumpsit may be brought forthwith ; if on time, then at the expiration of the credit. If a sale be on time, and a note and security be not grven according to the contract, assumpsit will lie at the end of the time, or the party may sue before, declaring specially for the omission to give the note and security. McRcu v. Morrison, 13 Ired., 4(1 43. In assumpsit for work and labor done, the plaintifTcannot recover any thing on a guan^um meruit, where :i special contract is proved, and it appears that he has, against the consent of the defendant, refused to perform his part of the agreement. Win- stead v. Reid, Busb., 76. 14. Where A, in a settlement with B, was allowed a credit of a certain sum due from B to C, it w S held that the law implied such a privity of contract between A and C, as entitled th to maintain assumpsit against the former for money had and received, Carraway v. Cox, Busb., 173. 45. A being the holder of a bond, made by B. payable to (.'. and passed by him to A without endorsement, upon th" repre- sentation of B that he was entitled to a credil tie reon, admitted the credit, took a new note for the residue, ami surrendered the bond. Afterwards A brought assumpsit against B, to recover the sum allowed as a credit, on the ground that i* was not due. and had been allowed by mistake; and it was held that lie could not recover,. because it' any promise of B was to he implied for its re-payment, it was a. promise to the legal owner of the bond. Dickson v. Johnson, Bush., 405. 46. A confessed a judgment to !'. before a justi e for $40, and afterwards paid a. part of it, which B promised to endorse as u credit, hut tailed to do so. and caused a levy to be made on the land of A, had it returned to court, upon which an order was made and the land sold fur the whole amount of the judgment. But beforethe sale. A sued B to recover the sum paid, which he ought to have endorsed on the judgment ; and it was held that the action, supposing i1 could be maintained a1 all. was prema- ture, as there could be no cause of action until aftei the sale Shoemaker v. Hale, Busb., 411. 100 ASSUMPSIT.— I. 47. Where it is admitted that to bind a defendant, an express promise must be shown, it is not necessary that the promise should he proved in so many words, but it may be left to the jury, from words previously used, whether the defendant had not authorised others to assume for him. Bute v. Shipman, L Jones, 10. 48. To recover on the common counts in assumpsit for mate- rials furnished, and for work and labor done, it must be shown that the articles were received or used by the defendant, or was- in some way beneiieial to him. Byerl/y v.Kephy, 1 Jones, 35. 49. Aii actios of assumpsit for money had and received will : not lie in favor of the equitable owner of a chose in action against the legal owner, who has received the money on it. Holiday v. Stier, ' 2 Jones, 389. 50. Assumpsit will lie to recover back money paid for the purchase of a forged promissory note. White v. Green, 5'' Jones, 47. 51. Where B promised to procure the money or a draft, from a merchant who had bought A's tobacco, and to credit it on a bond which he, B, held on A, and negligently failed to do so ; it tvas held, that A was entitled to recover in assumpsit. Wat- kins v. Jones, 5 Jones, 105. 52. Where a contract for timber, made with a railroad com- pany, was assigned for a valuable consideration, and afterwards the company increased the compensation and, upon the comple- tion of the contract, paid the whole amount to the assignor, it Was held that the assignee was entitled to sustain assumpsit for money had and received to his use against him, as well for the additional allowance as fur the amount of the original contract price. Winslow v. Elliott, 5 Jones, 111. 53. Where one agreed to purchase a lot of land upon condi- tion that the seller would deliver him a deed for it, by two o'clock of a certain day, and paid fifty dollars as part of the price, and the seller not having it ready by the hour designated, the purchaser said ho would still receive it, if delivered on that day, but after waiting until nearly dark, ho said he had waited long enough and went off, and refused to receive it when tendered the next daj : it was held, that he was not bound to receive it at that time, and that he could sustain an action of assumpsit, to recover back the money he had paid. Lewis \ . Brinkley, 5 Jones, 295. 54. If one person call in a physician to see another who is siek, and the physician knows that the person, who called him in, was only acting ;is a. messenger, and makes no objection to attending t he sick mas on that account, he cannot recover for his services against the messenger. Smith v. Biddicl; 5 Jones, 342. 55. When a covenant was entered into between two partners, ASSUMPSIT.— I. 101 \ and B, that the latter should take the goods and pay all the debts of the firm, and should repay whatever debts of the firm A sin mill pay, and afterwards, upon B's death, his administrator agreed with A, that if he would not file a hill against him, as administrator, to enjoin the payment of the assets to other debts than those of the firm, he would confess judgments for the firm debts, to a certain amount, and pay the same, which he failed to do, whereby the whole fell upon A; it was heed, that A might sue the administrator, in his ivdwidual character, in assumpsit, upon his special promise. Ball v. Felton, 6 Jones, 202. 5(1 Assumpsit will not lie f< >r g< »ods si >ld and delivered upon an alleged implied contract, in opposition to direct evidence that the defendant did not get the property from the plaintiff, and did not hold under him, but adversely upon a claim of right in himself derived from another person. Lindsay v. McCullorJt, 6 Jones, 326. S. P. Wynne v. La/ham, 6 Jones, 329. 57. Money paid for the purchase of a promissory note, which at the time of the sale had been paid off by the maker, can be recovered back in an action for money had and received, and it makes no difference whether the price paid for the note was al- together in money, or partly in another note which the seller had converted into money. Page v. Einstein, 7 Jones, 147. 58. The doctrine which allows the owner of a personal chat- tel, wrongfully converted into money by a sale, to waive the tort and bring assumpsit for money had and received, can only apply where the owner has a right to the money at the time when the tort is committed. Jones Baird,'! Jones, 152. _ 59. Where A sent B a letter, stating that if he and C wished to hire any negroes for the ensuing year, the writer would "assign as their security," and upon the faith of this letter, the plaintiff hired to B and C certain slaves, it was held, that A was liable in assumpsit for refusing to sign the note for the hire of the slaves. and that, at the tune of the expiration of the credit, the measure of the damages was what the insolvency of B and C had left unpaid of the price agreed to be paid for the hire. It was held furtin /•, that no demand on B and C, or on A, was necessary to be shown previously to iihe bringing of the action, and that the plaintiff's having- received the note for the hire from B and C, after A had refused to sign, was no discharge of the latter. Sleight v. Watson, 8 Jones, 10. fid. A person who presents and collects an order, when it is endorsed to him, collects it prima facie for the payee, and is liable to him in assumpsit for it. Bund v. Hull, 8 Jones, 14. 61. Where an instrument was signed and sealed by one of two partners, and signed only by the other, it was held to be the deed of the former and the 'simple contract only of the other, :>nd tli.it thejatter might be sued alone in assumpsit on.1he instill- 102 ASSUMPSIT.— I.-II. ment. Davis v. Goldston, 8 Jones, 28. (See Rev. Code, ch. 31,. sec. 84.) 62. Where the plaintiff had contracted to serve the defendant ten months for a certain sum, and before the expiration of the time the defendant wrongfully dismissed him ; it was held that upon the common count for work and labor, he could recover for the time he had actually served ; and that if he had inserted a count upon the special contract, he might have recovered the whole stipulated sum. Madden v. Porterjield, 8 Jones, 166. 63. Where one* purchased a vessel of an executor and agreed with him by parol to pay, besides the purchase money to the executor, all the debts due from the testator on account of the vessel ; it was held, that a person to whom one of such debts was due, who was not present at the agreement and who was not shown to have discharged the prior debt, could not maintain assumpsit against the purchaser of the vessel. Styron v. Bell, 8 Jones, 222. « 64 Where a father 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 would not imply a promise from the father to pay his child for keeping, feeding and clothing the slave., Hedrick v. Wagoner, 8 Jones, 360. See (Assumpsit — Pleadings, Evidence and judgment, 6.)- (Assumpsit — Defence against the action.) (Contract — Construc- tion of contracts and when an action will He.) (Evidence — Parol evidence, wdten admissible, 34), (Justices of the peace — Of their jurisdiction, judgment and execution, 15-16.) (Re- mainder — In chattel property, 18.) II. OS THE CONSIDERATION. 1. A consideration is necessary to support every assumpsit. Hence, if an attorney promise his client; during a suit, to indem- nify him against the consecpience of it, the promise will be invalid, because it is without a consideration. Mitchell v. Bell, Conf. Rep. 17, (157.) S. C, Tay. 61, (44) 2. A witness in a suit was fined for a failure to attend, and a judgment nisi entered against him. The party summoning him promised that if he would attend at the next term, the forfeiture should not be enforced. In an action for the breach of this promise, it was held, that the promise was without consideration, as it was only to induce the witness to do that which it was his duty to do. Sweany v. Hunter, 1 Murpk, 181. 3. Where A had conveyed to B a tract of land containing 221 acres, more or less, and it was afterwards agreed between them that the land should be surveyed, and if it were found to contain more than 221 acres, B should gay A ten dollars per acre for thfic ASSUMPSIT.— II. 103 fexcess, but if it fell short, A was to refund to B at the same rate for the deficiency, upon a suit by A for an excess, it was held, that these were mutual promises, of which one was a considera- tion for tin,' other. Howe v. CPMaVuey, 1 Murph., 287. 4. The consideration which is necessary to support a promise must he a benefit to the party promising, or lie attended with trouble or prejudice to the other party. When, therefore, one person, by advice honestly given, induces another to purchase a tract of land, and the purchase proving to bean unfortunate one, the adviser said he would forgive the purchaser a debt he uwed him, the declaration or promise creates no legal obligation on him to do so. Johnson v. Johnson, 3 Hawks. 556. 5. The compromise of a doubtful right is a sufficient consider- ation for a. promise. Truitt v. Chaplin, 4 Hawks, 178. 6. Where one, who had contracted to build a house for another, sold his interest in it before it was completed, without the con- sent of the person for whom it was building, it was held, that nothing passed and that, therefore, there was no consideration to support the promise to pay, made by the purchaser. Johnson v. Carson, 1 Dev., 80. 7. Although courts of law do not take notice of bare equities, yet the forbearance to enforce one is a sufficient consideration to support an action of assumpsit. Nbblet v. Green, 2 Dev., 517. 8. An acknowledgment of a balance "due at the end of three months " for the delivery of certain specified articles, is not a promissory note, because it contains no express promise to pay, but is a stated account; aud a partial failure of the considera- tion, as a mistake in the quantity of articles delivered, may be proved, in reduction of the amount admitted on its face to be due. Purtel v. Morehedd, 2 Dev. and Bat, 239. It. A promise made by the vendor of a slave, upou the slave's being discovered to be unsond, either to cure him or return the the price, there being neither a warranty of soundness, nor a fraud in tin- sale, is void for want of consideration; because there is no obligation on the vendor to refund the money or to cure the slave; neither docs any thing of gain to him, or loss to the vendee, result from the promise. Hatchell v. Odom, 2 Dev. and Bat., 302. 10. It is not every moral obligation that is sufficient in law to raise an implied promise, or support an express one. Such only are available considerations, which would originally have been good, but for some rule of policy, as a promise to pay a debt barred by the statute of limitations, and the like. But a moral obligation, which never could have been enforced, is not a sufficient consideration to support an express promise. Ibid. 11. (jiving time or forbearing to sue for a precedent debt, where th.> party has a remedy in some court either at law, or in equity, is a good consideration to support a promise to pay the 104 ASSUMPSIT.— II. debt. And where the defendant said to the plaintiff's agent; "Tell the old man" (meaning* the plaintiff,) "not to be uneasy, but to wait until next Thursday week, and I will then come to his house and compromise or settle the matter, tor I do nut wish him to be injured," it is evidence, tending- to show such a prom- ise, sufficient to be left to the jury. Lowe v. Weatherly, 4 Dev. and Bat., 212. 12. Where a negro - , belonging to A, was sold by B, at the re- quest of A's wife, in the life time of her husband, and the price was received by B, who after A's death gave his promissory note to the wife for the amount thus received; it loas held, that there was no consideration for the note, because the money be- longed to A's representative. Bryan v. Philpot, 3 Ired., 4f>7. 13. Mutual promises constitute a good consideration for a con- tract. Whitehead v Potter, 4 Ired.. 257. 14. The plaintiff was the trustee in a deed of trust made by A, to secure a debt he owed to B, and the defendant was also a creditor of A ; under these circumstances, a promise by the plain- tiff to forbear proceeding under the deed in trust would not amount to a good consideration at law, to uphold a promise of the defendant to pay to the plaintiff the debt due by A to B, so as to enable the plaintiff to declare upon it in his own name. Jordan v Wilson, 6 Ired., 430. 15. Where wrecked goods were placed under the care of the wreck-master by the captain of the vessel, to be disposed of according to law, and the owner afterwards, and before a sale, promised the wreck-master that if he would deliver up the goods to him, he would pay him his commissions; it was L. To make a consideration for a promise, it is not necessary that the person making the promise should receive or expect to receive any benefit; it being sufficient that the other party should be subjected to a loss or inconvenience. Broun v. Ray, 10 Ired, 72. 17. A trust or confidence reposed by reason of an undertaking to do an act, though the undertaking be entirely voluntary and gratuitous, is a sufficient consideration to support an action on the promise. Ibid. 18. If a contract, to perform certain stipulated services for a certain sum. is not rescinded by the mutual consent of the par- tics, then a promise to pay an additional sum for the same ser- vices is without consideration and cannot be enforced. Fesp&r- 7iioii v. Parker, 1<> Ired., 474. 49. A promise by a man, that if B would marry and have a child by his wife, he would pay him a certain sum, is a valid contract founded upon a sufficient consideration, and upon the contingency happening B is entitled to recover the amount. ASSUMPSIT.— IL 105 with interest from the time the child was born. Garvin v. Gromartie, 11 Ired., 174. 20. The mutual promises of parties to a special contract are sufficient legal considerations for either to maintain- assumpsit fora breach of it by the other. Abrams v. Suttles, Busb.. 99. 21. A loss or injury to the plaintiff, though there be no bene- fit to the defendant is a sufficient considerate >n to support a promise by the latter. Weatherly v. MiUer, 2 Jones, 166. 22. An agreement between two personsis good, when founded upon the consideration of a compromise or arbitration of a right which is doubtful, or is supposed by the parties to be doubtful, Mayo v Gardner, 4 Jones, 359. 23. Mutual promises may constitute a sufficient consideration to support a contract. Forney v. Shvpp, 4 .Tones, 527. 24. Inconvenience or loss arising to a party, to whom a promise is made, is a sufficient consideration for the promise il'atkins v. James, 5 Jones, 105. 25. An agreement 4>y which one of the parties is subjected to trouble, loss or inconvenience, is not a nudum partum. Findleif v. Ray, 5 Jones, 125. 2li. Where a party had gold and delivered an article of a stip- ulated quality, an agreement afterwards, without any further consideration, to warrant it to be of a better quality, was hdd to be a nudum pactum. McBugald v. McFadgin, 6 Jones, 89. 27. Where the obligor and obligee in a bond, conditioned for the conveyance of land, agreed to rescind the contract, and in pursuance of such agreement, the obligee gave up the bond, and the obligor the notes taken lor the price of the land, it teas held that a promise afterwards made by the obligor, to pay back a sum of money which had been paid towards the price of t he- land, was founded upon an executed or past consideration, and waB, therefore, a nudum pactum. Fulken. Fulke, 7 Jones, £97. 28. The guaranty of a promissory note, made subsequent to the execution of the note, without any new consideration, is a nudum pactum, and, therefore, void. Gncr v. Jones, 7 Jones, 581. 2!t. Where the owner of a rice mill, who had a turn at his own mill, agreed to let a customer have it, but there was no particu- lar inducement shown, or other explanation given; it teas held that there was no consideration for the agreement, Ashe v. De Boasett, 8 Jones, 241. 30. The existence of a claim in equity is a sufficient consid- eration for a promise thereon to pay money, or other thing, and such promise may be enforced in an action at law. Hudson v. Crifcfter, >S Jones, 485. See (Bailment 9.) (Contract — Of the sale- of personal chat* .tels, 32.) (Executors and Administrators — Of their liability t"> 106 ASSUMPSIT— II.-IIL creditors, &c, 63-64.) (Husband and Wife — Of the liability of a wife for her acts during coverture, 2.) III. PLEADINGS, EVIDENCE AND JCDG5IENT. 1. hi an action of assumpsit against two, since the act of 1789, where the jury find that one assumed and the other not, judgment mav be rendered in favor of tin plaintiff against the one who is found to ha^e assumed. Jones v. Boss, 2 Car., L. R, 450, (335.) (See Rev. Code, eh. 31, see. M,) 2. A declaration in assumpsit that the defendant promised to pay for a certain house " what A, B and C should say it was \vorth," is supported by evidence that he promised, in writing, to pay " what A, B and ( ' should say." Manning v. Saivyer, 1 Hawks, 37. 3. In assumpsit matter, which arises after the plea pleaded, may be give in evidence under the general issue, in mitigation of damages; and if pleaded it would have barred the action, the plaintiff will bo entitled to onlv noimnal damages. Moore v. McMairy, 1 Dev., 319. 4. A right of a< tiorj is not destroyed by an agreement, which only gives the plaintiff another action of the same kind; hence a parol agreement to refer a claim to arbitration is no bar to an action of assumpsit upon the original claim. Swaim v. Swaim, 3 Dev., 24. 5. A count in assumpsit, for money paid to B by A at the request and to the use of C, is supported by proof of the sale of a bond by A to B, and that B credited C with the amount. Jones v. Cook, 3 Dev. 112. 6. Where a child, upon his arrival at full age, continues to- reside with and serve his parent, the relation subsisting between the parties is, in an action to recover the value of those services, a circumstance from which the jury may infer that they were gratuitous. iViltiams v. Barms, 3 Dev., 348. 7. Where a merchant renders an account to one of his custo- mers, and the latter keeps it without making objection to any of the items, the jury may infer an admission of its correctness, and a promise to pay the balance. Webb V. Chambers, 3 Ired., 374. 8. In assumpsit for goods sold and delivered, if the parties have dealt with each other so loosely that it is impossible to show the precise quantity of articles delivered, or their quality or value, it is proper to allow jurors to act on testimony which will enable them to approximate the true amount of damages to be given. Harrison v. Bridgi rs, I .'ones, 77, 9. In assumpsit on a. special contract; for the price of a slave, the purchaser cannot give in evidence that the slave was un- sound and wothless. His remedy is an action for a deceit or on a warranty of soundness. Baines v. Drake, •"> dunes, 153. 10. In assumpsit for work and labor, it is the province of the- ASSUMPSIT.— III.-IV..— ATTACHMENT.— I. 107 jury to estimate the value of the plaintiff's services, according to their nature and extent as proved; and it is not essential for the witnesses to state the value in money. And it is immaterial tor a witni ss to say how much the services were worth for half an hour, during which lie saw the plaintiff at work. Madden v. Porterjidd, 8 Jones-, 166. IV. DEFENCE AGAINST THE ACTIO:?. 1. In assumpsit by a woman fur a breach of contract to marry her, if the defendant can aver and prove that she was unchaste at the time of the promise, it will lie a complete defence against the action. Gaskill v. Dixon, 2 Hay., 350, (536i) ATTACHMENT. I. When an attachment shall issue. II. What may or may not he attached. III. Of the return of an attachment and proceedings thereon. VII. Attachment against steamboats and other vessels, under the act of 1854. VIII. Attachment on account of an in- IV. Of an interpleader. jury to person or property. V. Of a garnishee- and proceedings | IX. Of judgment and execution in at- against him tachiaents, and their effects. VI. Of the replevy bond. L WHEN AN* ATTACHMENT SHALL ISSUE. 1. Although the defendant is not about to remove, if the plaintiff suspect it, so that he can conscientiously swear that the defendant is about to do so, he may take the oath, and the justice must issue 4 the attachment. If the defendant sustain damage thereby, he may sue on the attachment bond, or, if the oath be maliciously false, he may indict for perjury, but the pro- ceedings must go on. &Neal v. Oioens, 1 Hay., 365, (419.) 2. An attachment bond unattested is goed. Ibid. 3. The attachment law does not require the plaintiff to swear positively to the amount of his debt; and it was therefore held good when the plaintiff swore, that he had good reasons to believe that the defendant and his connections had endamaged him to the amount of, &c, I'mnll v. Hampton, Conf. Rep., 86, (218.) S. P., Bickerstaf v. DMnger, Ibid, 299, (388.) 4. A creditor, who is a citizen of this State, may attach the property of his debtor found here, though such debtor is a citi- zen of. New York and, by an insolvent law of that State, his. 108 ATTACHMENT.— I.-II. property has been assigned for the general benefit of bis cred- itors. BizzeU v._ Bedient, 2 Car. L. R., .254, (233.) 5. A non-resident creditor cannot attach the property of his debtor in this State, when the latter is also a non-resident of the .State, and has not absconded nor removed, to avoid the ordinary process of the law. BrogMU v. Wellborn, 4 Dev., 511. 6. An original attachment cannot issue in this State for any cause of actios arising from tort, but only for those founded on ■contract. Minga v. ZoUicoffer. 1 Ired., 178. (May now issue for torts to person or property, under certain restrictions. See Rev. Code, oli. 7. sec. 16.) 7. A non. resident creditor cannot, under our attachment law, attach the property of his debtor in this State, when the latter has not absconded nor removed to avoid the ordinary process of law. Tat/lor v. Buckle//, 5 Ired., 384. 8. Under the attachment law. a non-resident creditor may attach the property of his debtor residing in this State, who has absconded, or so conceals himself, that the ordinary process of law cannot be served on him. McCready v. Kline, 6 Ired, 245. 9. A carpenter by trade enlisted in the army during the war with Mexico, and during "his absence at the seat of war. B sued •out an attachment, levied on the carpenter's tools which had been left in the possession of a friend, and had thorn sold for the carpenter's debt; and it was held that, whether during a vcfl/fi/nr tary absence of the carpenter the tools of his trade would or would not have been liable to seizure under execution, yet B was liable for a wrongful suing out of the attachment, the car- penter not having fraudulently or privately absconded, within the meaning of the law allowing attachments, and there being no probable cause to suppose that he had. Abramsv. Pender, Busk, 260. 10. An attachment under the act, Rev. Code, ch. 7, sec. 1, may be issued by a clerk of the county or superior court. Cher- n/ v. Kelson, 7 Jones, 141. II. WHAT MAY -OR MAY NOT BE ATTACHED. 1. Money in the hands of a sheriff or clerk of a county court, cannot 1m/ attached. Alston v. Clay, 2 Hay., 171, (360*). S. P. Overton v. Hill, 1 Murph., 47. 2. A surplus of money in the hands of a sheriff, remaining after satisfying the executions which he has, may lie attached by the creditors of the. defendant in the execution. Orr v. McBride, 2 Car. S. R., 257, (236.) 3. Where a trustee, under a deed in trust made to secure cer- tain creditors, had sold the property conveyed, ami after the payment in full of the creditors secured, held a surplus in hands ATTACHMENT.— II. 1(W consisting of notes, it was held, that these notes, though not yet due. were liable to be attached, and the money due on them condemned to the use of the attaching creditor, in a proceeding in which the trustee and the maker of the notes were summoned as garnishees. Pmce v. Junes, 3 Murph,, 256. 4. Property in the hands of an administrator, which will be- long to the debtor as one of the next of kin, after settlement of the administrator's accounts, cannot be attached. Elliot v. New- bi/, 2 Haws, 21. (May now be attached in equity. Sec Rev. Code. ch. 7, sec. 20.) 5. Slaves held by v.: trustee, in trust to be divided among the children of A, who may be now living, and those who represent any deceased child, in the proportion, and alter the same man- ner as if they were claiming the said shares as the next of kin of A, are not liable to an attachment aft the instance of a creditor of one of the cestui ev. and Bat., 502. 7. In an attachment, the defendant, by accepting a declaration and pleading to it, waives all objection to detects in the process. Price v. Sharp, 2 Ired., 417. 8. Where a defendant in an attachment is brought before! justice, not by a levy mi his property. Inn ning a ga:r nishee, no advertisement or notice in writing is required Par- feerv. Gilreath, 7 [red, 400. 9. An attachment issued by a justice out of court, and not made returnable within thirty da vs. is void. Houston v. Porter, 10 lred., 17-1. lit. An attachment, like a warrant, need no1 contain any cer- tain day of return, and conforms to the statute, if made return- able "within thirty days" from its date. Matt v. Simpson, 13 Ired., 7-'. 11. After a defendant in an attachment has appeared, reple- vied the property attached ami pleaded in chief it is two late for him to object to errors in the form of the attachment. Sy- mons v. North . n, 4 Jones, 211. 12. Attachments tin- debt, issued without bond and affidavit, taken ami returned according to the si missed on* motion, but the objection musl I taken by a plea in abate- ment. "Evans v. Andrews, 7 Jones, ill. 1:5. A motion to quash an atta tverred in the lace nf the proceeding thai the plaintiff is a resident of this Stat.-, must be supported by an affidavit asserting that tact. 14. In an attachment for deft, objections to the sufficiency of the affidavit or bond can only !"• taken by a plea in abatement. Cherry v. Nelson, 7 denies. 141. 15. The' plaintiff in a junior attachment cannot be allowed to intervene in an attachment of a prior date, for the purpose of congesting the existence and validity of tin debt therein sued for. Bank of FayettevUU v. Sp irling, 7 Jom See Execution — Lien and priority of executions, -15.) (Juris- diction — Of the county and superior court, 41.) (Process. 12.; 112 ATTACHMENT.— IV. IV. OF AN INTERPLEADER. 1. A party may interplead to an attachment at any time before final judgment ; and to enable him to do so, it is regular to set aside a default which has been entered up two terms. Dodson v. Bush, 1 Car. Law Repos., 23fi, (18.) 2. The word " appeal," in the 9tb section of the act of 1794, in relation to an interpleader before a justice, is not used in its technical sense, and it is not therefore necessary or regular for a magistrate to pass upon a claim of a third person to property attached, before such person can carry his case to the county court. Simpson v. Harry, 1 Dev. and Bat,, 202, (see liev. Code, ch 7, sec. 18.) 3. The claim of an interpleader to property attached, must be a legal claim ; a mere equitable one will not entitle tin; inter- pleader to the property attached. Ibid. ^4. No claim can he interposed by a third person to a dell attached in the hands of a garnishee, as nothing but tangible property comes within the words or spirit of the law allowing an interplea. Ibid. 5. Creditors of garnishees have no legal right to interpose, for the purpose of preventing such garnishees from confessing them- selves indebted to the absconding debtor. Such confession will not affect their claim against the garnishee. But where specific property is levied upon as the property of an absconding debtor, claimants have a right to interpose for the purpose of protecting their present enjoyment of it, and to prevent any injury that might attend its removal. Ibid* (3. The owner of property attached is not obliged to inter- plead, though he may do so for the sake of convenience. A sale under an execution, issuing upon a judgment on an attachment, only passes the right of the defendant in attachment. Darin v. Gmn U, 3 lied., 469. 7. In a proceeding by attachment, when an interplea has been Hied, the only issue submitted to the jury is as to the title to the property levied on ; the jury having no right to assess the value of the property, or damages for its detention or dot ruc- tion. .'■:'<■ L i an v. Douglas, 6 I red., 233. 8. After property is levied on under an attachment, it is, until replevied, in the hands of an officer, in the custody of the law. When the issue as to the title is found in favor of the plaintiff in the interplea, the court, on motion, will make an order on the officer for its delivery, a disobedience of which on his part would be punishable as a contempt. Ibid, '.). If the officer has voluntarily parted with the propertjvor by*his negligence suffered it to be destroyed or injured, he is answerable in damages to the. owner. Ibid. 10. A party claiming title to property seized under an attach- ATTACHMENT— IV.-V, 113 incut, may interplead at any time before final judgment in the attachment. Evans v. Goveftior's Creek Transportation and Ulining Company, 5 Jones, 331. V. OF A GARNISHEE AND PROCEEDINGS AGAINST HIM. 1. Although the sheriff has returned that a garnishee cannot be found, it' he come into court about other business, he shall answer to his garnishment Salmon v. Smoof, Mar., 72, (73.) i. A garnishee may, after judgment againsl the principal, be examined upon points left unfinished on his first examination. MaUett v. London, ± Hay., 158, (341.) 3. An administrator is not liable to answer as garnishee, Whether hiS intestate was indebted to the defendant in the at- tachment. Welch v. Gwley, 2 Hay., 334, (510.) 4. A garnishee cannot be asked v hether he does not owe the defendant in the attachment as administrator, but he inay.be asked whether he dors not owe as heir or devisee. Gee v. WcSr- umJc, 2 Hay.. 354, (544.) 5. A garnishee cannot be .asked whether he lias paid a bond held against him by the defendant in the attachment, and which is move than twenty years old. Gee v. Warwick, 2 Hay. 358, (549) and 398, (599.) ' 6. A garnishnee may avail himself of any defence, which he could make, were he sued by the defendant in the attachment. Russd v. Hintm, 1 Kurph., 4ii.s. 7. Where A, whe was summoned as a garnishee in a suit between B and C, had been induced by B to promise to pay C, on a certain day. a sum of money, for which he was not legally bound hecalase of the contract's being usurious, B impressing A with tin belief that he should not be summoned as a garnishee in any suit of 15s against C, it ivas held, that the promise having been made, although A paid the money to C, after he was sum- moned as garnishee, he should not be held responsible for it on his garnishment to B. Ibid. 8. [n a proceeding on a garnishment under the attachment law, it is unnecessary for the plaintiff to reply on oath to the answer of the garnishee, when- the garnishment admits the possession of property received from the defendant, but sets up a distinct title to it. ' Cowles v. Oaks. 3 Dev., 96. 1). Where attachments were issued and a garnishee summoned at the instance of differenl creditors, and at the same term of the court judgments were obtained against the garnishee in each case, for the sum due by him to the attached debtor, and executions issuing thereto against the garnishee, tested of the same term, were put into the hands of the same sheriff; the money collected by the sheriff must be applied to the executions ■ in, without regard to the priority of time in issuing the 8 114 ATTACHMENT— V. attachments and summoning the garnishee. Freeman v. Grist, 1. Dev. and Bat., 217. 10. An attachment, served in the hands of a garnishee as a debtor, is substantially an action at law by the defendant in the attachment, and, therefore, the plaintiff in the attachment can- not recover against the garnishee, in a case in which the defend- ant in the attachment could not have recovered the same debt. Pattern v. Smith, 7 Ired., 438. 11. A justice, before whom an attachment is returnable, has no right to refer the papers to the county court, unless it ap- pears that the plaintiff made oath before him that the garnishees owed to the defendant some debt, or had property of his in their possession, or that they made such a statement of facts that the justice could not proceed to give judgment thereon; and if the process be returned to the county court, without some of these matters being certified by the justice, it should be dismissed. Miller v. Bates, 8 Ired., 477. 12. Where A, in an attachment against B, had been summoned as a garnishee, and admitted that he owed B in a certain negotia- ble note, payable six months after its date, and it appeared that before the issuing of the attachment, the note, not being due, had been bona fide endorsed to another person: it was held, that a judgment, against the garnishee in the attachment, was not a bar against a recovery on the note by the endorsee. Myers v. Beeman, 9 Ired.. 116. 13. A garnishee has a right to object that the attachment, under which he is summoned, is void. Houston v. Porter, 10 Ired., 174. 14. Where, in a suit by A and B, copartners, against C, he pleaded that in a garnishment by A, one of the present plain- tiffs, he had. admitted that he owed A the sum for which ho is now sued, and he bad paid the judgment rendered against him mi tin.- garnishment; it washeld, that this was not a defence) for lie had confessed a debt due to A alone, being different from that to A and B now sued on. Cook, v. Arthur, 11 Ired., 407. 15. When one is summoned, as a garnishee in an attachment, who owes a note which is negotiable, it' he choose to stand upon his rights, no judgment can be taken against him, without proof that the absconding debtor still holds the note, for, otherwise, it does not appear thai lie is indebted to the absconding debtor. Ormonrt v. Moye, 11 Ired, 564. % 16. The service of ao attachment in the hands of a garnishee, creates allien on the debt or money due by him to the debtor, so that lie cannot by payment to the debtor, subsequent thereto. discharge himself from liability. Therefore, where the garnishee, in his garnishment, admits his indebtedness to the defendant in the attachment, and subsequently thereto his agent pays the debt so admitted to be due by him, the plaintiff is nevertheless ATTACHMENT— V.-VL-VH 115 •entitled to have the debt condemned in the hands of the gar- nishee, to satisfy his demand. Nor is it any defence to the gar- nishee, that before he was summoned his agent had notice from a third person not to pay the debt, as the plaintiff had threat- ened, or was about to sue out, an attachment, TindeU v. J full, Busb. 3. 17. Where one contracted with a dentist, and paid to him the full value for a set of artificial teeth for his wife, and the husband afterwards absconded; it was held, that the dentist was not liable as garnishee to a creditor, for the value of the teeth. Cherry v. Hooper, 7 Jones, 82. See (Estoppel — By matter record, 8.) VI. OF THE REPLEVY BOXD. 1. Ail original attachment is intended only to compel appear- ance, and tin' sureties to the replevy bond stand as bail, ami may surrender their principal in discharge of themselves. Hightour v. Murray, 1 Hay., 21, (28.) 2. An aetioij of del >t will not lie on a replevy bond given under the attachment law, a sci. fa. being the proper remedy. Summers v. Parker, N. C. Term li. 147, (,">7'.». ) VII. ATTACHMENT AGAINST STEAMBOATS AND OTUER VESSELS, UNDER THK ACT OF 1854. 1. The proceeding by attachment against a vessel for repairs, ifec, under the act of 1854, is a procceeding in rent, and no per- son can be allowed to interplead, claiming the property to be his; but any person interested in the thing (the vessel) can make himself a party to the proceeding, and may thus have an oppor- tunity of contesting the justnessof the claim. Cameron v. The Br'ni MareeUus, 3 Jones, 83, (See Rev. Code, eh. 7. sec, 27 and 28. ) 2. The meaning of the act, Rev. Code, eh. 7. see. 27 and 28, concerning liens on vessels for repairs, &c, is that the attach- ment, given for the enforcement of the Hen, must lie issued so as to have T h :\ essel seized before she is allowed to depart from the port or place of repairs. Herrimjion v. Schooner, Hugh Chris- holm, 8 .'ones, 4. 3. Where an attachment was sued out against the owner of a steaml t under the R ( v. Code, ch 7. see. -J.~, ami 28, it was held, that the bond for the prosecution of the suit was properly made payable to the "owner" of the boat; and that tin- "owner, " or whoever had interest enough in the suit to have himself made a party to the proceeding, could have a remedy on .-ujhbond. Bryan v. Steamer Enterprise, 8 Jones, 260. 4. The Rev. Code, ch. 7, sec. (!. which authorizes the salo of 1 16 ATTACHMENT— VlI.-YIII.-IX. perishable articles levied on under an attachment, applies only to cases of original attachment, and not to those against steam- boats and other vessels, under the 27th and 28th sections of the same chapter; and, it was held, therefore, that a sale by the sheriff, oi a vessel so levied on under the act, was void, and could not have the effect to discontinue the suit Ibid. VIII. ATTACHMENT ON ACCOUNT OF AN INJURY TO PERSON OR PROPERTY. 1. The affidavit, required under the Revised 'Code, eh. 7, sec. 16, for an injury to the property of another, must set forth that the defendant absconded or concealed himself, within three months after the injury was done, and the attachment must be issued within that time. Webb v. Bolder, 5 Jones, ,">f>2. 2. A defect in the affidavit, in such case, in not stating- that the defendant absconded, &c, within three months after the injury was done, may be taken advantage of by a motion to dis- miss, without the property attached having been replevied. Bid. 3. A false warranty, or a deceit in the sale of personal prop- erty, is not "an injury to the property of another," for which an attachment is authorized to be issued under the Revised Code, ch. 7, sec. 17. Ibid. tX. OF JUDGMENT AND EXECUTION IN ATTACHMENTS, 'AND THEIR EFFECTS. 1. By the special wording of the two acts of 1777 and 1793, a final judgment in an original attachment is equivalent to a final judgment in any other case; and debt will lie on it. Eng- lish x. Retinoids, N r . C. Term'];. 92, (529. ) (See Rev Code, ch. 7.) 2. The suingout a fi. fa. after a final judgment, in an attach- ment case, is a, waiver of the lien created by tin/ levy of the attachment. The property should have been condemned, and a vend* expo, issued; and, if the goods seized be not of tin' value of the ihlit. the plaintiff may have in the same writ :i vt n 1. expo. for those seized, and a fi. fa. for the residue. Amyett v. Back- house, ."> Murph., 63. ;>. Where an attachment *was levied upon a quantity of corn, supposed do he the properly of the defendant, and upon an order of sale the officer returned that older attachments previously levied had exhausted all the property, it was held, that a judg- ment upon this attachment was void, because the defendants interest in the ;prdperty had been divested by the previous at- tachments. Armstrongs. Bdrshaw, 1 Dev., 187. 4. Where A sued Out an attachment, directed to the sheriff or any constable, and returnable to the county court or before any justice, but at no certain day. and it was Levied by a con- stable, and the plaintiff after-wards obtained judgment on it in ATTACIIM ENT— IX. 1 IV the comity court and issued execution, it ivas held, that the attachment being returnable at no certain day and before no certain court was void; 2ndly, that there being no appearance of the defendant to cure any defect in the process,, both a legal seizure of the property and a due advertisement were necessary to render the judgment valid; and as a constable »was not, with- out special order, authorized to make the seizure, it was illegal and the judgment a nullity. Washington v. Sanders, "2 Dev., 343. 5. A judgment rendered on an original attachment cannot be avoided, or reversed, or treated as a nullity, by a mere stranger, for error or irregularity in the proceedings upon which the judg- ment was rendered Skinner v. Moore, 2 Dev. and Bat., 138. (i. Under the act of 1777, the county in which an attachment should issue, returnable to the county court, is the county from which the debtor has removed, or is removing himself privately; and if it be issued and returned te the county court of another county, where the debtor may have property, it may be abated by plea for the want of jurisdiction, as to the person; but if no such plea be put in, and the creditor obtain^ a judgment for his debt, the same being within the jurisdiction of the county courts, such judgment will be valid and conclusive. Ibid. (See Rev. < lode, ch, 7. sec. 1.) 7. By our attachment law, a judgment obtained in a proceed- ing in an original attachment, is placed upon the same footing with a judgment rendered in a court of record according to the corns.' of the common law. It cannot be collaterally impeached by evidem e or by plea, except by a plea denying the existence of the record, and is conclusive, until it be set aside by the same court, or reversed, upon a writ of error or on appeal, by a supe- rior court. Ibid. 8. Where it appears from the record that the property attached is not the property of the: del iter, the judgment thereon is abso- lutely null and void; for an appearance, or service of process on the person or property of the defendant, is essential to the valid- ity of every judgment^ but the tact, that the property attached was ne! that of the defendant, cannot be shown by evidence dehors the record; and the interlocutory judgment, condemning tin' property attached as the property of the defendant, is as much conclusive as any other judgment, until it be set aside or reversed. Ibid. 9. An irregularity or defect in the affidavit, upon which an attachment issued, if error at all. will not render the judgment void. And a judgment for a larger sum, than that sworn to in the affidavit, is erroneous for the excess only. Ibid. 10. If the attachment state that the debtor has absconded from the coufttj in which it. issues, it seems that it cannot be contradicted, as to that fact by evidence in pais, Ibid. 118 ATTACHMENT— IX. 11. A plaintiff in attachment, who obtains a judgment, sues out execution thereon, and becomes the purchaser at the sheriff's sale, will not be affected by any irregularity in the suing out of the attachment, or any other proceeding prior to the judgment. The judgment is the act of the court, and is a sufficient authority for what is regularly, this is' according to the course of the court, done under it. Ibid. 12. There is no law in the statute book, which more demands a strict construction than the attachment law; and very trivial objections to the process, and to the jurisdiction as to the per- sons and the like, are to be listened to, if brought forward at the proper time. Ibid. 13. The levy of an attachment upon land creates such a lien upon it, that if there be a subsequent judgment of condemna- tion and a sale of the land under a writ of v&nd. expo., the title of the purchaser will supersede that of one. claiming under a judgment and fi. fa., posterior to the date of the levy of the attachment, but prior to the judgment of condemnation and vend. expo. Harbin v. Carson, i Dev. and Bat., 388. 14. Under the attachment law, a judgment taken against a defendant, who has not appeared, or some of whose property lias not been attached, is utterly void. Heaver v. Keith, 5 Ired., 374. 15. Although a plaintiff, who obtains a judgment on an attach- ment levied on land, may have taken judgment also against gar- nishees, he has still a right to have the land sold, under the levy and order founded thereon. Simpson v Hiatt, 13 Ired., 470. 16. A judgment in attachments, like judgments at common law, cannot be collaterally impeached by evidence that the plain- tiff's cause of action had not accrued at the time his attachment issued. Harrison v Pender, Busb., 78. 17. Where A obtained judgment on an attachment against B, upon a rule against him by other judgment creditors of B, in attachment, to show cause why the moneys raised by the sheriff's sale should not be applied to their executions and not to his, it was held, that A's judgment could not be collaterally impeached by evidence showing that, at. the time it was finally obtained, the debt had been paid. Harrison v. Simmons, Busb., 80. 18. Where a constable levied an attachment on real estate, and the same, after a judgment of condemnation by a justice having jurisdiction of the amount, was returned to court, where an order of sale mis made, it was held, that any irregularity of the form of the process in respect to the day of its return was cured, and that due advertisement was to be presumed to have been made, and consequently a purchaser under the execution!, acquired a good title. McLane v. Moore, 6 Jones,. 52.0. ATTORNEY, AT LAW— AUCTION, &C. 11$ ATTORNEYS AT LAW. 1. Foreigners not naturalized cannot be licensed as attorneys at law. Ex parte Thompson, 3 Hawks, 355. 2. An attorney at law cannot retain a commission of five per cent, on the amount of a bond placed in his hands for collection, when the money is paid in the clerk's office, and the plaintiff ap- plies in person for it. Leach v. Strange, 3 Hawks, 601. 3. Ordinarily the act of an attorney at law in a cause is to be taken as the act of the party whom he represents. But when the assignor of a note stipulated that it should be placed in the hands of a particular attorney for collection, and by the act of that attorney the interest of the assignor was injured, it was held, in an action between the assignor andassinee, that the for- mer was bound by the act of the attorney, and that the fact that he had no redress against the attorney did not discharge him. Grice v. Ricks, 3 Dev., 62. AUCTION AND AUCTIONEERS. 1. Where the terms of an auction sale were that bond and surety should be given, a person made a bid and the property- was knocked down to him, and he failed to give the bond and security, held, that he was liable for the difference between his bid, and a less sum bid by another on a re-sale. Christmas v. Jenkins, 2 Hay, 395, (594.) 2. When the terms of an auction are advertised or otherwise published, every bidder is presumed to know them, and to pro- mise that he will comply with them. Ibid. 3. It is the duty of an auctioneer to pay over to his employer the proceeds of the sales made by him, and if he fail to do so it will be a breach of that clause of his official bond, which binds him " to do and permit whatever and all the law requires." Commissioners of Raleigh v. HoUoway, 3 Hicks, 234. 4. The purchaser of a slave at auction, where the terms were that bund with security should be given before the title passed. obtains a title, although the bond of another person is taken for the purchase money. Shelton v. Yancy, 1 Dev., 370. 5. A crier who dues nothing but proclaim the bids made at an auction sale, is the servant of the vendor, and has no author- ty to bind him in any respect. Mushat v Breva.rd, 4 Dev., 73. 6. If A employ a crier or auctioneer to cry property at a pub- lic auction, without directing- him not to cry the bid of B, and Bis the last and highest bidder, and the property is knocked off to 120 AUCTION, &C— AVERAGE.— AWARD. hirn, then the contract is complete, provided B complies with the- terms of the auction. Bicksv. BatUe, 7 lred., 269. 7. In such case it is no defence to an action by B against A for a breach of this contract, that A had previously told B that his bid should not be received, unless he so directed the crier or- auctioneer, or unless he objected at the time of the bidding and before the property was -knocked off. Ibid. 8. What is stated by an auctioneer in his advertisement may be explained by what is said by him at the time of the sale. Rankin ; v. Matthews, 7 lred, 286. See- (Fraud — At auction sales.);. AVERAGE. 1. When a vessel is in danger of being Ifeet, and part of the goods on board are thrown overboard to save the residue, and the vessel afterwards comes safe into port, the goods saved shall, be subject to average; otherwise should the vessel never get into port. Ferguson v. Fitt. 1 Hay., 239, (274.) 2. In the case of average loss, whether one of fhe freighters can support a separate action against the master or owner, Qu.? Wiggins v. Tatom, 2 Hay. 385, (587,) 3. A claim on the ground of general average can only arise where a portion of the cargo is sacrificed for the safety of the rest, and that by the direct agency of man. by throwing over- board a part of the cargo, or the whole, in a moment of peril; Hence, when the defendant's trunk, containing money and ap- parel, was put ore board the> plaintiff's lighter, which was over- set.in a sudden flaw of wind, the defendant was held nol to be liable to contribute to pay the expense of raising the lighter.,, although by such means he obtained his trunk. Irving v.. Gla- zier, 3 Car. L. R. 604, (406.) AWARD. See (Abitration and Award.) BAIL— I. 121 BAIL. T. Proceedings against bail I VI. Plea of the surrender or death of the II. Bail Bond. principal. Ill Of the liberality of bail, and what VI1 - Of bail on a warrant issued by a acts will discharge them. j" sice in a cWA case - IV. Of remedies for bail. VI11 0f bail iu criminal eases. V. Plea of nut tiel record. I. PROCEEDINGS Ad.UNST BAIL. 1. It is not necessary in a sci, fa. against bail to sol forth tliat a ca. sa. issued against the original defendant. If the bail wish to avail themselves of a want of a ca. sa,, they must do it by plea. Langdon v. Trot/. 2 Hay., 15, (165,) > s - P. Arroiton v. Jordan, 4 Hawks. 98. (As to the law now, see Rev. Code, ch. 11, sec. 3.) 2. Bail must be proceeded against by sci. fa., not by action of debt. Hunter v. HiU, 2 Hay, 223 (398.; 3. The county, to which the ca.sa. against the principal should issue, is the county in which the defendant was arrestee), unless the return of the sheriff, or something equally satisfactory, evinces that the county, where the defendant was taken, no longer continues to be his proper county. Benton v, Duffy, Conf Rep. 98, (229 ) 4. The return of two niliUs is good service of a .so', fa. against bail. Woodfork v. Brornfield, 1 Murph., 187. 5. The proper county, prima facie, to which a ca. sa. should issue, in order to charge the bail, is the county where the original writ was executed. J'>ut if the defendant have acquired a dom- icil in another county, and the plaintiff have notice of it, the ca. sa, ought to issue to thai county. Firiley v. Smith, 3 Hew. 247. li. A temporary n sidenee in another county, by a single man without property, is not such a change of domicil i s justifies the plaintiff in issuing theca. sa. to any other county than that in which the original writ was executed. Ibid. 7. A sheriff, who dispenses with a bail bond upon executing mesne pr :ss, becomes thereby special bail, and the non pay- ment of the amount, for which he may lie fixed as bail, is a breach of his official bond. Barker v. Munroe, 4 Dev., 412. 8. To charge a sheriff as special bail, when he neglects to return a bail bond, no notice to him of his liability is necessary. Gray v. Hoover, 4 Dev., 475. 9. The bail, on a plea to a sci. fa. seeking to charge them, cannot take advantage of any irregularity in the ca.sa. against the principal, but they may show that the ca. sa. was void. Howzerv. Bellinger, 1 Ired,, 475. 10. The ca. sa. must strictly pursue the judgment and be war- 122 BAIL— I. ranted by it, as iHfthe judgment be against two or more, tbe ca sa. must issue against all, otherwise it is void. Ibid. 11. Where a ca. sa. and a fi. fa, were loth iasued at the same time, and the latter was levied, and while so levied the sheriff returned the ca. sa. "not found," the bail eanuot avail themselves of this in a plea to a sci. fa. to subject them. It is only an irregularity, and the bail cannot by plea take advantage of an irregularity in the process against the principal, as if the ca. sa. has been sued out more than a year and a day after the judg- ment. Wheeler v. BoucliMe, 5 Ired., 584. 12. Under the plea of mil tiel record to a sci. fa. against bail, no evidence can be given of any objection to the bail bond, which is no part of the record. Hamlin v. McNeil, 8 Ired.. 172. 13. A plea that the defendants were not bail is not a good one. If the persons alleged to be- bail, wish in any way to avoid the bind, they must plead mm est factum- Ibid. 14. Where a sci. fa, against bail does not set forth how the defendant became bound as bail, nor recite the cause of action,. nor the court in which the judgment against the principal was obtained, it is fatally defective. Smith v. SJiuic, 8 Ired., 233. 15. Where a judgment is against several, and the sheriff had not taken bail from one; it was not necessary before the act of 1844, eh. 31. to issues a ca. sa, against all, to subject the defen- dant as bail for that one.. Trice v. Turrentine, It) Ired, 543; 16. Under the act of 1844, ch. 31, it is not necessary to issue a ca. sa. at all, in order td subject bail. That act applies to the remedy only, and not to the contract of the bail. Ibid, (See Rev. Code, ch. 11, sec. 3.) 17. The 3rd section of the act of 1844, ch. 31, (providing fur the plaintiff a remedy against the bail of the defendent in a judgment) embraces all judgments. It is,, therefore, no defence for the bail, upon a sci. fa. t<> subject him, that no ca. sa. had issued against his principal, on a judgment in an action ex delicto, 'fihie v. McDufjh, Busb T 131. 18. In & sci. fa, to subject a sheriff as special bail, for having failed to take a bail bond, it is not necessary to set forth the de- claration in the. original action, but only to> state the cause of action, as, for instance, that it was an action of trespass on the case; but it is necessary to state how the sheriff became bail, as that the original writ came to his hands,, and that he arrested the defendant and failed to take bail, whereby, &C., he became special bail, &c: Malpass v. Fcnncll, 3 Jones, 7it. 19. A judgment exceeding tire sum demanded in the writ is erroneous, but not void; and its validity cannot be questioned collaterally. Therefore, where the writ demanded $300, and the jpdgment was fur $309, it was held that a sheriff", who had became hail by failing to take a bail bond from the defendant, could not avail himself of this variance as a defence in a suit by sci. fa. to' subject him as bail. Savage v. Hussey, 3 Jones, 149. BAIL — T.-IT. 123 20. A sci. fa. to subject a sheriff as special bail, by reason of his default, need not set forth the cause of action, upon which the judgment against the defendant was obtained. Ibid. 21. Where bail is given in a suit brought in the county court, and there is an appeal to the superior court, where final judg- ment is rendered against the defendant, the latter is the proper court from which to issue a sci. fa. against the bail. Turner v. White, 4 Jones, llli. 22. In a set. fa. to subject bail, it is sufficient to set out that there was a judgment, without stating the form of action in which it was obtained. And it is also sufficient to allege gen- erally, that the persons became bound as bail at the time of the execution of the original writ, and liable as such by virtue of the act of Assembly. Ibid. (See Rev. Code, ch. 11, sec. 1.) 23. In a sci. fa. against bail, where-the bail bond was assigned to A, "the plaintiff therein named," and the bond showed that the plaintiff was B, who sued to the use of A, it was held that the proceeding in the name of B was proper. Ibid. 24. Whether the provision in eh. 10, sec. 6, of the Rev. Stat., requiring a trial of the pleas entered by bail to be had at the first term, is not altered by the Rev. Code, ch. 11, sec. 4, quaire: Clark v. Latham. 8- Janes, 1. 25. If a sheriff fail to take bail, the plaintiff need not file exceptions nor give him notice, to fix him as bail. Adams v. Jones, 1 Winst., 199. 26. A sheriff is said to fail to take bail, when the paper returned by him as a bail bond is so defective and imperfect as to be adjudged not to be such. Ibid. See (Pleading — Of scire facias and pleadings thereon, 4.) II. HAIL BOND. 1. A paper purporting to be a bail bond, and having all the forms of one except the seal, will not, on the plea of iv/I del record, support a sci. fa., calling on those who signed it to- answer as bail. Walker v. Lewis, 2 Hay., 16, (168.) 2. When the substance of a bond is prescribed by statute, a bond which is so drawn as to include every obligation imposed. by the Legislature and to afford every defence given by law,., will be valid, although it may slightly vary from the literal form prescribed; and it is not necessary to insert, hi the condition of a bail bond, every alternative contained in the 8th section of the act of 1777, on which bail are chargeable,, because the right to be discharged is not given the bail by the words of the bond, but by a public law of which the court is bound to take notice. Modes v. Vaughn 2, Hawks 167.. (See Rev. Code. ch. 105, sec. 19.) 3. A sheriff may,, but he is- not bound to, insist upon two 124 BAIL— II, sureties to a bail bond; if he take one who is insufficient, the plaintiff may except; but the bond will, nevertheless, be good, and will be so held either on a sd. fa. or in an action of debt upon it. Arrenton v. Jordan, 4 Hawks, 98. 4. An assignment of the bail bond, by the sheriff to the plain- tiff, is not required when the suit is in the county court. Ibid. (The law itself now makes the assignment in all cases, Rev. Code, ch. 11, sec. 2.) 5. Upon a writ against A, the sheriff took a bond executed by the said A and one B, and conditioned that tin- said A and B should make their personal apppearance, &c., to answer, &c., it wan held that the bond was not authorized by the act in the Revised Statutes, ch. 109, sec. 19, and was, therefore, void; that it was not a bond containing the contract of bail in its terms, nor could it be inferred from the bond that one was bail for the other, but by it each was alike bound to perform the judgment. Clark y. Walker, 3 Ired., 181. (See Rev. Code, ch. 105, sec. 19.) 6. A writ was executed on A ami B, and the sheriff took from them a bond with a condition "that if the above bounden A and B do make their personal appearance before the .fudge of the Superior Court of Law, &o, then and there to answer, &c, and there to abide the judgment of the said court, ami not depart tlie same without leave first had and obtained, and if the sureties shall well and truly discharge themselves us special bail of the said A and B, then the obligation to be void, &o." Afterwards a noil, pro's, was entered as to A. and a judgment obtained against B, and it mis lull that the bond did not constitute A the bail of B. Bradhurst v. Einoin, 8 lred. 495. 7. The assignment "fa bail bond, by the administrator of a sheriff, passes no such interest in it as to entitle the assignee to maintain an action in his own name against the bail. Mann v. Hunter, - Jones, 1 1. 8. A bond taken by a sheriff on executing a writ, payable to him as sheriff in double the amount of the sum claimed in the writ, and conditioned lor the defendant to appear at, &c, "to answer the plaintiff in a case of damages four thousand live hun- dred dollars, and then and there to stand to and abide by the judgment of i he court, "is a bail bond. Watty. Johnson, 3 Jones,.124. 9. An inconsistent recital in a. bail bond, as to who was the party plaintiff, may be rejected as surplusage where there is enough besides on the face of the instrument, to show in fact who wax the plaintiff. Turner v. White. 4 .Tones 111!. 10. The signing and sealing by a person at the foot of a bail bond, without his name's being mentioned in the condition, or in any part of the body of the instrument, does not make it his hand, nor him the bail of the principal. Adams v. Hedgepeth,*!) Jones, 327. See (Arrest 9.) BAIL- 11 1. 125 III OF THE LIU'.ILITY OF BAIL AND WHAT ATS WILL D1SCHABGB THEM. 1. If the writ be altered from debt bo case, the bail will be discharged. Bryan v. BraMey, Tay. 77, (54.) 2. A. releasi by the plaintiff 's attorney of the person, who is bail for the defendant "frofia being security for him," is a release (if him as bail. Hughes v HoUingsworthi 1 Murph., 14ii. 3. If there be a judgment against two, and the plaintiff take if&e in execution under a ca. so. and discharge him, the bail of heth is discharged. Bryan v. Simontm, 1 Hawks. 51. 4. If two joint obligors be sued, aad one of them give bail, sn.-li bail cannot, upon being compelled to pay the debt by pro- ceed ings against him as such, sustain an action against the other ooligor fi r money paid to his use, there being no privity between the bail of one obligor and his co-obligor. Osborne^. Cunningham, 4 Dev. and Bat, 423. 5. A reference of a cause to arbitration, by order of a court, the aw., rd to be a rule of court, will not, in this State, discharge the bail; though, it seems, that in England; where a cause is referred to arbitrators, the bail are discharged, unless a verdict be taken for the plaintiff, to stand as security for what may be awarded. Cunningham v. Hovxtt, 1 [red., !>. .(i Where a writ is issueu against two copartners for a part- nership debt, and one of them is arrested and gives bail, such bail, upon behag afterwards compelled by due course ol law to pay the debt, 3aas no remedy except against the individual fur whom he beci me bail, as he has no claim against t lie other part- ner. Foley v. Eobards, 3 Ired., 177. 7. A sheriff became bail for two defendants, against whom a judgment was obtained, upon which a ca. sa. issued, which was returned not found as to one and was executed upon the other, when he id for his appearance at court to take the lien- fit of the ad for the relief of insolvents. Before the day for his appearance al court, hi and the plaintiff entered into an agree- ment, that he would secure the plaintiff in some other debts In- owed him, and in consideration thereof the plaintiff was to him from the judgment, under which lie was arrested and w add qo1 oppo e his discharge, but it did not appear that any relea se had e"\ - i » cuted; it was Jwld that the ment did not i a release of titi debt, nor did it discharge the sh rifl from his liability as bail of the other d endant. Fer- raKv. Bru I ! , 67. 8. Wh :re a ji int judgment is obtained against three, and a ca. sa. issued against all, and the sheriff is directed by the plaintiff nottoexecuti a. i. on two, and ;he accordingly forbears to do so, the plaintiff cannot proc I the bail of the third defendant. Tria v. Turreniine, 5 Ired., 236. 126 BAIL.— III.-iy. 9. A ca. so. issued on a judgment against several persons, must be returned as to all, before the bail of any can be subjected. Waugli v. Hampton, 5 Ired., 241. 10. "Where a writ is brought in the name of A B & Co., and it is afterwards amended so as to substitute in the place of A B & Co., the names of A B, C D and E F, composing the firm of A B & Co., it seems that this will operate as a discharge of the bail. Smith v. Shaiv, * s Ired., 233. (Such an amendment would not now dis- charge the bail. See Bev. Code, ch. 11, sec. 11.) 11. When the alteration of a writ, after bail has been given, changes the nature of the action, the bail is discharged. But where in an action against two joint and several contrac- tors, a non suit is entered, and afterwards the nonsuit is set aside as to one and not as to the other, the bail of the one as to whom the nonsuit was set aside and a verdict and judgment subsequently rendered against him, is not discharged. Brad- hurst v. Pearson, 10 Ired., 55. (See Rev. Code, ch. 11. sec 11.) 12. A bail, against whom a sci. fa. has ben, issued, cannot avail himself of the defence that his principal has been arrested on a at. sa., at the instance of another person, and discharged under the insolvent debtor's law. Norment v. Alexander, 10 Ired., 71. 18. Where an action is against two, the entering of a nolle. prosequi against one does not discharge the bail of the other. Hamlin v. McNeil, 10 Ired., 306. 1 !-. A sheriff who has taken a bail bond, but fails to assign it, in consequence of which he is held as special bail, and com- pelled to pay the recovery had against the defendant, may sue on the obligation thus taken, as a common law bond, and recover from the obligor, in the intended bail bond, the amount recovered out of him. Higgins v. Glass, 2 Jones, 353. (The law itself now makes the assignment of a bail bond. See Rev. Code, eh. 11. see. 2.) 15. Where a principal was brought into court by his bail, who announced publicly that they surrender him, hut he was not personally known, to the sheriff* or to any person else in the court except the presiding judge; and he was not shown to the sheriff, hut upon being ordered into custody fled from the court room and made his escape; it was held, that these facts did not amounl to a proper surrender, and it was error in the courtthen sitting so to adjudge, and to order a record to that effect to be made'. Rountree y^WaddiM, 7 Jones, 309. IV. OF REMEDIES FOR TAIL. 1. |,, an action by a person as hail, against one who fraudu- ]. , assisted in removing the principal, the allegation in the declaration, that the plaintiff was the bail, is supported by proof BAIL.— IV. -V. -VI. 127 of his being special bail as sheriflj-under the act. March v. Wilson, Busb. 143. (See Rev. Code, eh. 11, see. 1.) 2. In such action, it is not necessary to averin the declaration that a sci. fa. had issued against the plaintiff as bail, before he satisfied the judgment against his principal. Ibid. 3. A sheriff, who has failed to assign a bail bond, cannot as special bail recover from the obligors in the 1 .'ml, until he has paid the money to the plaintiff in the judgment, or at least until there is a judgment against him for it. Pool v. Hunter, 1 Jones 144. (The act of Assembly now makes an assignment of the bail bond without any act of the sheriff. See Rev. Code, ch. 11, sec. 2.) See (Bail — Of the liability of bail and what will discharga them, 4-6.) V. PLEA OF NUL TIEL RECORD. 1. When bail pleads nul tie! record to a sci. fa., the record of the judgment is referred to by the plea, and if that agree with the record set forth in the sci. fa., though not in that recited in the ca. sa., it is sufficient. Handy v. Richardson, 2 Hay., 138. (311.) 2. The bail cannot take advantage ot the fact that a judgment against their principal has lain dormant more than a year and a. day, before sci. fa. against them. Ibid. 3. Where costsaccrued after judgment, and were not set forth in the set*, fa. against the bail, held, on the plea of mil tid record to be no variance. Alston v. BuHock, Oonf. Rep., 77. (20'.).) 4. The plaintiff in a sci. fa. against bail is not bound to pro- duce the bail bond upon the plea of nul tid record, the bail l«>nd being no part of the record. Mason v. Cooper, 1 Car. L, R., 472,(83.) 5. Bail cannot take advantage ot the omission to issue a ca. sa. upon the plea of mil tid record, for that refers only to the record of the judgment. He must plead a special plea. (Tray v. Hoover, 4 Dev. 477). (The issuing of a ca. sa. is uo1 necessary now to subject bail. See Rev. Code, ch. 11, sec. 3.) VI. PLEA OF THE SURRENDER OR DEATH OF THE PRINCIPAL. 1. Where one, who was proceeded* against as bail by sci. fa. in the county court, appealed from the judgment against him to the superior court, he was permitted to plead, pvii darrein con- tinuan e, in the latter court a surrender of bis principal. Davi- son v. Mull 1 Hay., 364, (417.) 2. The plea of •'surrender,'' by bail, must state whether the surrender was made to the court, or to the sheriff out of court. or it will be bad in form. Ibid. 128 RAIL.— VI. 3. Surrender of the principal by hi* bail at any time, before the final judgment upon the scLfa., discharges the bail from the %osts of the set. fa. Peace v. Person, 1 Murph., 188. (Altered see Rev. Code, oh. 11, sec. 10.) 4. A principal may make a voluntary surrender of himself without the agency or even knowledge of his bail, and placing himself in the power of the sheriff (though at the time under moral coercion,) for the purpose of being detained, is an effec- tual surrender by the principal to discharge his bail. Dick v. Stoker, 1 Dev., 91. 5. No matter can b« pleaded in discharge of the liability of bail, except the death or surrender of the principal. If it be unlawful for the principal to come into the State, or if he be im- prisoned abroad tor a criminal offence, the court may, in its dis- cretion, relieve the bail, but even these facts cannot be pleaded in bar of the action against the bail. Iielief is given in such eases by staying the proceedings against the bail, or by entering an exoneretur , upon motions for which the parties may lie put to their oaths, and the merits tlms determined. Rut no relief will be given where the principal is imprisoned abroad for debt. Granhery v. /W, ;! Dev., 155. 6. A plea of the death of the principal cannot be received in the supreme court, because it has no jury to ascertain its truth Ibid. 7. A sheriff, who ifi special bail, may surrender the principal to himself, and if, after the surrender, he detains the principal and notifies the plaintiff thereof, his liability as bail ceases; and if there be an escape afterwards, the remedy is by debt or case for the escape. Hugginsv. FonvUh, 3 Dev. 392. 8. Bail may surrender their principal after verdict, and before a final judgment against them, and the act, which allows the, surrender, necessarily authorizes some mode of averring it; it should be by a plea so framed as to enable the plaintiff to deny the surrender, and contest the identity of the principal. Moodi) v. Stockton, •"> Dev., 531. If Although the bail may surrender their principal, and the surrender be entered of record at the term when judgment is obtained, yef if the principal do not pray the committal of the principal in execution and the latter should afterwards gout large, this is not a discharge of such principal from execution by the plaintiff, so as to relieve the bail from their responsibility, as such, for another joint defendant, ffawyer v. Bellinger, 1 [red., 475. If). Th i costs allowed against bail, notwithstanding a surren- der, &c, by the act, Rev. Code, eh. 11. sec. 19, do not include such ;is were incurred by the plaintiff, on account of an improper and he ffectual appeal by him. Clarkx. Latham, 8 Jones, 1. B AIL.— YIL-VIII.— BAILMENT. 120 WE. OF BAIL ON A WABRABT ISSUED BY A JUSTICE IN A CIVIL CASE. 1. An oral requisition, by a plaintiff in a warrant, to an officer to take bail, is sufficient to justify the officer in making an arrest and insisting on bail. But an officer is not by virtue of his office an agent of the plaintiff for exacting bail, and it may be doubted whether he can beome an agent for that purpose. Stale v. Kir- b)J, 4 lied., [)0. VIII. OP BAIL IN CRIMINAL CASKS. 1. A person convicted of manslaughter may be bailed, when the execution of the sentence is suspended. State v. Smith. Mar. 53, (50.) 2. A man indicted for murder cannot be bailed upon affidavits taken ex parte bv persons not authorized to take them. State v. Dew, 2 Hay., 12, (239.) S. C, Tay. 142, (83.) 3. After conviction for an offence not capital, the prisoner is not entitled to bail as a matter of right after an appeal to the supreme court; it is a question of sound discretion with the presiding judge of the court, whence the appeal is taken. State v. Ward, 2 Hawks, 443. (A person convicted of a misdemeanor is now entitled to bail after such appeal Rev. Code, ch. 35, sec. 12.) 4. Where, in a criminal case, in which., after conviction, the defendant has been sentenced to imprisonment, and appeals .merely for delay, without filing any exceptions or making any defence in point of law, the supreme court thinks this an abuse of the right of appeal, and that the superior court should not admit the convict to bail during the pendency of the appeal. State v. Daniel. 8 Ired., 21. (But see Rev. Code, ch. 35, sec. 12.) BAILMENT. 1. A bailee, who undertakes to do an act gratuitously, as to carry money, is bound to use ordinary care ami caution; if he lose the money entrusted to him, but does not lose hi- own, it is very strong evidence that he did nut use proper caution. Bland v. W&mack, 2 Murph., .'>7.">. 2. "When- a bailee undertakes to perform a gratuitous act, from which the bailor alone receives benefit, the bailee is only liable for gross neglect or fraud. But when the profession of 9 130 BAILMENT— I. the bailee implies skill, the want of such skill is imputable as gross neglect. Stanton'v. Bell, 2 Hawks, 145. 3. No length of possession by a bailee, as such, will bar the right of the bailor; and if the bailment be admitted, during the longest enjoyment, a title in the possessor cannot be presumed from the possession. Green v. Harris, 3 Ired., 210. 4. A bailee may turn his possession into a tortious and ad- verse one; but then there must be some demand or effort of the bailor to regain the possession, and a refusal or resistance on the part of the bailee, or some act must be done by the bailee chang- ing the nature of the possession. But the naked declaration of the bailee,, that he claimed tin 1 property in his own right, with- out any change of the possession, and without any demand or wish to resume the possession by the bailor, although such declaration lie public or made even to the bailor himself, will not instantly terminate the bailment and immediately convert the possession into an adverse one. Ibid. 5. Though a bailee in possession may maintain an action of detinue against mere wrong-doers, yet persons who claim under jihe will of the alleged bailor are not to be considered wrong- doers, against whom the bailee may on that account maintain this action againt them. Ibid. (>. If the owner of wheat or grapes send them to, another's mill or wine press, where they are converted into flour or wine, the act of the bailee does not alter the property in the converted articles; but it is otherwise if the act of conversion be done by a trespasser, for in such case the trespasser becomes the owner of the transformed articles, and he is liable to the owner in tres- pass or trover for their value. Worth v. Novtham, 4 Ired,, 102. 7. If, however, the articles are not so far changed by the tres- pass as to lose their identity, as they are not is: the case of cloths made into garments, leather into shoes, trees squared into tim- ber, and iron made into bars, they ma\ be reclaimed bythe orig- inal owner in their new and improved state. Ibid. 8. If a bailee misuses the thing bailed, an action on the case lies; if he refuse to deliver it when properly demanded by the bailor, an action of trover isthc remedy; but if tin; thing bailed lie destroyed bythe bailee, then, and then only, will trespass vi ft armis ilf bout* exporiatis lie. Setzar v. Butli r, 5 Ired., 212. S). In the cise of a bailment, the bare being t nisi ed. with another's goods is a sufficient consideration for the eng imi a\ if the bailee once enter upon the trust and take the goods into his possession. Ai where a man undertakes to collect notes for another, without mentioning any consideration, and, takes the notes lor thai purpose, there is a sufficient, legal consideration for, the engagement. Eobinson v. ThreadqiU, 13 Ired.. 39. 10. The rule that a bailee shall not be heard to deny the title of his, bailor, before surrendering the possession, does not apply BAILMENT. 131 where the bailee claims under a deed in trust, made after the bailment by the bailor for his benefit. Burnett v. Fulton, 3 Jones, 48G. 11. If the hirer of a slave put him to work at blasting rocks in the night time, when it is so dark that he cannot see the falling stones, it will not be taking reasonable care of him. But if a hired slave, of his own accord and without the knowledge or consent of the hirer, and against his directions, take the place of one of the regular blasting hands in the twilight of the evening, when his presence cannot easily be discovered, and is killed by a falling stone, the hirer will not be responsible for the loss. Couch v. Jones, 4 Jones, 402. 12. Where the hirer of a slave permitted him to go home to see his master, who was alleged to be sick, from the town of Plymouth to the county of Currituck, across the Albemarle Sound, and he availed himself of the occasion to escape out of the State, so that he could not be recovered, it was held, that though tin- distance the slave had to go was eighty miles and across the Sound, yet as all the route was within the State, the hirer was not guilty of such negligence as to make him liable for the loss of the slave. Woodhouse v. McRae, 5 Jones, 1. 13. Where a bailee, Whotook cotton to store and keep for hire, permitted it to remain with the roping oft, the bagging turn, the cotton loose and the under bales in the mud and water, so as to become stained, and much of it destroyed; it was held to be a want of ordinary i arc, which made the bailee liable for the damage to the article. Morelhead v. Brown, 6 Jones, 367. 14. In a question of diligence and ordinary care in the storing and keeping of cotton in bales, it is competent to prove the cus- tom of the place, as to the manner of storing and keeping that article there. Ibid. 15. Where a person is in possession of the property of a feme, and it is alleged thart: he held it as her bailee, the bailment must be established by satisfactory proof, otherwise the usual and natural presumption will be that lie holds for his own use. His want of title will not justify the implication of a bailment. Smith v. Reid, 6 Jones, 494. 1(3. Where a father gave certain slaves by deed to his daugh- ter, who was an infant and so remained until alter her marriage, but he retained them in his possession, denying the efficacy of the deed, and claiming to hoi, I them as his own. his saying at the e Line time that they were, or would he his daughter's, is not sufficienl evidence that beheld the slaves as her bailee. Ibid. 17. The rule that one, wrongfully holding the property of an infant, may be considered as the guardian or bailee of the infant, is for the lit 1 ' i'- benefit, and for the furtherance of his remedy, but thi has no right to set it up for his own b against the infant owner. Ibid. 132 BAILMENT.— BANKRUPT. 18. Where the defendant borrowed a horse of the plaintiff and put him into a lot which had been used for such purpose many years, and the horse, being nearly blind, and the weather wet, and the lot somewhat slanting, slipped and fell upon a stump and thereby broke his thigh ; it was held, that there was such negli- gence shown as to render the defendant liable for the loss. Furl a ik' v. I/arris, fi Jones, 532. See (Estoppel — By matter other than by record or deed, 4-5- 8-11-27.) (Tenant's in common, 24.) BANKRUPT. 1. The bankrupt law of Scotland cannot affect any goods, estate or debts due to the bankrupt here; and, therefore, they may be attached here by a creditor under our attachment law. McNeil v. Colquohoon, 2 Hay., 24, (179.) 2. Under the bankrupt, law of the United States, (passed in 1800 and expired in 1806,) the commission and assignment con- stitute proof of the trading, bankruptcy, the time thereof and appointment of the assignees. Barclay v. Carson, 2 Haw, 243, (430.) 3. The assignees of a bankrupt partner may recover a moiety of the debt due, when there is no plea in abatement. Hid. 4. A demand against the bankrupt, which the defendant has acquired since the bankruptcy, cannot, by the express words of the statute, be set off against a claim of the assignees. Ibid. 5. Under the United States bankrupt law of L 800, the arrest, and imprisonment of the debtor an bi :' aec ssary to constitute an act of bankruptcy, which act is not complete until the time of imprisonment prescribed by law is completed. Ni Pwjh, 1 Murph., 149. II. The court has do pow< r to establish any other act as one of bankruptcy, than that on which the commission issued, Ibid. 7. Under the bankrupt law of 1841, a voluntary applicant i'nr its benefits cannot be discharged from an arrest under a ca. so. issuing on a judgment of a State court, until he is declared a bankrupt by a decree of the district court, inwhich his applica- tion was filed. Exparte Zkgenfuss, 2 [red., 463. 8. Before a decree of bankruptcy, a debtor, applying volun- tarily for the benefits of the bankrupt law, cannot be protected from arrest on a writ issuing from any court, whether State or Federal; but after such decree he will be protected against the process of every court, because then his property is taken from BANKRUPT. 133 'him to be applied, under the provisions of the bankrupt act, to the pro rata payment of all his creditors, and as the law has taken his property it will protect his person. Ihid. 9. The provision in the bankrupt law of 1840, which prevents a debtor from being discharged under a commission of bank- ruptcy where the debt is of a fiduciary character, extends only to special trusts, but does not extend to implied trusts, such as those of agents, factors, &c. WiUiamsonv. Dickens, 5 Ired., 259. 10. When a creditor has a claim which he might enforce, either by an action of assumsit or in fort, if he sue in tort his action "will not be barred by a discharge under the bankrupt law; and in every such case, the form of the action brought is decisive of the question, whether the discharge is a good bar or not. Ibid. 11. The creditor is not barred by this discharge, where. although he might have proved his claim under th% commission, he is not bound, to do so. Ibid. 12. To avoid a plea of a discharge, under the bankrupt law, the plaintiff must show not merely a mistake or omission in making the inventory on the petition of the bankrupt, but a fraudulent and willful concealment. Sanders v. Smallwood, 8 Ired., 12.3. 13. Upon a case agreed on such plea, the court cannot give a judgment for the plaintiff, unless the case states in terms a willful c mcealment, or unless such willful concealment necessarily results from the facts stated. Ibid. 14. Where a marriage settlement had been made on a wife, and the husband afterwards obtained a certificate of bankruptcy and did not inventory the property so secured, and where it appeared also, that the marriage settlement had not been prop- erly registered, and was therefore void against creditors, but it did not appear that the husband knew of this defect in the regis- tration, or, if lie did, was aware of its operation in law, it was held that he could not, by the court, be declared to have been guilty of a fraudulent concealment in regard to such property; Ibid. If). As a certificate of bankruptcy may be pleaded in all courts, it mav be impleaded for fraud in any court. State v. BetJiune, 8 Ired., 139. -16. It is not every omission of property in the schedule of a bankrupt, that invalidates the decree of discharge, but only a fraudulent conveyance or willful concealment of it. Ibid. 17. Where a debtor has been discharged under the bankrupt law. a surety, who might have come in under the commission, cannot afterwards recover from the debtor. Consequently where the surety appointed the debtor his executor, the residuary lega- tees of the surety cannot make the executor accountable for the debt. Tvbbs v. 'Williams. 9 Ired., 1. 134 BANKRUPT.— BASTARDY.— I. 18. A discharge in bankruptcy, of the principal debtor in a bond or note, does not release his surety. Jones v. Hagler, 15 Jones, 542. BASTARDY. 1. Proceedings in bastardy cases. I III. Concealing tie birth of a bastard II. Of legitimating bastard children. child. • 1. PROCEEDINGS IN BASTAKDI/V CASES. 1. The recognizance on a charge of bastardy, to appear at the county court, must be taken hefore two justices. State v. ijnin- nery, lay, 33, (25.) (One justice is now sufficient. See Bev. Code, ch. 12, sec. L) i. Under the act of 1741, a married w^oman may, upon oath, accuse a man of being the fesfber of a bastard child, 1 egotten and born before her marriage, and the man thus accused shall be charged with the maintenance of the child, as it she were a single woman. WHMev. West, 1 Murph, 319. (See Bev. Code, ch. 12, sec. 1.) 3. A white man, charged as the putative father of a bastard child, is at liberty to show that the mother of the child is of mixed blood, and within the fourth degree, and therefore ex- cluded from swearing against him. State v. Burrow, 3 Murph,, 121. 4. The county court cannot charge a man with the mainte- nance of a bastard, when it appears to them that the magis- trates, who took the examination of the woman, have proceeded against law in the judgment they have given. Hid. 5. Under the act of 1741, a man may be charged with a bast. ard, begotten on another's wife; and although she cannot be admitted to prove the non-access of her husband, she may, from necessity, ho examined to prove her criminal intercourse with another; and, if it appear by reason of her husband's imbecility or absence, that he could not have been the father of her child, it shall be adjudged a bastard. State v. Pettaway, 3 Hawks, 623. 6. The act of 1790, which authorizes a summary remedy against the reputed father of a bastard child, is not a repeal of the common law right of suing all or either ol the obligors on tlie bastardy bond; and, in a suit on such bond, the notice re. quired by that act need not be shown. Shaw v. Steicart, 1 Dev. and Bat, 412. (See Bev. Code, ch. 12, see. 7.) BASTARDY.— I 135 7. The summary remedy prescribed by this act is only cumu- lative, and applies only as against the reputed father, and not against his sureties on the bastardj bond. Ibid. 8. A defect in the examination of a single woman, as to the putative father of her bastard child, is waived, so as to prevent She proceedings from being dismissed, if the person charged ap- pear and mane up an issue to try whether he be the father or not. Sinlr v. Carsdh, 2 Dev. and Eat. 368. 9. Orders before justices in bastardy cases being -matters of police only, are mure favorably construed than these, which are criminal in their nature. Ibid. 10. A payment to ;> mother, made by the reputed father of a bastard child, in full satisfaction for the maintenance of the child, may, if made before any order for that purpose, very properlv influence the court in saying what further sum lie shall pay, if it shall happen that the child is supported by him but it cer- tainly cannot operati as a liar to the power of tile court to make whatever order in the premises the maintenance of the child, or a just compensation to the person, who may have maintained th-e child, may require. Slatev. Harsliaw, 4 Dev. and Bat., 371. 11. In bastardy cases, an examination of the woman, which does not appear to have been taken within three years from the birth of the child, is defective and may be quashed; but the de- fect is nut necessarily fatal, and all objection on that account is waived, if not made in the regular mode, and at the proper time. The objection should be made before an issue of bastardy is tendered; and if nut then made, the examination, notwithstand- ing such defect, will be evidence on the trial -of the issue, as to the truth of the charge. State v. Robeson, 2 Ired., 4(3. 12. In proceedings to charge the reputed father of a bastard child, the examination of the mother before the justice must appear, on the face of the proceedings, to have been taken with- in three years from the birth of the child; otherwise they should lie quashed. State v. Ledbetter, 4 Ired., 242. S. P., State v. Led* better, 4 Ired., 245. 13. If the county court, on motion, refuse to quash the pro- ceedings, the party may either appeal to, or obtain a certiorari from, the superior court. Ibid. 14. Where the defect, for which it is moved to quash the pro- ceedings, may, consistently with the truth, lie supplied at the instance of the State, it is competent to allow the necessary amendment. Ibid. 15. The examination of a woman before justices, charging a man with being the father of her bastard child, need not be signed by her. And when such examination was not signed by the justices, but the warrant issued by them was on the same paper, and connected with it, it was held, that this was a suffi- 'i !" ii ic -lien of the examination, though it would have 136 BASTAEDY.— I. been more proper if the examination bad been signed by the woman and attested by the justices. State v. Thompson, 4 Ired.,, 484. 16. On the trial of an issue of bastardy, the examination of the mother having been made by act of assembly prima facie evidence, the defendant can only introduce evidence to show that lie is not guilty. He cannot attack the credibility of the woman ; nor can he show at the trial that she was an incompe- tent witness at the time of her examination before the justices, as that she was a colored woman, or had previously been con- victed of some infamous offence, which disqualified her from taking an oath. State v. Patton, 5 Ired., 180. (The examination of the woman is now made only presumptive evidence, which may be rebutted. See Eev. Codej ch. 12, sec. 4.) 17. If the reputed father wish to avail himself of the defence above specified, he must do so on a motion to quash the order of filiation, as being founded on incompetent evidence. And if the woman after her examination became incompetent, this sub- sequent disability will have no other effect than to exclude her from being a witness before the jury. Ibid. 18. Where a woman has been examined on oath under the bastardy act before two justices, and one of them omits to sign the examination, the court, to which the proceedings are returned may permit the justice then to sign the examination. State v. Thomas, 5 Ired., 366. 19. In a case of bastardy, after the defendant has had an issue tried under the statute, and the verdict is against him, it is too late for him to move to quash the proceedings, because the mother of the child, who was examined before justices on oath, was a woman of color. State v. Lee, 7 Ired. 265. 20. One who appears at court, to answer the charge of being the lather of the child about to be born a bastard, may, before an issue is made up, move to quash the proceedings, on the ground that the mother is a woman of color within the fourth degree. And if, upon such motion, the proceedings be qiiashed by the court, a subsequent warrant charging the same person with being the father, issued atter the birth of the child, cannot be supported. Slate v. Long, 9 Ired., 488. 21. The proper relief against the order to quash, if it were deemed erroneous, was by appeal or certiorari. Ibid. 22. On the trial of an issue, under the act, Eev. Stat., ch. 12,. sec. 4, the examination of the woman becomes full proof of the fact of paternity, and the jury is bound so to find, unless the defendant shall show the fact not to be so, and this he can do, only by proof of impotence, or non access at such time, as by the law of nature he could be the father; and, therefore, evi- dence to show the improbability of his being the father is inad- missible. State v. Goode, 10 Ired., 49. (The examination of the BASTARDY.— I. 137 woman is now only presumptive evidence of paternity. See Rev. Code, eh. 12, sec. 4.) 23. Upon the trial, in a bastardy case, of an issue, whether the defendant is the farther of the child charged to him, it is incompetent to introduce any testimony to show that the child was not a bastard. The adjudication of that question belongs to the justices, before whom the oath of the woman is made, ami if they decide against him upon that question, lie has a right to bring it up by a certiorari. State v. Wilson, 10 Ired., 131. 24. Where a single woman became pregnant in the county of Brunswick, where she had always resided, and went to Xew Hanover where she was delivered of the child, and then returned with the child to Brunswick; it teas held, that the justices of Brunswick had the jurisdiction under the bastardy act, to insti- tute proceedings to subject the reputed father to the maintenance of the child. State v. Roberts, 10 Ired., 350. 25. A free person of color is chargeable with the support of a bastard 79. See (Jurisdiction — Of the county and superior courts, 31.) BASTAEDY.— II.-IIL— BATTERY, &C. lgfl M. OF LEGITIMATING BASTARD CHILDREN. 1. Where the putative father procured an act, changing the name of the child to his own, and declaring him "forever here- . after to be legitimated and made capable to possess, inherit and enjoy by descent, &c, any estate, real or personal, to all intents and purposes as if had been born in lawful wedlock." it was held, that as the bastard was not made', legitimate as to any particular person, the only effect of the act was to change his name. Brake v. BroW, 1 Dev, 110. ; 2. An act legitimating a bastard, as to his putative father, does not render the collaterals of the latter capable of succeeding to the former. Ibid. 3. The judgment of either the county or superior .court, upon the subject of the legitimation of a bastard child, is conclusive so that it cannot be impeached collaterally. Craige v. Neely, h' Joins. 170. 4. The act of 1^38, eh../£, concerning the legitimation of bas- tard children, did not repeal the former act on the subject, Rev. Stat., eh. 12, sec. 8. So, it was held, that a married man. notwith- standing such act, could have had his child legitimated if the mother had left the State. Ibid. (The law is now altered so that a man, who was married at the time of the birth" of his ille- ffitimate child, cannot, under any circumstances have him or her egitimated. See Rev. Code, ch. 12, sec. 8.) 5. A private act of the Legislature is in the nature of an assurance at common law, and must depend upon the consentof persons in esse, whose property is to, be affected by it. Hence, such an act, declaring a bastard to be legitimated, and to be the their and next of kin of a particular person, gives him a right .-to claim from such person only. Lee v. ShanMe, 6 Jones, 313. See (Act of Assembly, 7.) ■III. CONCEALING THE BIRTH OF A BASTARD CHILD. See (Indictment. — When an indictment will lie, 22 .]} BATTERY. S( e (Assault and Battery.) BAWDY IIOl SE. See (Indictment — When an indictment will lie, 60-70.) 140 BENEFIT OF CLERGY, &c. r BENEFIT OF CLERGY. See (Indictment- — Of the trial, verdict and judgment. 10-18— 31-62-66-67,) (Pardon, 6.) BEQUEST. See (Devise) (Legacy.) BIGAMY. See (Indictment — Form and matters relating thereto, 62, 146.) BILLS OF EXCHANGE AND PROM- ISSORY NOTES. I. What is a bill or note. II. Of the consideration of a note or of endorsement. III. What notes are negotiable under the statute. IYS Of their endorsement and transfer. V. Of a demand. VI. Days of grace. VII. Notice of non-acceptance and non- payment. VIII. Remedy on a bill ornote — Declar- ation, pleading and evidence IX. Liability of parties, and how dis" charged. X Effect of a bill or note, when taken for goods sold or for a precedent debt. XI. Damages. I. WHAT IS A BTLL OR NOTE. 1. A due bill, though written with a pencil and not in ink, if legible, is a good promissory note. Gudqer v. Fletcher, 7, Ired.,. 372. BILLS OF EXCHANGE, &c— II.-Ht. 141. II. OF THE CONSIDERATION OF A NOTE OR OF ENDORSEMENT. 1. Although notes and endorsements, as simple contracts, require a consideration, yet it has been long settled that prima facie they imply a consideration, so as to throw the onus on the other side to show the want of it. McArthur v. McLeod, f> Jones, 47.">. See (Apprentice 14.) III. WHAT NOTES ARE NEGOTIABLE UNDER THE STATCTE. 1. A note for £100, payable in tobacco, is not negotiable. Hodges v. Clinton, -Mar. 76, (79,) S. P. TindaU v. Johnston, 1 Hav. 372,(428,) Thompson v. Gaylord, 2 Hay. 150, (326,) JVoffordv. Greenlee] L'onf. Rep. 79, (212.) (Sec Rev. Code, ch. 13, sec. 1.) 2. A bond payable partly in money and partly in specific arti- cles is not negotiable under the statute. Jamieson v. Farr, 1 Hay., 182, (210.) 3. A bond, upon which an endorsement was made at the time it was executed, purporting that it might be discharged by the payment of so much tobacco, is net negotiable. CampbeUv. Mwm/ord, 1 Hay., 398, (459.) 4. The act of 1786, making bonds assignable, did nut operate upon bonds theretofore made. WHJcinson v. Wright, Govi. Rep.. 341, (422,) S. C. Tay. 227, (103.) (See Rev. ( lode, ch. 13, sec. 1.) 5. A bill or note, the payment of which depends upon a con- tingency, is not negotiable. Buta note in these words "against the 25th Dec, 1819, or when the house .1. M. has undertaken for me is completed, I promise to pay, &c," is net upon a con- tingency, because it is payable at all events by a particular time. Goodloe \. Taylor, 3 Hawks, 45s. 6. Promissory notes, made and payable out oi this State, are within the acts oi 1762 and 1757. 11. A bond or sealed note, made payable to A B, or bearer. cannot pass unless delivered to tlie obligee, and then endorsed by him under the statute, Rev. Code, ch. 13, see. 1. Gregory v. Dossier, 'i -bines, 4. See (Justices of the Peace — Of their jurisdiction, judgment and execution, 92.) IV. OF THIS ENDORSEMENT AND TRANSFER. 1. A negotiable note being in the possession of the assignor is evidence that he has paid the assignee for it; and he may erase the endorsement, and sue in his own name. Dock v. Cas- well, 1 Hay., 18, (24,) S. P. Smith v. St. Lawrence, Ibid, 174, (200,) Strong v. Spear, Ibid, 214. (244.) 2. The negotial >ility of a. bill or note maybe restrained by s] leeial words in the bill or note itself, or in the endorsement. Smith v. St. Lawrence, 1 Hay., 174, (200.) 3. If a negotiable paper be assigned at or before il is due, and no paymi n1 is endorsed, the assignee will hold it discharged of all payments that may have been made previous to the assign- ment; but if the paper be assigned after it is due, then all such payments, of which it might be reasonably presumed the assignee had notice^ shall be good against him. Black v. Bird, 1 Hay, 273, (315.) 4. If one of two joint payees of a note endorse on it, that he has transferred all Ids interest to the other, thai other may main tain an action in his own name tor the whole debt. Sna d v. Mitchell 1 Hay., 289, (334) 5. Where unnegotiable papers are passed from a debtor to his creditor, the latter, il seems, is not liable for any loss in the col- lection of them, unless it can be shown that the loss was caused by the □ ol the creditor. Broicn v. ('run/, 1 Hay. 318, (436,) S. P. Alston v. Taylor, Ibid381, (439.) 6. I'h' .i i ;nment of bonds, mad' in Virginia ami assignable by the li vs of that State but not a,- ignable by our laws, must be subject to our laws, when the assignment is made in this State. ' Alston v. Taylor, 1 Hay., 381s (439.) 7. If an endorsement state that the endorser will be liable in case the maker prove insolvent, lie is not liable upon proof that tlie maker hi s taken the benefit of the prison bounds. Camp- bells. Leach, 2 Hay.. 233, (113.) 8. Two p irtners may draw a note payable to one of them, and BILLS OF EXCHANGE, &c— I\ . 143 rlii- assignment by him Tsall lie good. Elalcev. Wheatoit, Tar. 70. (49,) S. C, 2 Hay., 109, (267.) 9. .\ ii endorsement in full on a negotiable instrument may be struck out in the trial. Dickinson v. Van Nooden, 1 Car. L. R. 4 l J7, (109.) 10. An executor may assign the negotiable note of his tes- tator, without naming himself executor. Neil v. Neicberh, 1 Murph.. L33. 11. If the payee of a bill of exchange write on it, "sent to W. D., Esq , to collect" for him, the payee, it is a sufficient endorsement to enable W. D. to collect it by suit in own name. Dnii' v. Jacocks, 2 Murph., 138. 12. When a note was eudorsed "pay the contents to W. or his order, for value received, with recourse to me at any time here- after without further notice-,' it was held that a cause of action accrual against the endorser, without notice, from the return of an execution against the drawer by which nothing wis made; but that the terms of the endorsement did not render the' endorser liable at any indefinite period of time. Wister v. Tate, 2 Car. L. R.-602, (404.) 13. If two persons endorse a note, in virtue of a mutual understanding with each other, to lend their names for the accommodation of the maker, evidence may be left to the jury of such agr iement, and from this a mutual liability will arise. Love v. JVaU, 1 Hawks, 313. 14. An endorsement on a bank note signifies nothing in itself, in the way of a contract. Anderson v. itawkins, 3 Hawks. 568. 15. A oonafide holder of a bill or promissory note, in which the name of the payee has not been inserted, has a right to fill up the blank left for the payee's name with that of an endorser; and he may subject the endorser upon a count for his en lorsej merit, or as the drawer of a new bill. Lawrence v. Mabry, 2 Dev., 47;i. 16. Where A and B were eridon .-rs oi a bill drawn for the accommodation of C, and A being the first endorser paid the bill and received the note of C, endorsed by B, for one-half the amount, it was held, that this note was not given for the accom- modation of A, and that lie might recover on B's endorsement Hatcher v. McMorine, 3 Lev.. 228. 17. A bmid payable on demand, which is assigned eight years after its execution, is dishonored, and liable in the hands of the assignee 1 i all the defences which the obligor had against it; but these defences, in order to In.- available at law, must be legal defem ood v. McNair, 3 Dev., 231. 18. Where a> ithing is said or done inconsistent with that infer- ence, if two pi rsi ms put their names on a paper, for the ac dation of a third, the}' are co-securities, and are liable without 144 BILLS OF EXCHANGE, &c— IV, respect to the apparent legal liabilities arising from the order of their names. Hence, where A procured the endorsement of B, and afterwards of C, upon a note, which he intended to get dis- counted at bank, it was held that B and C were to be taken as ■co-securities, although, by agreement between A and B, the lat- ter was to have part of the proceeds of the note discounted, for which he was to give A his own separate bond, and that agree- ment was not made known to C at the time of his endorsement. Richards v. Simnm, 1 Dev. and Bat,, 48. 19. An assignee of a promissory note, or single I >< mil, who takes it after it is due, is bound by any defence which existed against it and would be available, if the action were brought in the name of the assignor; and this rule is not confined to de- fences affecting the note or bond transaction itself; but extends to a distinct and independent set off. Haywood v. McNair, 2 Dev. and Bat. 283. 20. An endorsement of a note to a bona fide endorsee, made by the payee in a fictitious name, in which it was made to him, is valid, although the name was assumed for a fraudulent pur- prase. Elliott v. Smitherman, 2 Dev. and Bat, 338. 21. The act of 1827, making the endorsers of negotiable notes liable as sureties, applies in those cases only, where not only the endorsement in question, but the antecedent endorsements, (not expressed to be without recourse,) have been made within this State. IngersoUv, Long, 4 Dev. and Bat., 293. (See Rev. Code, oh. 13, sea 10. 22. The object of this act was not to bind the endorsor, as though he had signed the note with the maker as surety, nor to make him liable to the endorsee if the endorsement were made without consideration, nor to deprive him of the protection which the statute of limitations had extended to endorsers, but simply to change the engagement, which the law theretofore Implied from an endorsement, not expressed to be without re- cours i, into an engagement to pay the note at all events, if the maker did not pay it. Ibid. 23. To make an endorsement of a bill special or in full, it must direct payment to be made to some particular person, firm or corporation. French v. Barney, 1 Ired., 219. 24. A bill, once endorsed in blank, becomes payable to bearer, agai ' the acceptor, drawerand all prior endorsers. Il»',l. 25. A blank endorsement, by the payee of a billornote, is an authority to a bona fide holder to till it up at any time, as by an indorsement to himself, or to any other person, or to bearer, and if not filled up, is now considered as making the bill payable to bearer. Hubbard v. Williamson, I [red.. 266; 2li. l'>ut where there is a first and second endorser in blank, the holder of the bill cannot support an action against them jointly, without tilling up the endorsement of the first endorser, BILLS Of EXCHANGE, &c— IV. 145 80 as to show an authority in the second endorser to give a title to the plaintiff as holder. This endorsement may be filled up as a matter of course on the trial; but, if not done, the plaintiff must be nonsuited. Ibid, 27. Where a bond is payable to A, or to A or order, the legal interest in it can only be transferred by endorsement. Fairly v. McLean, 11 Ired., 158. 28. An assignment of a promissory note, to enable the as- singnee to sue thereon, must be made by the payee, and must be for the whole, and not for a part only of the sum mentioned in the note. Martin v. Hayes, Busb., 423. 29. The endorsement of a note in blank by a person, before the payee endorses it, is made regular by the endorsement of the payee, and the endorsement may be filled up as to both endorsers on the trial in the superior court, even after an appeal from the county court, the trial being de, novo in the superior court. Johnson v. Hooker, 2 Jones, 29. 30. Where a third person pays the sum called for in a promis- sory note and takes it into his possession, it may be a question of fact to be submitted to the jury upon the testimony, whether he intended to pay it off for the accommodation of the maker, or to purchase it, so as to enable him to sue all the parties on it. Runyon v. Chirk 4 Jones, 52. 31. An administrator, duly appointed in another State, can any where endorse a negotiable paper, belonging to the assets within bis jurisdiction at the intestate's death, so as to enable the endorsee to sue in this State. Grace v. Hannah, b' Jones, 94. 32. A sealed note or bond given in this State, not payable at any particular place out of the State, may be endorsed in another State, so as to support an action here, although there may be no statute law in such State, making bonds negotiable. Ibid. 33. A bond given in another State, where there is no statute making bonds negotiable, may be endorsed here or any where else, where bonds are negotiable, and the endorsee can sue in this State, Ibid. 34. It is no objection to the endorsement of a sealed note, that the presumption of payment, from lapse of time, was applicable to it win n the endorsement was made. McLean v. McDuuald, 8 Jones. 383. 35 An endorsement of a negotiable bond by the obligee in the following terms, "A B, for sixty days, 19th Nov., 1858," imposes no ooligation on tin' endorser after the expiration of the limited time. Johnson v. Olive, 1 Winst., 215. Sru (Contract — (if the construction of contracts and when an action will lie, 7;) (Executors ami Administrators — Letters tes- tamentoiy and letters of administration, 16.) 10 146 BILLS OF EXCHANGE, &c— \ '.. T. OF A DEMAND. 1. A note payable at the Bank of Gape Fear must be deraandfl at the bank, in' order to render the endorser liable. Sullivan t Mitchell, 1 Car. L. E. 482, (93.) 2. Whenever a bill or note is made payable at a partiouk place, a demand at such place is sufficient, and a personal one not necessary, whether the maker live at the same place or at different one. Ibid. 3. A personal demand in ordinary cases is not necessary; it sufficient if made at the house, but if the house be shut and tl maker has gone away, some endeavor must be made to hud hi out. Ibid. -li-i 4. If, in ordinary cases, the maker has become insolvent, In absconded, or refuses to make payment, this will be sufficient 1 charge the endorser upon due notice of the fact. Ibid. . 5. Where a note was made payable at the State Bank, it mu be presented there when it falls' due, otherwise the endorse^ discharged; and that even though the maker of the noted pense with such presentation. Smith v. McLean, N. C. Lefl R, 72, (509.) . . . 6 Where the maker of a note was a physician, na and dwelling house- in different parts of the town and when t endorser, on the note becoming due, informed the holder tl the maker was fifty miles out of town and would pay on | return, it was held, that a demand at the shop was sufficient, wil out the making of one at the dwelling house also. Field* Mallei 7, 3 Hawks, 465. . 7 Where the maker o£ a promissory no unan, nm out any domicil in the State, who goes on a voyage about t time the note falls due, no demand on him is necessary in ore to charge the endorser. Moorev. Coffield, 1 Dev., 247. 8 There is no precise time in which a note payable is to be deemed dishonored; but it must depend on the circj stances of the case. Elliot v. Smitherman, 2 ! >ev. and Bat,J 9 [nan action against the endorser oi a promissory note bond, since the act of 1827 making endorsers oi promisi notes sureties, it is unnecessary testate m the declaration prove on the trial, any demand on the maker oi tn< note obligor in the bond, and notice of non-payment to the endoj WiMams v. Irwin, £ Dev. and Bat 74, S. P. Dhmulvs v. )\ ru 3 Dev. and Bat., 78. (See Rev. Code, ch. 13, sec. 10.) I 10. However it may be, as to notes payable on demand, whet or not they are considered as overdue until demand made, i certain that a note, payable "at sight," or "when presented, not due until it is presented. Ormond v. Moi/e, 11 Lred., DJ 11 The maker of a promissory note, made payable on aem at a particular place, is not bound to pay it until i1 is preset BILLS OF EXCHANGE, &c— V.-VI.-VII. 14V -T the place where it is expressed to be payable. And there is no ground for a distinction upon this point, between notes made payable by a natural person and those made by a corporation. Nor can such be used as a set off or offered as a payment to the maker, unless so presented. The Bank of the State v. The Bank of Cape Fear, 13 lred., 75. 12. If a, note lie payable at a particular time and place, a de- mand at such time and place nei d not be averred and proved, in ■an action by the holder against the maker; but a failure to make such demand may be used as a defence if the money were ready at the time and place. Nichols v. Pool, 2 Jones, 23. 13. The act of 1*27, Rev. Stat., oh. 13, sec. 11, makes an endorser liable to the holder of a note in the. same way that the maker is liable; and when the note is payable at a particular time and place, the demand at such time and place need not be averred cmdprovek, in an Action by the holder against such endor- ser, but a failure to make such demand may be used as a defence, if tli>_' money were ready at the time and place. Johnsonv. Hooker, 2 Jones, 2!). (Sec Rev. rode, eh. 13, sec. 10.) 14. Where the protest of a notary public stated that he pre- sented a bill, which purported to be drawn on a firm, to \. one of the members thereof it was held to be e\ idence shat \ member of that linn and that the presentment was prorperly made. Elliott v White, 6 .'ones, 98. See (Interest 7.) TO. PAYS OF GRACE. 1. Lars .if grace are not to be allowed, as between the origi- nal parties to a sealed note, notwithstanding^ has been made negotiable, by statute. Jarvis v. McMain, 3 Hawks, In 2. A scaled note is not entitled to days of grace as between endorsee and endorser. Fields v. MaUett, 3 Hawks, 465. T. NOTICE OF NON-ACCEPTANCE AND NON-PAYMENT. 1. Notice need not lie given to the drawer of a bill, if he have no effects in the- hands of the drawee. v Stanton 1 Dev., 271, (312.) ' 2. The receipt of part of the money from the drawee, does not discharge the drawer; and as to the residue, notice isonl;) neces- sary, when it would have been so, if the whole had been 'unpaid Ibid, 271. L 3. Hie endorsee of a . bill of exchange must make due present- ment of tin- bill for acceptance and. then tor payment, and if if lie not accepted, or not-.paid, he must give due notice :' reof to the endorser. The endorsee cannot support an action, unless he perform all parts of this undertaking; he must prove the giving 148 BILLS OF EXCHANGE, &c— VII. of notice, or, in case of the non-acceptance of a bill, prove that there were no effects of the drawer in the drawee's hands; that is if he mean to resort to the drawer. But this proof in excuse of not giving notice eaa only apply to the case ot a bill of ex- change not accepted; it does not apply to the case oi a bill ot ex- change accepted, nor to a promissory note. It the maker ot the note be insolvent, the endorsee must still give notice to the en- dorser. Pans Y.Kelly, 2 Hay, 45, (204.) S. P. Plnmmer v. Christmas, Ibid, 107, (265.) S. C Tay. (57, (46.) (Endorsers of negotiable notes are now made liable as sureties, and no no- tice need be given to them. Ptev. Code, ch. 13, sec. 10.) 4 As to what shall be deemed sufficient notice, the endorser must have notice from the endorsee, that he cannot obtain pay- ment, and that he looks to him for it, Ibid. 5 The party shall give notice as soon as he conveniently may, all circumstances considered, the court to decide what is reason- 6 What shal'be deemed reasonable notice to the endorser, of non-payment by the maker, must depend on the local situation, and the respective occupation and pursuits of the parties. Where they lived in the same town, a delay from the 10th Nov. to the 26th Jan, was deemed too' long for the giving of such notice. Londonv. Howard, 2 Hay,, 302, <49i ( ) and 332, (506.) 7 Notice to an endorser of the non-payment .ot a note should he given by the holder, or by some person authorized by him. It should also intimate to the endorser, that he is looked to for payment. Brower v. Wboten, N. C. Term, R, 70, (507.) 8. Whenever a person endorses a note for the accommodation of the maker, he is entitled to notice of non-payment Smith v. McLean, N. C, Term, E. 72, '(509.) 9 An endorser is entitled to reasonable notice of the non-pay mentof a note by the maker; but, if after such a lapse of time, as would have exonerated him, he make a promise to pay, with full knowledge that by law he is not liable, it amounts to? waiver of a want of notice. Gardiner v. Jones, 2 Murph., 429 10 A notice of the non-payment by the drawer, of a no« made negotiable and payable at a bank in a certain town, is noj sufficient, if not given to the endorser liVing m the same tow* until six days afterwards. State Bank v. Smith, 3 Mmrph, 70. 11 The drawer of a bill is entitled to notice of its dishonor; though the drawee be not indebted to him, either when the bil was drawn or fell due, provided the drawer had reasonably ground to believe that it would be honored; and a written an thority from the drawee to the drawer is a sufficient ground Austin v. Rodman, 1 Hawks, 194 ■■ . >i 12 If a bili be payable after sight, it must be presented with in reasonable time for acceptance, and immediate notice of nor acceptance given to the drawer; and it is not sufficient to giv BILLS OF EXCHANGE, &c— VII. 149 notice of non-acceptance and non-payment together, after the day of payment has passed. If in such case the drawer be dis- charged, by the laches of the holder, from his liability on the bill itself, he will not be liable on a count for money had and re- ceived. Ibid. 13. A demand of the maker of the note, and notice of non- payment given to the endorser, in a reasonable time, are neces- sary to charge the endorser; and this reasonable time must de- pend on circumstances. Four months delay, where the parties all live in the same town, is unreasonable. Yancij v. Litllejohn, 2 Hawks, 525. 14. The notice from an endorsee to an endorser is good, if it be sufficient to put him upon enquiry ; it may be oral or in writing, it may be read from a memorandum or letter, either written or printed, signed or unsigned, bearing the name of any Mie or no one, for the person giving the notice adopts it as his own ; and any person, through whose hands a bill or note has passed, may give notice to the drawer, or a prior endorser, of the dishonor of a bill, although it may not have been by him at that time taken up, and such notice may be given without his having then iii his hands the protest ; it is sufficient (if a protest be ne- 3essary in the case,) that there is one in fact. Bank of Cape Fear v. Seawell, 2 Hawks, J)60. 15. A notice to a distant endorser joust ordinarily be sent to his nearest post office, but this rule may be dispensed with when it is shown to have been sent to the place where he would get the earliest intelligence. Bank of the United States v. Lane-, 3 [lawks, 453. 16. The rule as to notice to endorsers varies with the pursuits if the parties, the same strictness not being required between farmers living in the country as between merchants in towns; ind in the first case, what is clue diligence must be left to the ury under the direction of the court. Brown v. Johnson, 1 Dev., 203. 17. The contents of a letter, directed to an endorser or drawer i>f a bill of exchange, at his residence, giving him notice of its dishonor, may be proved by parol without notice to produce the ftriginal. Faribault v. El;/, 2 Dev., 67. 18. What is reasonable notice to an endorser depends on the local situation and respective occupation and pursuits of the parties, and is to be judged of by the court. And where the parties resided thirty miles apart, the lapse of forty-seven days, from the time of the endorsement to the service of notice on the endorser, was hald too long. Johnston v. McGinn, 4 Dev., 277. 19. Notice 1 iv the holder, to the drawer of a bill of exchange, of a. demand on the drawee and a protest for non-acceptance or non- Eayment, is not necessary, when the drawer had no funds in the yiu.ls pf i]u- drawl;-. unleBS t]ic drawer had reasonable grounds 150 BILLS OF EXCHANGE, Ac— VII. to believe that his bill would be honored. Spear v. Atkinson, i ' Ired., 262. 20. Notice of the dishonor of a bill is required to enable the drawer or endorser to withdraw his effects from the drawee. Ibid. 21. Protest of an order, or inland bill of exchange, is not ne- cessary to enable the holder to recover principal and interest, notice in due time of non-acceptance or non-payment being all that is required for that purpose. Hiibbardv. Troy, 2 Ired., 134 22. It is generally held that the holder must give notice of non-acceptance or non-payment on the no d day, or by the next post, when the parties live in different places. And a delay in giving notice from the 10th to the 21th of March was held to be unreasonable and to discharge the drawer. Ibid. 23. When the drawer dates a bill at a particular place, as for instance, "Danville," notice to him of the dishonor of the bill, directed to him at that place, may be sufficient. But it is otherwise as to the endorser,. who does not designate in his endorsement his place of residence, either generally or specially. Denny v. Painter, 5 Ired., 610. 24. The general rule is, that notice of the dishonor of a bill of exchange or promissory note endorsed, where the parties live in different places, must be sent by the next post, directed to the place of the party's residence; but, if the holders of bill <>r note are exempted by law on account of any particular circum- stances, from tire operation of this rule, they must show the cir- cumstances. Ibid. 25. Although, at the time of the endorsement of a note, the endorsers had reason to believe, and did believe, that the note would not be paid by the maker, this will not dispense with the necessity of due notice. Ibid. 26. A drawer of a bill, who has no funds in the hands of the drawee, is liable without notice, on the ground of hand. But if a bill be drawn for the accommodation of the acceptor, or a note endorsed for that of the maker, then the drawer of the hill or endorser of the note is entitled to notice, though the acceptor or maker be insolvent. J bid. 27. If a note be made for the accommodation of the payee and he receives the money for it, he is not entitled to notice. So, if a maker of a note place effects in the hands of the end< irsi i to meet the note, the latter is not entitled to notice. Ibid. 28. In every case in which notice is dispensed with, then must either have been a fraud on the world in making the secu- rity, or it would be a fraud on the party. wh.>, according to the form of the instrument, is legally bound before him who insists on notice, but where in reality and according to their actual lia- bilities, as between themselves, the relation of the parties is reversed, and he, who appeared to be primarily liable, was sc, BILLS OF EXCHANGE, Arc— \ II 151 rsnly secondarily, and the other party was the real debtor. lhld. 29. When the maker of a note has secured all his property for the indemnity of his endorser, it is not an implication of law from that circumstance, that the endorser has agreed to take up the note, and therefore dispensed with the legal notice; and this is more especially the case where the creditor is. by means of a trustee, a parly to the deed of indemnity, and has a right to enforce it for the payment of his debt, ami the endorser has not the absolute control over it, for his own interest. Ibid. 30. The acceptance by an endorser of an assignment to a third person, whetherthe maker be solvent or insolvent, or the assign- ment be partial or total, as an indemnity against existing or future endorsements of notes, given in renewal as the maker may require, in order to keep his paper from being dishonored, affords no presumption in law, that the endorser is under an ob- ligation to take up (he notes, when the maker shall fail to offer renewals and pay discounts; and such an obligation is the true test of the endorser's being entitled to notice. Ibid. 31. An officer of a bank in the town of Washington, to whom a, notice of a protested bill of exchange was sent, testified that dii the day after he received it, to wit. on the 10th of April, 1849, he sent it by mail to Newbern directed to the defendant; that he. did not know where the defendant resided, and that after learning from a gentleman of Washington who had mar- ried a lady of Newbern, that he did not know, he desisted from further enquiry; it appeared also, that in l.s4. r > the defendant purchased a house and lot in Newbern, and after that time spent a portion of each year in that place, going from his house about the latter part of June, ,and returning in October, but that in 1849 he did not leave home until the 6th of July. With this exception, the defendant had lived, from his youth up, on his plantation some two miles distant from the county seat of < Mis- low, where was the post office to which his papers and letters were addressed. It further appeared, that during the years the defendant spent the sickly season in Newbern, several letters postmarked "New York," came to him, and were delivered to persons calling for them in his name, and that there was a tri- weekly mail between Newbern and Washington; aaA.it was held that tie- testimony failed to showthat Newbern was the place of the defendant's residence or business, at .which he usually received his letters and papers, and that there was not sufficient diligence used by the plainttff in sending notice of the dishonor of the bill to the proper place, to bind the defendant as endcr- boi. fiunyon v. Montfort, Busb. 371. 32. An order for goods is not a bill of exchange, and the doc- trine of notice does not apply to it. Nissen v. Tucker, 1 Jones, 176, U ' 152 BILLS OF EXCHANGE, &c— VII.-VIII. 33. To subject the endorser of a bill of exchange, where the parties reside in the same town or city, the general rule is that notice of nonpayment by the acceptor must be given to the endorser personally, or by a written notice left at his residence or place of business; and, in such case, a notice put into the post office is not sufficient. Costin v. Rankin, 3 Jones, 387. VIII. REMEDY ON A BILL OK NOTE DECLARATION, PLEADINGS AND EVI- DENCE. 1. In an action on a foreign bill of exchange protested for non acceptance, it was held, that the defendant, by suffering a default, had admitted the declaration to the amount of the bill, but that the plaintiff must prove notice to the defendant of the dishonor of the bill, in order to entitle himself to extraordinary interest and damages. Bettner v. , Max. 36, (25.) 2. The giving a note is no extinguishment of a prior cause of action ; and where there is a count upon the note, as well as the general counts, a recovery may be had upon the general counts, though the note is alleged to be lost. Kiddie v. Debrutz, 1 Hay., 420, ^485.) 3. The general issue, to an action on an assigned bond, denies the assignment. — v. Wright, 2 Hay., 150, (327.) 4. In declaring on a note drawn in South Carolina, the declar- ation should aver that by the law of that State such note was negotiable, and that it was assigned to the assignee who sues; such averments being material and necessary to be proved. Rut- ledge v. Read, 2 Hay., 242, (428.) 5. A note not negotiable within the statute cannot be declared on ; the consideration must be stated and proved, and the note can only be used as evidence to the jury. Stamps v. Graves, 4 Hawks, 102. 6. Where a note is made payable on a contingency, which is of such a kind as shows no benefit to the one, nor injury to the other party, the note itself is no evidence of a consideration; but proof of a consideration must be given independent of the note. Ibid. 7. A bill of exchange, expressed to be for value, is prima facie evidence of an executed consideration, and, without proof of its being drawn for the accommodation of the payee, will not sup- port an action by the drawer against the payee, or a set off in favor of the former against an action by the latter. Cox v. Slack, 2 Dev., 8. 8. In an action upon a promissory note, a total failure of con- sideration may be given in evidence to defeat it, when the suit is between the original parties; but it is otherwise where there is only a partial failure, as that can be remedied only by a dis. tinct suit. Washburn v. Picot, 3 Dev., 390. BILLS OF EXCHANGE, &c— VIII.-IX. 153 9. A promissory note for four hundred and forty-seven, may he declared on as a note for four hundred and forty-seven "dol- lars," the word "dollars" being properly supplied by construc- tion. Stephens v. Smith, 4 Dev., 292. 10. The acceptance of an order is admission by the acceptor of having funds in his hands belonging to the drawer. Jordan v. Tarkington, 4 Dev., 357. 11. Where a bill has been drawn by A upon B, in favor of C, and is protested for nonpayment, the acceptance by C of another bill from B, unless it is expressly understood that this is to be a satisfaction of the debt due from A, does not debar C of his action against A upon the original bill, provided the bill of B is dishonored; but it is necessary for C, in his suit on the origi- nal bill, to show that he used proper diligence on the second bill and could not obtain payment. Gordon v. Price, 10 Ired., 385. 12. In an action at law upon a negotiable instrument, alleged to be lost, the loss cannot be proved by the party's own oath, even though the amount of the bill or note be less than $50. Chancy v. Baldwin, 1 Jones, 78. 13. In an action at law upon -a negotiable paper alleged to be lost, the affidavit of the party cannot be admitted that he had not negotiated the paper. In equity the loss of a note or bond may be proved by the oath of the party, to give the court juris- diction; and his oath of the loss is admissible in both courts to let in secondary evidence, of the contents. Grant v. Eeid, 1 Jones, 512. 14. The act of 1827, Rev. Stat, ch. 13, sec. 11, making endor- sers of notes liable as sureties, does not prevent the endorser who pays it ojf, from striking out the endorsement and suing the maker on it in his own name, Nichols v. Pool, 2 Jones, 23. ,(See Rev. Code, ch. 13, sec. 10.) 15. If the holder of a note sue the payee as endorser, and also a subsequent endorser at the same time, and then strike out the name of the payee from the writ, it will not affect his right to recover against the other party; nor will it prevent the plaintiff from afterwards suing the party whose name was so stricken out. Johnson v. Hooker, 2 Jones, 29. IX. LIABILITY OF PARTIES, AND HOW DISCHARGED. 1. An assignee, two years after the assignment, sued the drawer and took him in execution by a ca. so, from which he was discharged under the insolvent act, held, that he could not have any recourse on the assignor; first, because of the long de- lay and, secondly, bacause of the ca- sa.,\ and the discharge therefrom. Greenlee v. Young, 1 Hay. 3, (5.) 2. If an endorsee keep the paper so long as to make it his own, 154 BILLS OF EXCHANGE, &c— IX. ex necessitate it must be a discharge of the precedent debt. though not so originally. Pons v. Kelly, 2 Hay., 45, (204.) 3. Where an agent of another took a promissory note to secure a debt, and neglected at the time to witness its execution, but afterwards on another day subscribed as a witness, held to be a material alteration of the' note. Allen v. Jordan, 2 Hay, 132, (298.) (Overruled by Mackwell v. Lane, 4 Dev. and Bat- 113.) 4. Where A had money in the hands of B, who couldnot pay it, but offered a hill on New York, which A did not want, but finding that C was willing to take it received the money from him, and (' took the hill of exchange from B, held that, upon the protest of this hill and B's failure, A was not liable to C for the money paid for the bill, as he had neither made himseli endorser, nor had promised to be responsible. Willcinsv. Me- Kenzie, 2 Hay. 277, (45(5,) S. C. Conf. Rep. 448,. (507.) 5. The assignor of a bond is not released by the discharge of the obligor on a ea.sa., under the insolvent debtor's law. Green v. BlacUedge, 2 Hay, 10.2, (262,) S. C. Tay. 122, (73.) 6. If the attorney, employed by the owner of a note to sue on; it, strike out an endorsement, it discharges the endorser. Smith v. McLean, N. C, Term, R. 72, (509.) 7. Y\ here the holder of a note procured a confession of judg-- ment from the maker, and granted him a cessat executio for six months, when, had he regularly brought suit to the term at which the judgment was confessed, the execution would have been delayed but three months, it was held that, by this conduct, the holder virtually made a new contract with the maker, by which the endorser was exonerated from liability. Yaney v. Idttlejohn,2 J laws, 525. 8. If an endorser, discharged by the laches of the holder but ignorant of such laches, promise to pay, he is not bound thereby, although it appear that on a sale of real estate by the endorser to the maker, a note and a deed of trust were taken to secure the purchase money, anil the deed was still held by the endorser at the time of the promise. Moore v. Ooffidd, 1 Dev., 247. 9. Mere delay of a holder in collectrng-a note will not dis- charge an endorser, who has been duly fixed with notice. But, if the holder, by a new contract, varies the obligation of the maker, and prevents the endorser from having immediate recourse to him upon paying the debt and taking an assignment of the security, he discharges the endorser. State Bunk x. Wilson^ 1 Dev., 484. 10. At law an endorser has the same right to an assignment of a judgment against the maker, on a note, that he has to the note itself. Ibid. 11. The holder of a note, payable in specific articles, is not bound to receive them at a place or on a day different from thai. : appointed in the note. Erwin v. Caul; 2 Dev. 18:1 BILLS OF EXCHANGE, Ac— IX. 155 !•_'. If .such a note be assigned as collateral security for a bond, and the assignee make a new contract with the maker of fhe note, it becomes his own and the parties to the bond are discharged: Ibid. 13. A note payable to A B, "cashier, or order" and "negotiable and payable" at a particular bank, is payable to A B individ- ually, ^he/word "cashier" being only descriptive of the person: and' the expiration of the charter of the hank, at which the note is' negotiable and payable, will not, at law, affect his right to recover. Horah v. Long, 4 Dev. and Bat., 275. 14 A negotiable instrument payable to 1! G, " agent of his assignees, or order," cannot lie sued upon at law, in the name of the persons, who were assignees of R G by a deed executed before the date of the negotiable security, without his endorse- ment. Grist v. Backhouse, 4 Dev. and Bat., 362. 15. Where A, the payee of a bill of exchange, endorsed it to B, and B to C, and C then endorsed it "-without recourse to him," but not. saying to whom, it then became an endorsement in blank, and the bill became payable to bearer; and notwithstand- ing D ami E afterwards endorsed it in full or specially, yet when it came again to C by delivery, he had a right to demand pay- ment of the bill from any prior endorser. French v. Barm y, 1 Ired., 219. 16. C, being the holder of the bill, the law implies, until some- thing be shown to the contrary, that he gave value for it, or came fairly and legally by it. Ibid. 17. When a bill of exchange made payable to a third person is protested and taken up by the drawer, the latter cannot again put it in circulation. Price v. Sharp, 2 Ired., 417. 18. A person cannot negotiate a paper, when by so doing he would render responsible on it another person, from whom he had taken it up under a prior respi msibifity. But a person, who takes up a negotiable paper once due to himself, may again put it in circulation, provided that in so doing he exposes no person to a prejudice but himself, or those who are justly and legally liable on the paper before him. Ibid. 19. When a bill of exchange payable to A is taken up by the drawer and the endorsement of A stricken out, it becomes dead to all intents and purposes, as a negotiable instrument. Ibid. 20. Where, upon the dishonor of a hill of exchange or pro- missory note, the endorsee has neglected to give the proper notice, the drawer or endorser of the bill or endorser of the note will still he liable; if. after a knowledge of all the facts which in law would have discharged him, he promises to pay the bill or note. Moore v. Tuch r, '■'> Ired., 347. 21. A gave his promissory, note to the Bank of the State, to which B and C were sureties. When the note became due, A offered to discharge it by a draft on New York, which the bank 156 BILLS OF EXCHANGE, note had never been discounted at the bank, nor offered for such purpose. Say v. Banks, 6 Jones, 118. 37. Where a person signs a note in blank, and delivers it to another to be tilled up and used by him, the party signing M bound to others, to whom it has come in the course of business, after being filled up, just as he would have been if the blank had been filled up before he signed. McArthur v. McLeod, 6 Jones, 476. 38. Where a note is given for a real business transaction, it is negotiable in the market generally, and the parties on it will be bound, although it may be expressed to be payable at a bank. It is only restricted when it appears from the paper that it was intended to be used at the bank, and qo ■ ei i.e. Ibid: 39. The liability of a drawer of an order is a conditional one. depi nd ml on presentation and notice of the drawee's failure to pay: a promise bya drawer, therefore, to pay the payee el' such ir-dei without his having made si i on and given such notice, is without consideration and Foid. 11 mien v. Teague, 7 Jones, 573. See (Attachment — Of the garnishee and proc edit i against him. 12.) (bills of exchange and Promissory Notes— Of their endorsement and transfer.) (Interest, 14.) X. EFFECT OF A BILL oil NOTE, WHEN TAKEN FOR GOODS SOLD, 01! FOR A PRECEDENT DEBT. 1. Where a creditor of a firm, for goods sold and deln ered, had taken the promissory note of the firm in settlement ol the ac- count, and had. alter a dissolution of the firm, taken a bill of ige drawn by one of the kite partners iii his own name. which was protested lbr the want of funds of the drawer, and had delivered up the promissory note, such creditor's original claim was not merged by the 1 promissory note or bill of exchange, but he is entitled to recover lor the price of the goods sold and delivered, provided he has surrendered such bill of exchange. Sp ar v. AtJcimon, 1 Ired., 262. i'. 'faking a promissory note or bid of exchange for an ante- cedent debl does not merge that debt, but. on failure of the note or bill, the original debt may be recovered. Ibid. BILLS OF EXCHANGE, &c, BONDS.— XI. 159 XI. DAMAGES. 1. Damages may be given for difference of exchange between this State and Philadelphia, to be ascertained by noting the va- lue of hard money here, and what dollars passed atthere. Mor- ris v. Stokes, Mar. 20, (4.) i. A note for the payment of £60, specie, in tobacco at the specie price, is a note simply for the paymenl of so much money; and. in ascertaining the damages in a suit on such note, the jury may consider the difference in the value of money. Stanly v. { hmmins, Mar. 20, (">.) 3. In a suit on a note to pay £100 sterling, according to the course of exchange, the jury were instructed to find the exchange at 77 7-9. Emsly v. Lee, '.Mar 25, (13.) 4. On a bond for Virginia money, made in this State, and payable her", held, that the value must be ascertained by the rates established, not according to the exchange. Montfort v Alston, 1 Hay., 2, (3.) 5. Damages cannol be claimed under the qffct of l796ona bill. which has not the words "for value received." %s, lav. 118, (7(i.) See Rev, Code, ch. 13, sec. 8. 6. Damages on a protest should be accordinj ! ofthe country whe I is drawn. Scliermerhorn v. i Conf, Rep. 452, (510,) S. P. Anonymous, -1 Hay.. 280, (456.) 7. If a bill be drawn ad sea, the law of tl e place, to which the vessel belongs, shall prevail. .[,•■■ 280 | 56.) 8. In an action by the holders of a lull of e: ainst a which had undertaken to collect it, foj ing the drawer notice of non-paymenl by the acceptoi the tad ofthe drawer' . may be estimati , essing aount of damages. Stowe v. Bank of Ct ■ Fear '■> Dev., -ins, [)- Where a hank receives a lull of exchangi Fn m the drawer for collection, it acts as the agent of the i : is nol enti- damagi s if the bill be prol I only claim expenses, Runyon v. Latham* ■< [red.. 551. BONDS. I. Of their execution, including de- .' IV. Of I '..n of bonds. livery. V. When bonds ma; ormaynotbeavoideffi II. Of the construction of bonds, and j VI. Oi the if bonds. ofthe condition. | VII. Proceedings in suits upon bonds. III. 01 official and public bonds. | VIII. P. action of bonds! ICO BONDS.— I. I. OF THEIR EXECUTION, INCLUDING DELIVERY. 1. If a bond be delivered, and afterwards the obligor take it, make an endorsement upon it and hand it back to the obligee, the endorsement will be binding as part of the bond. Bryant v. Stewart, 2 Hay., 09, (259,) and 111, (269.) 2 If an obligee once accept a bond, by himself or his agent,' lie cannot afterwards disagree to it, so as to make it void. Bank of Newbern v. Pugh, 1 Hawks, 198. 3. A bond is the act of the person whose name and seal are affixed to it, and whose act it purports on its face to be, and can- not be rendered the deed of another by the averme&t of a collat- eral fact. Delius v. Cawfhorne, 2 Dev., 90. 4. A bond must be perfect in all respects before its delivery ; and if a blank be left m it for the amount of the money, to be filled Tip when the sum is ascertained, and after its delivery it be fairly filled up by a stranger, it will nevertheless be void: and a subsequent payment on the bond, or a subsequent delivery of it, will not make it valid, unless it was so intended. McKee v. Hicks, 2 Dev,, 379, 5. The name of an obligor being omitted in the body of a lx>nd is no objection to its validity. Vanhook v. Barnett, 4 Dev., 2G8. 6. Delivery is a question of fact for the decision of a jury, and the circumstances from which it is to be inferred must bo left to them; it being error in the, court to say what circum- stances constitute a delivery. Ibid. 7. An instrument signed and sealed in blank, and handed to an agent orally authorized to fill up the blank and deliver it. is not the deed of the principal; and after declarations of the principal, approving of the delivery by the agent, made in th# absence of the instrument and without any act in relation to it, will not amount to an adoption and ratification of the delivery. Davenport v. ShigM, 2 Dev. and Bat., 381. 8. No particular form is necessary in the delivery of a bond: the mere throwing on the table, or any act or word, from which the intention of the obligor to put the bond in the possession of the obligee, may be inferred, is sufficient. Hence where the obligor had signed the bond while it was blank as to the amount, and the agent of the obligee, after it Avas filled up, presented it to the obligor and told him the amount, at which the obligor expressed bis surprise, but acknowledged Ins signa- ture to the bond, and did not object to the agents retaining it as his, the obligor's, act and deed, it was held, to be sufficient evidence from which to infer a delivery. Black well v. Lane, 4 Dev. and Bat,, 113. 9. A bond cannot be delivered to the obligee as an escrow, foi such a delivery would make it absolute at law; but it may be BONDS.— I. i6l delivered by the sureties to the grincipal obligor as an escrow. BhniK v. Botcman, 2 Iretl., 338. 10. Where a bond has no subscribing witness, then the proof of tin- possession by the obligee, and of the handwriting of the obligors, is a sufficient ground for presuming that the bond was sealed and delivered by the obligors. Ibid. 11. The bare circumstance, that the name of a person, who did not execute the bond, is inserted in the body of it, as one of the obligors, is not of itself evidence to show that those, who did sign and seal and deliver it, delivered it only as an escrow, upon condition that that perston should also execute it. Ibid. 12. A paper writing, purporting to be a bond, signed and seak 1 1 1 iy a party, in which a blank is left for the sum to- be after- wards inserted, which blank is afterwards filled up and the paper delivered, not in the presence of the party signing, nor by any person having authority from him under seal, is noi the bond of the party so signing and scaling. Gfiltamv. Holt, 3 Ired., .".in). 13. He who attempts to execute or consummate a bond or deed, whether for money or any other property, must have authority to do so under seal. Ibid. 14. In every good bond there must be an obligor and an obli- gee, and a sum in which the former is bound. Ibid. 15. It is of the essence of a bond to- have an obligee as well as ohligoi?; it must show upon its face to whom it is payable; and the defect cannot be supplied by showing a delivery to a particular person. Phdps'v. Call, 7 Ired.,-262. lo'. A stranger may accept the delivery of a bond, and it is good unless the obligee refuse to ratify the delivery; but in the absence of proof to the contrary such ratification is presumed. Iredell v. Barbee, 9 Ired, 250. 17. Although a bill or promissory note may be made payable to A or bearer, yet a bond cannot. That being a deed, must be mad'- to-some certain obligee, to whom it may be delivered. Marsl v. Brooks, 11 Ired., 409. 18. After a bond has become a perfect instrument, the obligee can. by endorsement, order the payment to be made to the . fur in respect to their transfer, notes and bonds are put pn'the same footing. But their nature, in their inception and I i Fore endorsement, is nut touched by the statute and remains as at common law. Ibid. ^See Rev. Gode,ch. 13, sec. 1.) lit. To render the delivery of a bond effectual, acceptance on the part of tin- obligee is as necessary as the transfer on the part of the obligoi - . Bespass v. Latham, Busb., 138 20. Where A and B executed $ bond payable to C, for the Purpose of burrowing money on it fur the benefit of A, ami C, Having refused to receive it and advance the money, return to A. and eight days thereafter A sent the bond back to C 11' 162 BONDS.— I.-II. with an endorsement to D, written thereon, "withp &c," which he requested C to sign, and C did sign it, supposing that 1> would advance the money; it was held, in a suit against B, at the instance of C, the endorsee, that the bond was void for want of delivery, on account of C.'s having i ■ to accept it, and that the subsequent endorsement and transfer of it to D aid not bind the defendant, he having given no authority for such new delivery. J ' '. 21. Upon the plea of now i ; fadi m, the admission by the de- fendant of the genuineness of the signature, while he alleges at the same time that the body of the note was a forgery, does no,t relieve the plaintiff from the onus ol proving the execution -of the heed declared on. Otey v, Hoyt, 2 Jones, 70. 22. A bond made for the purpose of raising money mi loan was made payable to A, who refused to advance money upon it % il was afterwards sold by one of the obligors to B; and it was held, that these facts did not amount to any evidence of a delivery to A. Whiehardv. Jordan, 6 Jones, 54. ■2'A. The delivery of a bond or any oth •>■ deed, to a si ranger, is no1 a delivery to the obligee or grantee, unless it be delivered for the benefit or use of the party. Ildd. 24. The fact that the bund in the above case was afterwards d in a d e and signed '•;■■ him, in trust to secure creditors, among whom was B is no evidence that the bond was delivered to A, or to B for his benefit. Ibid. 25. It matters not in what manner or form an I uts his signature to a sealed instrument, provided i1 aj peai made i1 for the purpose of binding himsi if. ; v. llin\ , 7 Ji s, .">10. II. OF THE CONSTRUCTION OF BONDS, AND OF THE CONDITION. 1. The condition of a 1 of t] a, and no action can be brought upon it. Adams v. Spear, J Hay., 215, (245.) 2. If a bond be givi is for thi hire of a sLn : •. stipu- lating that he shall noj te hirer break this stipulal the slave is di iid he is lompelled to pay tin value of slave, I his wil! I no grou in a suit upon a bond for the hire, b . Jones, 2 Murph., 54. 3. A bond to pay $100 d work horse," means a horse worth $3.00, i er of a horse worth onl; i Hare is aot sufficient. Gray v. Young, 2 Murph., 123. 4. An injunction bund is forfeited, and the security is liable thereon, whether the induction be dissolved on the m 'rits, or in consequence of the death of the complainant, - neglepl to sue out process in due time.. J< nes v. Hill, 2 Murj li., 131. BONDS.— II. 163 5. When a bond is given for the hire of a slave for a year, the sickness and death of the slave during the year will furnish no grounS for an apportionment of the sum secured by the bond. Ragland v. Gross, 2 Car. L. R, 121, (219.) li. Executions having issued against .\ were levied on a horse in the possession of Ji, who gave a b I payable to the plain- tiffs in the executions, with the defendants as his sureties, for the production of the horse, and on the failure of the obligors to deliver the horse to the sheriff, who however did not attend to receive him, held that as the obligors had undertaken to do an nger ever whom the obligees had no control, the pbligors tvere not e ci ed bj fchi refusal or neglect of the stranger. NitcliM v. Patillo, '2 Hawks, 40. 7. To express, in the condition of a bond, what the law would aplied from the other words inserted, cannot affect the validity of the bond. Ju lg< s v. Deans, 2 Hawks, 93. 8. The obligor must show either that he has fully complied with the condition of his bond, or that he has offered to do so; then 'fun.', a condition to convey an equal and fair half of a : tract of land, belonging to the obligor, is not peri by an offer to convey a cei tain tract by metes and bounds, with- out proof of title or the fairness of the division; neither is formed by an offer to convey an undivided interest less in quantity. Smith v. Shepard, 1 Di v., 461. 9. \:i insensible condition renders tin bond, to whi !, single; but unm aning v ords in the condition I or th i iiefit of it. < dated in April, was For the delivery of th erty"the L5th Friday before May court," the figures wen reji ;ti a and, th iurt having a term in May, the delive] -I on the Friday before the ensuii Foster v. Fro '■ 1 ' ' sv., 42-1. 10. The. condition of a bond : s inserted for the benefit i iile him to ■ ■ If from the pi nalty. If of a condition, however improper, should f ty be enfoi ligor, notwithstanding he had fully executed the condi- :ording to the understanding of the parties. Aj y uncer- therefore, in the condition i ind corrected b «i indmeni ; and words . v bich ■ no distincl en ai ing, ;#ul which Lue of the eon- er. Ibid. 11. . r of a bank "to ao ount le and pay over all monies, &c," is tanl i i; con- ii" d avior ; " and ii ' n the scribing the latter condition. .and 164 BONDS.— II. does not preclude the insertion of the former. State Bank v. Lccle, 4 Dev., 529. 12. A bond, with a condition to be void upon the payment of .such damages, as might be recovered of the principal obligor, for "wrongfully bringing a suit in equity against the obligee, is a guaranty that the principal shall be able to satisfy any judgment obtained against him, in an action on the case, for wrongfully filing the bill ; and no action can be brought on such bond, until the obligee has obtained such a judgment, and failed to procure satisfaction. Davis v. Gully, 2 Dev. and Bat., 360. 13. Where the defendant entered into a penal bond to the plaintiff, with a condition which recites that the plaintiff "had contracted with the defendant to furnish a steam engine, &c, and to put up a saw mill frame of the best materials, &c, the said defendant to find every thing, erect the furnace and flue, &c, and to have the whole clone in a convenient, durable and workmanlike manner, &c," and to have the whole done by a certain time, it was held that the defendant was to furnish the engine and all the materials, and do all the work, and not the furnace and flue only. Gordon v. Rainey, 2 Dev. and Bat., 487. 14. Where there is an ambiguity in the condition of an obliga- tion, which cannot otherwise be removed, the law adopts the construction which is most favorable to the obligor; but no for- mal or technical words are essential to the constitution of a con- dition, and any set of words, from which it can be satisfactorily collected that it was the intention of the obligor to bind himself to the per formance of a duty, will be sufficient to make the performance of that duty a part of the condition of his obliga- tion. McLane v. Peoples, 4 Dev. and Bat.. 9. 15. Where a bond was given to secure tne payment of a certain sum at a particular day, which sum was stated to be in part for a tract of land, and a condition was annexed, that the obligee should keep the obligor "indemnified as to the heirs " of a certain person, it was //.. or order, $160 for the hire i a negro, and theu.se of two full crops of boxes on Moore* absolute, and not conditionaL Burney v. Gal- loway, 11 Ired., 53. 31. A bond for acertain sum. payable in specific articles, at a particular time and place, becomes, after it is due, necessarily i y, unless the defendani can plead and pr< i rticles at the time and place tioned in the eonfa r, 11 [red., 276. 32. A died, leaving three children, of whom B tb v idian. and who had slaves left to them by the will ofC, to I i amounl i f upwards of $600, B gave D, the plain- tiff, a bond of the following purport : ''1 promise to pay 1 » $360, i consideration of money, which he paid for A and his heirs, which sum i am to pay when it can be raised out of tin [eft to them by the will of C." The writ was issued near- ly threi i r the date ' the tru action of the bond was not that the payment should I ' ed, until the guardian could raise the amount out of the hive and profits of the property, but that it should be made as soon as the guardian could, by proper proceedings, raise by 1 of the property, and that this could have been done within less than three years. Mcltat v. McSae, 11 Ired., 3 33. A bond . to an officer to indemnify him for selling Under an execution at the instance of "J and II against W; ' .'■1,1. that to entitle the officer to recove? on this bond, he must show that he sold under the execution mentioned in the bond. Dickinson v. Jones, 12 [red., to. 34. A condition precedent, in a bond for the payment of scription to Railroad stuck, that the road is to be completed to a certain vill ig . is substantially complied with, when it is made village, in such a manner as to bear daily trains on it, carrying all the freighl and travellers that offer, although some portion of the work is intended to be replaced with other and better materials. 'Ned v. King, 3 Jones, 517. 35. Where A agreed to make good to the plaintiffs certain sums, which they had paid as sureties for his son, out of that part ol which his son would be entitled to at A's • ! ! ■ bond to such claims as said sure- ties ould "produce oi ithof A;" it ivas held in asuil i : executor of A, thai i1 was no1 □ ryfoi the su show that they had exhibited their claims to A, but only that they had paid th a in | [g life time and nol his deal 4 Jom s, 444-. 36. W hi re a bondwasgiven 1" pay a certain sum, on or before i gold mine, with a condition that "should '. / '■ ,v,v. the bond to be null and void, otherwise 168 BONDS.— II.-III. of full effect, " it was held that it became absolute on the day named for the payment, provided the mine had not previously been tested and found valueless ; and that evidence of tests after- wards made was inadmissible. Gamble v. Beeson, 5 Jones, 128. 37. Where the owner of land conveyed it to a bargainee, in consideration of certain profits and advantages contained in a liiind of even date therewith, which said bond provided, under a penalty, that the bargainor was to be supported for life by the bargainee, and a "nota bene " was added to the bond to the effect that the land conveyed by the deed was not to be "sold, made away with or disposed of" during the life of the bargainor; it was held that this did not amount to a condition annexed to the estate by way defeasance, but the bargainor's sole redress rested on the bond. Hart v. Dougherty, 6 Jones, 86. 38. A receipt, not under seal, given by the obligee of a bond con- temporaneously with its execution, setting forth that such bond was given for a third person's account, and that if such account was not collected by the obligor, the bond was to be delivered back to him, it was held that the bond was not delivered as an escrow, and that the unsealed receipt could not amount to a defeasance. Cross v. Long, 6 Jones, 153. 39. An obligation to pay a sum of money on a given day, "to be discharged in any good trade, to be delivered" at any one of several places, imposes on the debtor the burden, if he would save the condition, of giving notice of the place where he will have the goods, and of having them there at the appointed time. Barrett v. EUer, 6 Jones, 550. 40. On a bond payable twelve months after date, expressed to be for the hire of a slave for a year, the plaintiff is entitled to recover, although he got possession of the slave ami detained him against the wishes of the slave before the year was out; for the being allowed to keep the slave, for a year is not an implied condition precedent, Hurdle v. Richardson, 7 Jones, 16. 41. A bond for a certain sum of money, payable to A or order, with interest from a day prior to that of its date, is payable im- mediately, although it purports to lie given for the price of bricks to be delivered at a future day. Watson v. Bledsoe, 1 Winst., 253. III. OF OFFICIAL AND PUBLIC BONDS. 1. A guardian bond given under the act of 1762 should have been made payable to the justices present in court, and granting the guardianship. If made by an acting justice to "A B, and the rest of the justices,-'-' &c, it will be void, as a party cannot be an obligor and obligee ait the same time. The Justices of Pas- quotankv. Shannanhouse,, 2 Dev., 6. S. P., Justices of Civrrituek y. Dozier, 3 Dev.. 287, Justices of Choicau y. Bonner, IUd, W& BONDS.— III. 169 Justices of Cumberland v. Armstrong, lbid\ 284 Dickey v. Jmey, 4Dev., -!.">. Davis v. Somervitte, Ibid, 382. (Ofli.-ial bonds of guardians, clerks, sheriffs.and many other officers are now made payable to the State. See Rev. iGode under the proper heads.) 2. In action upon a bond, made to a number of persons as a class, by the name cf their class as "with the justices of a coun- ty," all who belong to the class must join; and upon item est factum pleaded, it must be averredand proved that the plaintiffs belong to that class. WiRiams v. Ehringhaus, 2 Dev., 511. 3. The acts of 1777 and 1785, requiring the obligees of the official bonds of sheriffs and coroners to assign them to persons injured by a breach of their conditions, were intended to facili- tate the remedies of these persons, and not to take foam them any rights which they had at common law. MeRae v. Evans, 2 Dev., 383. 4. The act of 1703, authorizing official bonds to be put in suit by persons injured by the misconduct of the officers, without assignment, is in affirmance of the common law; and athougb coroner's bonds are not mentioned in it, fcheymay be sued in the same manner. Ibid, (See Rev. Code, ch. 78, sec 1.) 5. A bond given to a trustee, with a condition to secure the rights of others, may, at comuaon law, be put in suit hi the name of the trustee, and an injury to the cestui que trust be assigned as a breach of it. Hid. 6. The statute of 8th and 9th of William 3, ch. 11, was in- tended to authorize courts of law to ascertain the acfoial damage incurred by the breach of the condition of a bond, and to prevent the defendant from being driven to the necessity of having them assessed by an issue of quantum damnificatus, awarded by a court of equity. Ibid. (See Rev. Code. ch. 31, sec. 58.) (All official bonds are .now made payable to the State, and every person injured by a breach of their conditions may sue in the name of the State. Rev. Code, ch. 78, sec 1.) 7. Where a bond was given to "the justices of the court of pleas and quarter sessions," and sundry persons joined as plain- tiffs, averring themselves to be justices, but offered no evidence of their character, it was held, that they could noi recover, although the defendant had not, by any special pica, denied that they were justices. Ibid- 8. Bonds given by officersfor the faithful performance of their duty, which do not conform to the act requiring them, can only be enforced according to the rules of the common law; and a bond given by a sheriff, in a penalty greater than that required hy law, is nor within the provision, authorizing successive suits on sheriff's bonds, and is extinguished by the first recovery thereon. Branch v. Elliott, 3 Dev. 86. 9. But although a judgment upon such bonds is a bar to a second suit, yet if the bond be within the statute of 8th and 9th 170 BONDS.— III. Will. 3, the relator may have a sci. fa. suggesting other' breaches, or if Dot within that statute, execution may issue at his risk, leaving the defendant to seek relief in equity. Ibid. 10. When an order of a county court allowed a guardian to renew his bond with A and B, his sureties, and a bond not drawn according to the statute as an official bond, hut good as an obligatio] lommon law, was sealed by A only, and left with the clerk, it was held, thai a delivery could nut bo inferred, there being no evidence of an actual delivery. Fittsy. Green, 3 Dev. 291. (Defects in such bonds are now cured. See Rev. Code, oh. 78, s sc. 9.) 11. A bond payable to "A. B, chairman and other justices of the court," is in law payable to A. B, alone. Ihid. 12. Bonds intended to be official, but which arc not in con- formity to the .statute, may he declared on as voluntary bonds at the common law. Williams v. Ehringhans, 3 Dev. 297. 13. A bond payable to the justices of a court has the same validity, as if i1 described the obligees by name. Ibid. 14. A bond to the chairman of the county court, his "execu- tors," &c, is not an office bond for the want of the word '-suc- cessors," &c, but it enures as a private bond, and a delivery to the clerk is sufficient unless the obligee refuses it, although the clerk is the agent of the chairman as to office bonds only. Threadgitt v. Jennings, •"> Dev., 384 15. A sheriff's bond executed by one, who was an acting jus- tice, "to A. l'>. and the rest of the justices composing," &c, is void. Dickey v. Alley, 4 Dev., 43. 16. An official bond to an officer, appointed to take it, vests upon his death or resignation in bis successors, though they are not named. Doiod v. Duels. 4 Dev., 61. 1 7 Where an administration bond was made payatte to A. B, and " other justices of Person county," and it appeared that the principal obligor was, at the time of executing it, a justice of said county; it was held, that the bend was valid, and the words ',' other justices," were rejected as senseless and uncertain. Varir hook v Barnett, 4 1 *ev., 268. 18. A guardian bond payable to the j i ftices on the bench is void if one of the obligors be one of the justices. Do SomervM . 4 i >ev., 382. 19. A bond, which imposes upon an officer nothing but what the law requires, cannot be objected to because it does not con- tain all that the law prescribes. Hence, abond executed by a constable, which stipulated that he should "well and faithfully execute the office of constable during his continuance in said office, agreeably to an act of Assembly." &c, was held good as an official bond under the act of 1818, prescribing the duties of ( stables. White v. Miller, 3 Dev. and. Bat., 55. (See liev. Code, eh. 24, sec 7.) BONDS— II. 171 20. i sheriff's bond to "his Excellency M. S., Captain Gen- eral and Commander in Chief, in and over the State of North i i. in the sum of $10,000, to be paid 1<> his Excellency, the &ovi rnor, his successors and assigns," is a bond payable to the Got r in his official capacity, and is an official bond within the: I of L 823, "which was in force when it was taken. Gov- i rnor . brt, 1 Ired., 155. 21. A bond payable to A B, governor of the State, for tin usi of the State, goes to bis snccessor in office, a upon in the name of the successor. Governor v. W\ I "h 3, [red., 24D. 22. A bond taken by a clerk and master of a courl of equity in pursuance of an order of the court, and mad'' payable and his succ< ssors in office, must, on iiis death, be sued upon in the name of his personal representative, there being no l;nv re- quiring such bonds to be male payable to him and "his su ce&- sors in office." Kinney v. EfJwridt e, 3 Ired., 3(50. 23. ' : ud, payal fe to the State, given by a public officer for tiie dis i F public duties, though not taken in the manner, nor by the persons appointed by law to take it, will be good as a voluntary bond. Being for the benefit pfthe State, the State will be presumed to have accepted it. when it was delivered to a third person for her use. States. McAlpin,4 [red, 140. 24 \ bond given by a sheriff for the discharge of his official duties, though void, because those who accepted it had no power to do so, may be made valid ah initio, by a subsequent act of the legislature, declaring that such bonds should be considered as having been legally delivered ; and tins consequence will fol- low if the act be passed not only after the institution of a suit upon the bond, but afti r a decision upon it, both in the superior and supreme courts. State v. Paul, 5 Ired., 105. (See Rev. Code, Ch. 79, sec. It ) 25. When a bond is, upon its face^ exclusively for the use of the State, an express acceptance by an agent for the State need not be shown. State v. Ingram, 5 Ired., 441. 26. [nan action on a bond payable to the State, and condi- ti 1 For building and keeping in repair a public bridge deuce that the bond was sjgned and sealed by the oblig id was afti t vards found among the official papers of the eltjrk oi : ! mtycourt, which appointed the commissioners toletout the building of the bridge, is sufficient proof of a delivery. Ibid. 27. Under the act prescribing the remedy against sheriffs, eonstables, &c, when 1 hey have collected money and failed to pay it over, the party injured may have his action on (he officer's bond, against any one or more of the parties to the bond, with- out joining the principal or all the sureties. Gimsv. Barbee,Q Ired., 279. (See Rev. Code, ch. 78, sec. 4.) 172 BONDS.— III. 28. Where a sheriff's bond had been taken in 1838, only three justices of the county court being present, and the bond "was for only $ 4,0(10 instead of $10,000, as required by law, it was held, that the defects were cured by the act of 1844, which had a re- trospective, as well as prospective operation. .State v. Jones, 7 Ired., 359. (See Rev. Code, ch. 78, sea 0.) 29. When a term of office, (as that of sheriff,) is for more than one year, the bonds given for the faithful discharge of the duties of his office at the time of his appointment, ami (lie new one given from time to time afterwards are cumulative; that is, the first bonds continue to be a security for the discharge of the du- ties during the whole term, and the new bonds become an addi- tional security for the discharge of such of the duties as have not been performed at the time they are given. Pool v. Cox, 9 lred., 69. 30. Where a statute requires a bond from an officer, for the faithful discharge of his duty, and a new duty is attached to the office by statute, such bond, given subsequently to the latter statute, embraces the new duty and is a security for its perform- ance, unless where, when the new duty is attached, a bond is required to be given specifically for its performance. State v. Bradshaw, 10 Ired., 22.">. 9. A man may now, contrary to the former rule on the sub- BONDS.— V.-VI.-VII. 177 Jeet, aver and prove his own lunacy or intoxication, to avoid his 1 mud. Morvis v. Clay, 8 -Jones, 21(5. VI. OF THE ASSIGNMENT OF BONDS. 1. The assignment of a bond, not negotiable in law, vests the property in the assignee, and a court of law will take notice of him as owner. Long v. Baker, 2 Hay., 12*. (291.) 2. Tin.' legal effect of tin- sale- and delivery of a bond without endorsement, is not to pass the legal title to the purchaser, for the endorser may release it. if he think proper, to the maker of the bond; but the purchaser is constituted the agent of the vendor, ami the money is vested in him as the legal owner, the moment it is collected; for the chose in action, of which the ven- dor is the legal owner, is extinguished by an act which he had authorized to be done, and the money then vests in the pur- chaser as legal owner, by force of the contract of sale, which 5 thereliy became executed. Therefore, where such purchaser obtained judgment in the name of the vendor, and the sheriff collected the judgment, and, after notice by the purchaser not to do so, paid the money to the vendor, it was lu-hl that he, the sheriff, was, notwithstanding such payment, answerable to the purchaser for the amount Hoke v. Carter, 12 Ired., 324 VII. I'ROCEEJNGS IN SUITS TJPON BONDS. 1. Under the plea of non est factum it cannot be given in evi- dence that the bond was delivered as an esc* w- There should have been a special plea. Awnymous, 2 Hay- 327, (497,) S. P, SmaUwood v. Clark. Tav.. 281, (117.) But see contra Moore v. Parker, 1 Murph. 37, S.' C. Conf. Rep., 553, (573.) 2. When a bond is to be discharged in tobacco, the tobacco is to be estimated at its worth at the time it is to be delivered, unless the custom of the merchants is different, when that will prevail. Litthjohn v. Gilchrist, 2 Hay, 393, (589.) 3. If a h i'il sued on be lost, after an appeal from the county court, the plaintiff may prove the contents thereof in the supe- rior court, without amending his declaration. King v. Bryant, 2 Hay., 394,(591,) S. P., 1 Murph., 131. 4. In a suit upon a penal bond, the plaintiff is not entitled to recov r bi yond the penalty. Warden v. Nieteon, 1 Murph., 275. 5. In an action at law upon a lost bond, the plaintiff cannot be admitted to prove the loss by his own oath, hut he may prove it by disinterested witnesses. Cotton v. BeasL y, 2 Murph., 259. S. C. 1 Car. L. R. 239, (19.) 6. [n an action on a bond conditioned to perform the deerei in a suit in which A and B were defendants, it was held that the record of a suit in which B and C were defendants did not sup- 12 178 BONDS.— VJI.-VII1. port the breach assigned, and that it could apt be proved b ; y parol that the name of G was, by mistake, inserted in the bond in the place of the name of A. Coleman v. Grumpier. Dev., 508. 7. In a suit at law upon an injunction bond, it is not necessar. for the obligee to state in the declaration, nor prove upon the trial, an order of the courl of equity allowing the withdrawal of the bond, and permitting a suit to be brought upon it. Fulls v. McAfee, 1 [red., 139. _ 8. Where a bond is given to "A and B, and the rest of the justices, &c," to be paid to the "said A and B," an action for a breach of it cannot be brought in the name of A and 15 alone, with; 'Hi joining the other obligees, or showing that A and B are the survivors. It is true a payment to them would discharge the obligation, hut if it lie not made, suit must be brought by the parties with whom the obligation was contracted. Richardson v. Jones, 1 [red., '2['<<. 9. In an action on a bond with a condition to convey a tract of land, it is not necessary for the plaintiff to bring into court the price agreed to he given for the land, if he can show that he had complied wit!,; his part of the contract, by tendering to the other party what he was hound to pay. Lee v. Bussed, * I red., 526. 10. In an action u It must l>e brpught in the name of the obi ; ,i:;e;. or in that of his personal representative, if he he dead. '■■'.. : \. Hemphill, 1 Wjjast • )i '<- Vlli. PAYMENT OR SATISFACTION of BOXDS. 1. Twenty years raises a presumption of the payment oi a bond, liable to be rebutted by proof of circumstances to account for tl e delay. Quince v. Ross, 2 Hav. 180, (377, | S. C. Tav. 155, ttJfj'jSheppard v. Cook, 2 Hay. -Ml. (426;) Ridley v. Thorpe. /hi,l. "_'.'■'■. (525.) (The time is now reduced to ten years. See Rev. Code. eh. 65, see. IS.) 2. The presumption of the payment of a. bond, raised by a forbearance of twenty years (or tor ten years since the act of 1826,) may be repelled by evidence that the debtor had not the means nor the opportunity of paying. And the repelling of the presumption will not be hindered by the fact that the debtor had BONDS.— VITJ. 179 ;& reversionary interest in certain slaves, but which did not vest in possession until a short time before the suit was brought, when it did not appear that the creditor knew of the existence of tlie reversionary interest, and it was evident that it was not in fact applied to the payment of the debt McKinder v. Litth- fohn, 1 Ired., 66. (Sim- Rev. Code, eh. 65, set 18.) 3. The fact of the insolvency of a debtor, from the time his debt became due, is proper evidence to be submitted to a jury, and estimated by them in considering whether the presumption of payment of a bond under the act of 1826 is re'butted. And this answer to the presumption will he more or less forcible, ling to the' nature and degree of the insolvencv. }\\„id\. 1) , n, 1 ired., 230. 4. The' want of a person, against whom to bring suit, rebuts the presumption of the payment of a bond, arising from forbear- ance to sue. Bide v. Bide, 2 Ired., 87. 5. It is a question of law for the court as to what facts will repel the presumption of payment under the act. Ibid. ii. fhe' declaration of a defendant that she "remembered giv- ing the note, Imt believed she had paid it," is no evidence' to rebut the presumption of payment, arising under the act, from the lapse often years, and the Judge has the right so to instruct the jury, HoUy v. Freemen, 2 Ired., 218. 7. Where a debtor relies upon the presumption of the pay- ment of a bond arising from the lapse of time', and the creditor endeavors to rebut that presumption by showing his insolvency, the creditor may also oiler in evidence the circumstance of the debtor's residing at a great distance from him, as tend] show, that although the debtor may have had property for :i short time, yet the creditor had not an opportunity of ki thai Fact, and of getting satisfaction outof the property. McKin- der v. Litilejohn, 1 [red., L98. 8. Where, upon the sale of slaves bj order of a court ol equity at the instance of a guardian, heb came the purchaser, and gave his bond to the clerk and master for the purchase money, and the ward, alter he became of age, settled with his guardian, and took back the slaves with the assent of the clerk and master, it icas held, thai in a suit by the ward in the name of the clerk and master upon the bond, these facts might be shown a tisfaction or payment of the bond, at law, as the ward, in taking back the slaves with the' consent of the obligee of the bond, acted as his agent in receiving satisfaction. Kinney ^ idge, •"> Ired., 34. 'J. The acceptani fa 1 ill of exchange by the obligee of a bond, in discharge of it, will amount to a payment of the bond. v, Dunn, i) Ired., 133. 10. In an action on a bond, payable to two attorney -, which 1 '■ een due mere than twenty years, the defendants relied on 180 BONDS--VIII. the ) 'resumption, and to rebut it the plaintiffs proved that one of the defendants had recently said that he had paid one half of the bond, and the other half was relinquished because the attor- ney, to whom it was payable, had relinquished the suit; and it ivas held, that the declarations were not sufficient to rebut the presumption. Henri/ v. Smith, 7 Ired., 348. 11. In an action on a bond where evidence was given that the bond was td be delivered up, when the obligor paid the costs of a certain suit, it was held, that the evidence was inadmissible to show that the bond was a conditional one, but that it was proper to show that, by the agreement of the parties, the bond was to be paid in whole or in part, by the payment of the costs of the suit, and that therefore, the obligor, if he paid the costs, was entitled to a credit on the bond pro tanto. Walters v. Wal- ters, 10 Ired, 145. 12. Where A gave B a bond for $50, and at the same time it was agreed by parol, that whenever A paid certain costs in a suit then pending between the parties, the bond should be sur- rendered and given up, and A afterwards paid the costs; it was held, that this was competent and sufficient evidence of the dis- charge of the bond. Walters v. Walters, 12 Ired., 28. 13. When a person has been sued on his bond as administra- tor, within ten years after the relator's coming of age, he hav- ing been an infant at the time of the execution of the bond, the administrator, though the bond was given more than ten years before action was brought, cannot take any advantage of the act relating to presumption of payment. Threadqill v. West, 13 Ired, 310. 14. The presumption of the payment of a bond, arising under the act, from a lapse, of ten years, is rebutted by the payment of a part of the sum before the expiration of the ten years ; and this applies as well to joint obligors, who are sureties, as to the principal who has made the payment, McKeethan v. Atkinson, Jones, 421. 15. Where one of the obligors in a bond said, "I signed the note but will never pay it," this will not rebut the presumption of payment arising from the lapse of time; for though, it may af- ford proof that he did not pay it, it does not follow that his co-obligor had not, Wilfong v. Gline, 1 Jones, 499. Hi. Where A and 1'. had come to a settlement, and agreed upon a particular sum, to which B was entitled as a credit upon a oond held against him by A, which was entered accordingly, and afterwards upon a complaint by A, that the credit was too large, B said, "go and alter it," and if you can show me the mis- take it will be all right, ami if not the credit must be put back, •or altered hack," and A did alter it ; but it was held, in a suit on fche bond, that B was entitled to the credit first entered, as a BONDS.— VIII. 181 payment, unless A had shown before, or could show on the trial that there wns a mistake. Rogers v. Davenport, 2 Jones, 138. 17. If a debtor have the means or ability to pay off a bond, during twelve or fifteen years before suit brought, it is a suf- ficient answer to the proof of reputed insolvency, which is relied on to repel the presumption of payment arising from lapse of time, although the debtor may not have been able to pay his other debts during that time Walker v. Wright, 2 Jones, 155. 18. The law gives to the lapse of time an atificial and techni- cal weight, beyond that which it would naturally have, as a mere circumstance bearing upon the question of payment. Ibid. 19. A substantial payment made by one of several obligors in a bond, in the absence of the others, before the lapse of the time necessary to raise the presumption of payment, will prevent such presumption from arising, as well in respect of the other obligors, as of him who made the payment, Lowe v. SaweU, 3 Jones, 67. 20. A presumption of payment arising from the lapse of time, in favor of one of several obligors, is payment as to all; and this presumption is not rebutted by a declaration of the principal obligor, that he had put money into the hands of his surety with which to pay the bond, PearsaU v. Houston, 3 Jones, 346. 21. Where a bond has been standing for ten years, and the § resumption of payment from lapse of time is relied on, contra- ictory and false statements made by the defendant, as to the time, place and manner, in which he alleged the bond had been discharged, will not repel the presumption. Loice v. SoweU, 4 Jones, 235. 22. Where it appeared that acredit was entered by the obligee on a bond, before the expiration of ten years after it was exe- cuted, and within ten years before the suit was brought, and the obligee died before the expiration of ten years from the exe- cution of the bond; it was held to be proper evidence to be sub- mitted to the jury, for the purpose of rebutting the presumption of payment from lapse of time. Williams v. Alexander, 6 Jones, 137. ' (Overruling, S. 0. in 5 Jones, 162.) 23. Where the members of a firm gave a bond, executed by each, for a debt of the firm, and property was delivered by them fetnd accepted by the obligee as a payment thereof; it was held, that the 1 1, nid was thereby discharged, and that it was not in the power of one of the obligors, by agreement with the obligee, to withdraw the payment, and put the bond in force again. Jar- mi m v. Ellis, 7 Jones, 77. 24. Where, to repel the presumption of payment arising from the lapse of time, it. was proved that the defendant said he "owed the plaintiff a little note, but she might wait," and at another time that he "owed her a note;'' it washeld to be proper to le;M-e it to the jury to say whether the note in question was 182 BONDS— VIII.— BOOK DEBT. the one alluded, and if it were, the plaintiff ought to recover. . Hinsaman v. Himaman, 7 Jones, 510. See (Bonds — Of the construction of 1 minis and of the condi- tion, 2-4,) (Evidence — -Presumptions, 5-32.) (Lex loci, 14.) (Poyment, 4-21.) BOOK DEBT. 1. The plaintiff, under the book debt law of 1756, may pri >ve F< tf work and labor done by his slaves, and also for goods sold and delivered for the rise of the defendant by sundry persons, and paid for by the plaintiff Mitchell V. Clarke, Mar. 25, (13.) (See Bev. Code, ch. 15.) 2. The executor of a deceased attorney was permitted, under the book debt law, to prove an account for fees, by the testator's books. Charlton v. Lowry, Mar. 26, (14.) 3. Defendants may prove sets off under the book debt law. Thomegeux v. Bell, Mar. 44, (38.) 4. Where a party swears to his account, under the book debt act, the opposite party may, in reply, prove him to be unworthy of credit on his oath. The act only removes the incompentency of the party who offers to prove his Look account, but leaves his credibility as a witness to be determined by the jury. Kitchen v. Tyson, 3 Murph., 314. 5. If it appear from the books that the articles were furnished more than live years before the suit was brought evidence of an acknowledgement of the account within three years, will revive the original promise, because such acknowledgment furnishes evidence that the presumption on which the statue is founded does not exist in the particular case. Kiser v. Howies, 2- Hawks 539. 6. Where an administrator takes the book debt oath, and' swears that the original entry is in the handwriting of a person who has not, after diligent enquiry, been heard of for seven years, and that he knows of no person who can prove his hand- writing, it is sufficient proof of the book debt. Stevelie v. Green- lee, 1 Dey., 317. 7. A justice has power to administer the book debt oath on a trial before him. Colbert v. Piercy, •"> Ired., 77. 8. It is competent for a party, under the book debt law, to swear to the price, as well as the delivery of the articles stated in his account. Audit is competent lor the opposite party to cross-examine the person taking his oath under that law, both as to the articles and' the prices charged with a view '<> e.ontm- BOOK DEBT.— BOUNDARY.— T. 183 diet or discredit him, as he might do in regard to any other wit- ness swearing to his account, the party so swearing being con- sidered a witness in his own cause. Ibid. it. In all rases under the book debt law, it is the duty of the party who wishes to prove his debt by his own oath, to produce the orignal account, when notice to that effect lias been given him by the other party; and a voluntary destruction of the orig- inal will in it authorize the introduction of a copy. Goxe v. SJceen, '■> Ired., 443. 10. Und ir the book debt law, a' plaintiff may prove by his own oath a balance due to' him of sixty dollars or under, although his account produced appears to have been originally for more than sixty dollars, t is reduced by en drtS belo$ that amount. McWilliams v- Cosby, i Ired., 111). 11. Under the book debt law. in order to entitle the party to recover, he must swear not only that he "sold," but also thai he actually '•delivered" the articles, for the price of which the suit is brought; AdMnson v. Simmons, 11 Ired.-,- 416. 1'2, Under the book debt act, the book and oath are only evi- dence id' small articles, which have been delivered within two years, but they are nr.t evidence that the book contains all the credits and a full and true account of ah the di alings between the parties, so as to show thatnothing is due to the other party, and to disprove all of his chain, except such items as are stated in the book, upon the ground that it contains all just credits, and consequently sets forth all the amount to which the other party is entitled Alexander v. Smoot, L3 Ired., 461. See (Justices of the Peace — Of their jurisdiction, judgment and execution, 108.) BOUNDARY. I. Wbose province it is to ascertain I IV. Lines actually run and rHarked. boundary. V. Course and distance called lor. II. Natural objects tailed for. ! f-f. Parol evidence in boundary cases. Ill Lines of another tract called for. I. WHOSE PROVINCE IT IS TO ASCERTAIN BOUNDARY. I. Boundary is a question of fact, or at least of law and fact Combined, and is to be decided by the jury and not the court; mil questions of boundary, like other questions of fact, depend 1 i>"]i their own particular circumstances, when- every shade of 184 BOUNDARY.— I-II. evidence, and every, the most minute, circumstance may product- its effect. The artificial rules, respecting boundary, are in- tended only as guides in the application of circumstances, and not as fixed laws to be applied indiscriminately in all cases. Orbisan v. Morrison, 3 Murph, 551. 2. In questions of boundary, as in others, it is the province of the court to expound to the jury the law connected with the facts under discussion, but not to express an opinion on the facts, as that is prohibited by the act of 1796. Ibid. S. P. Tate v. Greenlee, 3 Murph., 556. (See Kev. Code, ch. 31, sec. 130.) 3. What are the termini or boundaries of a grant or deed is a matter of law for the court; but where they are is matter of fact for the jury. Totem v. Paine, 4 Hawks, 64. 4. The meaning of a deed, as to what land it covers, is a ques- tion of law to be decided by the court. What are the termini of the lines is a point of construction; where they arc is a question of fact. Therefore (7 was held to be error for the court to in- struct the jury, that where there was an irreconeileable differ- ence between a nutural boundary and a marked line, it was matter of evidence and not of construction. Hurley v. Morgan, 1 Dev. and Bat., 425. 5. Where the question on the trial was as to the boundary of a town lot, and the deed under which one of the parties claimed contained two descriptions, one saying it "adjoined" a certain other lot, and the other giving a different statement, the court did not err in leaving it to the jury to decide which description they thought was intended by the parties to the deed; whether the parties in using the word "adjoining" might not have meant "near," as the word is sometimes used in common parlance. Massey v. Belisle, 2 Ired., 170. 6. What are the boundaries of a tract of land is a question of law, being a mere question of construction; but where a line is, and what are the facts must, of course, be found by the jury. Burnett v. Thompson, 1.". [red., 379. 7. What are the boundaries of a tract of land is a question of law for the court; but tela rr those boundaries are is a question of fact for the jury. MarshaM v. Fisher, 1 Jones, 111. See (Boundary — Natural objects called for, 18.) II. NATURAL OBJECTS CALLED FOR. 1. The last line being "thence along the river to the begin uing," the river is the boundary, although the line coming to- wards tin- river called for a "white oak" as its termination, it being half a mile distant from the river. Sandifer v. Fos- ter, 1 Hay., 237, (271.) S. P., Hartsfield v. Westbrook, Ibid, 25S, (2!) 7.) MePhaul v. Gilchrist, 7 Ired'., 169. BOUNDARY.— II. 185 2. When a natural boundary, and courses and distances are all given in a deed, the natural boundary will prevail, in case of a variance; and in doubtful cases, a regard for this preference must always be observed. Pollock v. Harris. 1 Hay., 2"c'. (201.) S. P., -v. Beaitty, Ibid, 376, (432.) Withersjpoon v. Blanks, Ibid, 496, (571|j) S. C, 2 Hay., 75,(242) and Tay. 110,(64.) Hammond v. McOlaughon, 2 Hay., 07, (234.) S. 0., Tay. 136, (84,) Swain v. Evil, 2 Hay., 139, (312) and 179, (374.) 3. The natural boundary is to be followed if it can be ascer- tained; but if the jury doubt which is the natural boundary, and are satisfied from the evidence that the artificial boundary was considered bv the proprietor the true one, they may so find. Sasser v. Afford, 2 Hay., 148, (322.) 4. The lines called for were "east 177 poles to an oak, thence southwardly the various courses of the river." There was a marked oak at the end of the distance; and the river, from the point where a direct line from the oak would intersect it, ran southwardly. If the east line go directly to the river from the point of intersection, the river would run westwardly until op- posite the oak. The jury were instructed to find the line to the oak, and thence southwardly to the river, if they believed that to be the. real line run when the original survey was made. Pendt r v. Coor, Tay. 315, (140.) S C, 2 Hay., 183. (382,) 5. Where the patent described the land as lying on the north side of a river, and the line in dispute called for a* "a pine on the marsh branch, then along the said branch 320 poles, thence to the beginning," and the branch meets the river at a shorter distance, it was held that the branch was the boundary, and the mouth of it the corner of the land covered by the patent, and that the distance was to be disregarded. Carroway v. Withering- ton, N. C. Term 1!., 275, (694.) (5. Whenever a natural boundary is called for in a patent or deed, the line must terminate at it, however wide it may be of the course and distance specified Cherry v. Slade, 3 Murph., 7. Wherever the particular description in a grant restrains the; general cue to natural boundaries, the general description is confined to them, when they can he shown; for it is the legiti- mate object of a particular description to designate, with more certainty and precision, what the parties suppose to be vague and ambiguous in the general bne. Tatum v. Saivyer, 2 Hawks, 226. ■S. A call for " 171 poles to Roanoke river." terminates at the margin or bank of the river, without regard to distance: and the intersection of the line with the river is the point, from which the next line commences. Hbrton v. Rascoe, '■> HawKS, 21. '.). Lines and courses described as "north 12° east 530 1*6 BOUNDARY.— II, poles, then alone; the thoroughfare, &c, shall run to the thoroughfare, without regard to course and distance. Ibid. 10. Where there is a call tor natural objects, and also for course and distance", the former are the termini, and the latter merely pointers or guides to it; and therefore, where the natural 5 object is unique, or has properties peculiar to'itself, course and distance are disregarded; but where there are several natural objects, each answering the description, course and distance may be adverted to, in order to ascertain which is the true object; for in such case they do not control a natural boundary, but only serve to explain a latent ambiguity. Tatem v. Paine, 4 Hawks. 64. 11. A call in a grant, from a pond or river "west up the river to a stake," is in law equivalent to "with the river," and the line must pursue the course of the stream; this sense of the words might possibly be controlled by a call for a line of marked trees,- or a visible and permanent marked corner, and'a meaning there- by given to them equivalent te "up." but not "'with," the river, but by no call less certain can it be controlled. Rogers v. Mabt 1 Dev., 1st). 12. A swamp is a natural boundary, and if a deed calls for one, the course ami distance must be disregarded. But in such a call, whether the margin of the swamp, or the run of it, is intend d, is a matter of fact which is. upon the evidence offered, to be found By the jury. Brooks v. Britt, 4 Pev., 481. 13. As a general ride in questions of boundary, a natural object has a preference over marked lines and corners and will control them, When the natural object is of such a nature as cannot easily be mistaken by the parties, either in name or situ- ation, as in the case of a river or creek. But the reason of this rule does not apply to ver\ small streams, which either have no names, or have formerly had a different name from that which they now bear. With respect to these it is open to evidence, which stream the parties.meant by a particular name, and the jury, if satisfied of the fa< f. from pr&bf of possession or the like, may find a stream to be- the one mean* although not the one bearingthe name mentioned in the deed: Hurley v. Morgan, 1 Pev. and Bat., 425. 44. Where a grant called for a "beginning at a pine at the Sound side, and running thence along the sound and marsh S. 36° E. 220 poles, to the head of a bay, which Avas out of the sound," it was helil, that the sound was the boundary: and that such a call could not be departed from to follow mere course and distance, under any circumstances. Slade v. A'iW, 2 Dev. and Bat., (it. 1">. Where a deed calls for a line alone,- the bank ot a river, and after the dale of the d 1 the bank of the river is changed by excessive floods producing violent and. visible alterations BOUNDARY.— II. 18?" the boundary will not shift with the change of the river, but will be where the bank was at the date of the deed. Lynch v Men, i Dev. and Bat, 62. 16. Where a deed contains a. double description "along th< river," and "a marked line," the river is the more important description, and will control the marked line. Ibid, 17. If the call of a grant be '-up a pocosin and branch N. 71 W. 45 poles, thence al'OUg said branch and joining- Keith's land N. 15 W. 98 poles, thence N 66 W. 87 poles to a gum near -the branch," and there is nothing to show a discrepancy in the ob- jects called for, to wit, the poeosin and branch,' - the only qtie&- tion is. whether the branch, as a distinct natural object, in ltsell defined and appropriate for the lint.' of a ] atent. is tb be followed in preference to the mathematical description by course and dis- tance, and if is clearly settled that it is. Sedan v. Chesnut, 4 Dev. and bat.. 335. 18. The construction of a deal, upon the question of boundary, is as much a legal question as upon any other point, although it is the province oi' the jury to say which, or where situate, may be the particular tree, stone or stream called! for; and it is a prin- ciple of construction clearly settled that a natural and permanent object shall be (he boundary in preference to the line designated by course and distance. It is true, that the call tor a natural boundary may he, itself vague or imperfect, or even contradic- tory; as for a stream, where there arc two of the same name, or it be uncertain' which oi' the two bears the name, or for two natural objects, for example a branch and pocosin, which, upon evidence, appear not to be identical, but to be at different places; then, necessarily, the ease is open for evidence to the jury, as to which was the object meant, and by which the survey was actually made. Ibid. 19. AVhen a grant describes a tract of land as lying on a river, and beginning below the mouth of a branch, and the last line but one calls for a tree on the river, and thence up the river to the beginning, these termini independent of the other calls of the grant for the branch, clearly fix the beginning of the survey on the river. Hid. 20. A grant of land, bounded in terms by a river or creek, not navigable, carries the land of the grantee usque ad fiiwm a ji'. I hat is to the middle or thread of the stream. WiUiams v. Buchanan, 1 Ired., 535. 21. A savanna, which is a natural open meadow, not uncom- mon in the lower part of the State, is a natural boundary, in the sens-- in which that term is used in the construction of deeds. Staplefordv. Brinson, 2 Ired.. .'ill. 22. Where a grant called for certain courses and distances. and from the third corner: '-thence X. 87 c W. 111!) poles to a hickory, thence the courses of the swamp to the beginning." it 188 BOUNDARY.— II. was held, that though the distance from the third corner to the swamp gave out nine chains from the swamp, and no hickory was to lie found, nor was there any proof of its existence, yet the line should be extended to the swamp, and then pursue its courses to the beginning; and, further, that the declaration of the owner of the land, that his fourth line ran from the termi- nation of the distance mentioned in the third line, straight to the beginning, did not of itself divest him of his title to the land, lving between that line and the swamp. McPhaul v. Gilchrist, 7 Ired., 169. 23. Where a grant begins on a lake, and then runs a certain course and distance, thence "with the windings of the lake water to the. beginning ;" it loas held that though the distance mentioned in the third line should fail before the lake was reached, yet it must be continued in a direct course to the lake, and then the boundary must be along the lake. President and Directors of the Literary Fiend v. Clark, 9 Ired., 58. 24. A plat, annexed to a grant, cannot control the calls of the grant, where it does not lay down a natural boundary therein called for. Ibid. 25. Where a swamp is called for in the description of a grant, and the question is left doubtful which of three conflicting local- ities is the proper one, a call for a course " westwardly," to the swamp does not mean necessarily a " clue west course," but the jury may be governed by other considerations in seeking for the true locality of the terminus of the line and the swamp. Spruill Davenport, 1 Jones, 203. 26. A call, from the mouth of a swamp "down a swash," to the mouth of another swamp, was held to mean a straight line from one point to the other, through the swash. Burnett v. Thompson, 6 Jones, 210. S. ('. and'S. P., 7 Jones, 407._ 27. Where a creek is called for in a deed, as the terminus of a line, and there is no diverging course, and no particular object on the creek called for, the creek must he reached by the short- est direct route. Caraway v. Clancy, 6 Jones, 361. 28. Where a deed called for "an old line down a bottom to a forked white oak," and there was no evidence as to the old line, but there was evidence as to the existence of two bottoms ex- tending from the point designated towards the place aimed at, it was held to lie proper lor tin- judge to leave it to the jury, to determine which of the two bottoms was the one called for. — Hill v. Mason. 7 Jones, 551. 29. In ascertaining the boundaries of a tract of land, one kind of natural objects called for is not, as a matter of law, entitled to more respect, or of more importance than another. Pattern yi Alexander, 7 Jones, 603. 30 Where a witness testified that a certain unmarked pine had been pointed out to him by a person, since dead, as the cor-- BOUNDARY.— II.-III. 189 ner of a certain grant, and there were five particulars^ in which the description in the grant calling for natural objects, were sup- ported by the facts proved; ittuas held, that it was error in the judge to charge that there was no evidence of the location of the grant. McDowell v. CashiU, 8 Jones, 158. 31. Whether the rule, that where an unnavigable stream or public highway is called for, the line runs to the middle of the stream or highway, applies to a private way quaere ? Hays v. Asketo, 8 Jones, 226. 32. Where the beginning corner of a deed was a tree stand- ing on the edge oi an avenue, and thence several calls to a road, and "thence down said road to my avenue, and thence down my avenue to the beginning," "reserving forever twenty feet for my avenue," it was held, that this reservation explained the meaning "f the grantor to be, to run to the middle of the ave- nue, ami thence down it in the middle, to a point opposite to the beginning, and then to the beginning. Ibid. See (Boundary — Course and distance, 11.) III. LINES OF ANOTHER TRACT CALLED FOR. 1. If the line of another tract be called for, and the distance called for will not reach it, still you must go to the line called for, if it can be found. Miller v. White, 2 Hay., 160, (345,) S. C. Tar., 161, (100) and 309, (135.) S. P. Smith v. Mufpheu, 2 Hay.,* is:;. (382.) 2. The call was a certain course and distance to A B's line, thence a certain course and distance "along his line" to, &c. In this latter line the course is to be disregarded, and the boun- dary is the line of A B. — ■ v. Heritage, i Hay., 327, (496.) 3. Where a patent calls for a stake in the line of another patent and then a certain course "with or near" a line of the latter, it must stop at the intersection with the first line of the latter, if the second line would run from that point with or near the line of the patent called for, but would not do so, if run from the intersection with the second line. Bradberry v. Hooks, N, C. Term, R., 1 (443.) 4. Under the actof 1791, it is sufficient to show that, by common reputation, a tract of land lias certain known and visible boun- daries, although those lines and boundaries belong to adjacent tracts, and were nut made for the land in dispute nor in any deed thereof are recognised as the lines of such tract. Tor rep- utation and hearsay are, of themselves, evidence of boundary. Tad- v. I Hawks, 45. (See Rev. Code ch. 65, sec. 2. 5. A tract of land was granted in 1761. and in 1784 another adjacenl trad was granted, which called fir a course "along the "Id line to tin' beginning." In 17!' I a eoiper and line were marked, as the comer and line of the tract ot 17t>4, parallel 96 BOUNDARY.— III. to the old line, and north of it; it was held, that the line marked in 17114 was not conclusive, and that if the jury found where the old line was, the plaintiff would go to it, notwithstanding the corner and line marked as his line in 17'J4. Fruit v. Brower, 2 Hawks, 337. (i. Where the plaintiff and defendairl claimed under two differ- ent grants, the junior of which called for the line of the elder, and a line of marked trees was found corresponding in age with the junior grant, it was held, that this was not evidence of the boundary of the elder grant. Sasser v. Herring, 3 Dev., 340. 7. In no case would the deed of, oreven .a grant to, the owner, calling for the lines of another tract, headmitted in favor of one •.daiming under that grantor deed, or even in favor of one claim- ing under another grant, calling for the lines of that, made at the time when such party to the deed or grant was owner of the other tract, Ibid. 8. When a call in a grant was, " running N. 15° W. 220 poles, to a black oak near his, the grantee's, own line, and the black oak could not be found, nor its locality proved, (7 was held, that the word " near,'' would not carry the fine 30 poles further, to reach another tract of the grantees, but that it must be stopped at the cud of th-t distance mentioned in the grant, Harry y. Graham,, 1 Dev. and Bat., 76. 9. A posterior line of a grant will never be reversed, for the purpose of showing the termination of a prior one, unless the description of the posterior be more specific than that of the prior, and unless, from the posterior a mistake in the prior can be clearly shown. Ibid. 10. In locating a grant, a call for the lines of another person ought to control the course and distance, when, at the time of the survy. those linos were well know or established; but if they were aever marked, or if there had been no possession ac- cording to them, nor any previous claim or reputation, then a call for them shyu.ld be disregarded, and the course and distance pursued. Carsonv. Burnett, 1 Dev. and Bat,, 54(5. 11. A grant, calling tor a comer of an adjoining grant and three of its iines, is. in the absence of proof that it was actually run differently, to lie confined to them; and the fact that the grantee, after its date, executed a deed for the adjoining tract which did not refer to cither of the grants, and called for the same corner and one of the three above mentioned lines of his grant, and corresponded nearly with the other two, is not sufli- cient to control the calls of his grant, ^lanigan v. Lee ,2 Dev. and Bat. 127. 12. A deed executed by the owner of two adjoining tracts, for one of them, but containing no averment as to the boundaries of the other, does not estop him from showing the true bounda- ries of the other tract. Ibid. BOUNDARY.— 111. 191 fo. Where a line of a granf is called for, then along that ami ^mother line of tlie same grant, to a corner of another in such second line, and it is not certain whether the first or third line of the grant be meant by the first call, the corner of the second grant must be reached, whether by way of the first or third line of the firet "-rant; and the corner of the second grant must be reaqhed, whether it is immediately on the line of the first grant, or some short distance from it. Hough v. Dumas, 1 Dev. and Bat, 328, 14. When a grant calls for a corner of another, but leaves it uncertain which of two particular corners is meant, the second call of the grant may be resorted tojfor the purpose of removing the uncertainty and ascertaining which of the two was intended Und- id. Where part of the description of + 1k' boundary of a tract of land, contained in a grant, was from a certain point, "south with A. B.'s line 310 poles to C. D.'s old corner," and -V. B.'s line did not reach C. D.'s corner, nor run in the direction towards it, but at the end of 310 polos on A. B.'s line, you had to run nearly at right angles to arrive at ('. l).'s corner; it was held, that you must run on A, D.'s line ,310 poles, and then a straight line to ( '. l>.'s corner, as by so doing you would besl conform to the whole description of the deed, though you would run two lines instead of one, as called for. Skultz v. Young, 3 Ired., 385. l(i. Where, in running a line, another line is called for, and the identity of a line of another tract called for in a deed, was unsatisfactory, and to reach it required a great departure from the course and distance; it was held, to have been error in the Judge to assume that the line had been proved, and to charge that it must be run to, disre- garding course and distance. The fact, whether it was the line of the tract called for, ought to have been left to be decided by the jury. Rodman v. Oaylord, 7 Jones, 262. IV. LINES ACTUALLY RUN AND MARKED. 1. Marked lines proved to have been actually run and marked, at the time of the original survey, will control the distance men- tioned in a -rant. Standen v. Bains, 1 Hay., 238, (273.) S. P., Bradford v. HiU, Ibid, 22, (30 ) v. Beatty, Ibid, 376, (432.) Bustin v. Christee, 2 Hay.. 99, (260.) S. C, 'lay. 116, (68.) 2. The marked lines, actually made as the boundary, are to be followed vaflier than the lines mentioned in the patent, when they disagree, Tersonv. Roundtree, Mar. 18, (1.) S. C. 1 Hay., 378, (436.) 3. If a deed call for SO poles to a certain tree, as a corner, and such tree stands at the distance id' L60 poles, that shall he the corner. no1 rithstanding proof that the surveyor, after making BOUNDARY.— IV. 193 the corner, cut off 80 poles to get the exact quantity. Johnston v. House, 2 Hay... 801, (491.) 4. You may depart from a line described in a patent or deed, to follow a marked line which the jury believe is the true one. Blount v. Benbury, 2 May. :;.">:;. (542.) 5. Whenever it ran be proved that there was a line actually run by a surveyor and marked, and a corner made, the person claiming under the patent or deed shall hold accordingly, not- withstanding a mistaken description in the patent or deed. Cherry v. Blade, '■'< Murph., .S2. li. In questions- of boundary, marked lines or trees are more certain than course or distance, and therefore shall control them ; accordingly when there has been a long and continued posses- sion up to lines variant from those called for in the grant, and it appears that such lines were recognized as the trm lines of the grant, 1 >y several adjoining patents, it ought to be- submit tod to the jury, for them to draw such inferences as theymay think proper from these tacts. McNeil v. Mousey, 3 Hawks, 91. 7. Where the parties to a deed intended to- convey only land te> which the vendor had title, and also that it should set out the boundaries i>f the grant to him, but the land was specially sur- veyed and the corners marked, and the (feed made according to the survey, its courses are not to be controlled by those of the grant, and- if it cover more land than the grant, it is color of title as to the excess. Ingram v. Colson, 3 L)ev., 520. 8: Where, on the trial of an ejectment, it appeared that one of the corner trees could not now be found, by running the'eourse and distance called for, but it was proved that many years ago a former owner of the land declared that a stuWp in a certain pond was his cornel, it was held that if this tree had been marked as. a corner at the time of the original survey, then it would control the course and distance; but if subsequently marked, then the course and distance would not be controlled by it. Jcehour v. Bives, 10 Ired., 256. 9. Where a deed described a corner, which had been marked, as being on the east side of a creek, it is admissible for the party to prove, by competent testimony, that the corner was in fact on the loesi side of the creek. Hauser v. Belfon, 10 Ired., 358. 1<1. Whether a marked corner, made at the time when the deed was i xecuted, but not called for in the deed, was intended to be adopted as a corner of the land, or whether course and distance were, intended by the bargainor to be the true descrip- tion, is a question of fact to be submitted to the jury, with an in- struction that the course and distance must prevail, unless it can be shown that the marked corner was the one which the bar- gainor intended to adopt. So/ret v. 1 fart map, 5 Jones, 185. 11. Whether the rule, that "when there was a line actually run by the surveyor, which was marked and a corner made, the 13 194 BOUNDARY— IV. party claiming under the patent or deed shall hold accordingly, notwithstanding a mistaken description in the patent or deed*,'' is not confined to grants from the State and ancient deeds, quaere. Ibid. 12 In locating a patent of ancient date, marked trees, corres- ponding in age to the patent, may be shown, though not called for in the patent. Topping v. Sadler, 5 Jones, 357. 13. Whether the running and marking of a line, variant from that answering the calls of a deed of mesne conveyance, can at all control it, quaere. But certainly, no running and marking not contemporaneous with such deed can be allowed to have such effect. Admissions of the parties that a particular line was the true one between the tracts, and acts of ownership up to it by the claimants on both sides of it, do not perse tend to show such contemporaneous running and marking the line. Caraway v. Chancy, 6 Jones, 361. 13. 'Where a deed called lor a stone, and in the designated course pointers corresponding in age with the deed were found around aspot,(no stone being there,) anda marked line of trees were also found, corresponding in age with the deed, and correspond- ing with the next course called for, and leading from the spot so designated by the pointers, it was held that the deed should be construed as if read a stone "marked as a corner by pointers," and such point was to be gone to irrespective of distance. Safret v. Hart), urn. 7 .Tones 199. 15. Where the first line, running from an admitted beginning corner, is established, and there is a line of marked trees corres- ponding in age with the deed and with the course, called for, running to The third corner, which is established, the second corner may befixed by reversing the second line, and the point of intersection of the latter line with the former will be adopted, irrespective of course and distance. Ibid. l(j. 'the running and marking a line in 1825, by a surveyor, who is now dead, under a deed made in 1782, is no proof of the true positiOB'Oi shit line, no is ts e\> Lance ci the v n ition el the compass .at different periods of the survey. Hodman v. Gayhrd.,1 Jxmes, 262. 17. Where course and distance called for in a grant arc pro- posed to 1» controlled by the proof < f marked trees or natural objects, actually run to and marked on the occasion of the orig- inal survey, it was held that the substituted description ought to be sufficiently; eertain of itself to identify the land. Adding^ ton v. Jones, 7 Jones 582. 18. Where a white (blank) was called for as a corn< \ and a white oak was pointed out nearly in the course, by a marked line leading to it, and by other circumstances, it was held, to be a proper question to be left to the jury, whether the white oak was the corner intended. Dobson v. Fbdry, 8 Jones, 495. BOUNDARY.— IV.-V. 195 See (Boundary — Lines of another tract called for, 6.) (Eject- ment — Of the declaration, 24.) V. COURSE AND DISTANCE CALLED FOR. 1. In the case of boundaries given in deeds and patents, the courses and distances therein mentioned must be observed, •except where a natural boundary is called for and shown, or where marked lines and courses can be proved as the original survey. Bradford v. Hill 1 Hay., 22, (30.) 2. The call, "thence to a corner, &c," means a direct line from the former to the latter point. Bryant v. Vinson, 2 Hay., .;-], (145.) 3. Where there are no natural boundaries called for, nor marked trees nor corners to bo found, nor the places where they •once stood ascertained and identified by evidence; or where no lines or corners of an adjacent tract are called for, the courses and distances specified in the deed or patent must be followed. Cherry v. Slade, 3 Murph., 82. •1. If one grant one thousand acres of land and no more, according to certain lines which in fact include two thousand acres, the Litter quantity shall pass, because the butts and bounds are more certain than the number of acres; this, in- deed, is in no way material, except where tic boundaries are doubtful, when it is a circumstance. Reddiclc v. Legi/at, 3 Murph., 539. 5. .V mistake in the course or distance of a deed should not lie permitted to disappoint .the intent of tin- parties, if that intent appear, and if the means for correcting the mistake lie furnish d, either by a more certain description m the same deed, or by reference to another deed containing a more certain de- scription. Campbell v. McArtlmr, 2 Hawks, 33. 6. '!'! oursi mid distance given in a. deed cannot be altered byparol evidence of transactions, ; tie those transactions tend to prove the erection of some monument or boundary cotempo- n: ii usly with the execution of the deed. Reed v. Shenck, 2 Dev.. 4 1 5. 7. The terminus of a line must be either the distance called for in the deed, or some permanent monument which will endure for yi ' s,and the erection of which was cotemporaneous with the execul on of the deed. A stake is not such a monument; and evidein e of its erection, when the laud was surveyed, is not admissible to control the course ami distance. Reed v. ScJnn I: 3 Dev., G5. 8. Course and distance from a given point contain a certain description in themselves ; and, therefore, should never lie de- parted from, unless there be something else, which proves that. the course and distance stated in the deed was thus stated by mistake. Harry v. Graham, 1 Dev. and Bat,, 76. 196 BOUNDARY.— V. 9. In questions of boundary, the distance called for in a cer- tain line in the deed must govern, unless the party can show that a corner was made beyond such distance. In order to fix the terminus of such line, he will not be allowed to reverse a subsequent/ line, unless, -by so doing, there be something to render the means of identifying it more certain than the calls of the deed; 1 nit if it appear that the subsequent line was actually run and marked, the prior line may be extended to it in order to ascertain the true corner:. E'vng v. King, ± Dev. and Bat, 164.. 10. Where a. grant calls for a. certain course from one corner to another, without saying by a line of marked trees, and the coiners arc both established, the direct line from the one corner to the other is the boundary, although there may be a line of marked trees between the corners, but varying in some places from the direct line; but if in the description aline of marked trees be called for, in addition to the course, the line of marked trees is then to be followed, though variant from the course. Hough v. Horn, 4 Dev. and Bat.,-228. 11. When a certain course is called for, in a grant, along a public road from one corner to another, and the corners are identified, the public road is the boundary, though varying from the course; and if there "be two tracks of the road for part of the distance, it is for the jury to ascertain which track was the pub- lic road at the time of the grant. Ibid. 13. It is a settled rule of construction ifi bfiis State that when •'stakes" are mentioned in a deed, simply, or with no other added description than that of course and distance, they are in- tended by the parties, and so understood, .to designate imaginary points. Massey v. Belisles 2 Ired., 170.- 13. When a course is resorted to, for want of a better guide, to find the terminus or boundary of a tract of land, it is the course as it existed at the time, to which the description of the tract of laud refers If it appear that, because of the magnetic varia- tion, the coarse is not the same with that which the needle now points out, it is the duty of the jury to make allowance for such variation, in order to ascertain the true original line. Norc&m v. Leary, '■> [red., KJ. 14. Where nothing bu1 course and distance are called for in a deed, parol evidence is m 1 admissible to show that a line of marked trees, not called for in the deed, is the true boundary. Wynnes. Alexander, 7 [red., 237. 15. When one corner is established and the course and dis- tance only given, and the next corner called for in the deed is also established, the line must run directly from one corner to the other, although a line of marked trees may be found between the corners, but varying in some places from the direct line ; nor is it sufficient to make an exception to this rule, that the BOUNDARY.— V. 197 trees were marked as the line by the parties, at the time when the deed was ex< rated between them. Ibid.. 16. In ascertaining' the boundaries of a grant, when a point is described, as being a given distance from a certain other point, a direct line is implied, unless there be something to rebut the implication. And the circumstance that both points are on the same river has no tendency to destroy the implication. Slade v, ■Etheridye, L3 [red., 353. 17. In a question of boundary, the distance called for by the deed must prevail, unless there be some. other description less liable to mistake, to control it. As, when the distance called for was •■ two hundred feet," and the premises described as the "Winched lots." it was held, that the line must stop at the end of two hundred feet, though it did not reach the limit of the Winched lots. Kissamv. Gayhrd, Busb. 116. 18. Course and distance prevail, in questions of boundary, un- less controlled by some more certain description. tSjiriiillv. Davenport, Busb., 134. 19. A mistake in the course or distance, contained in the calls, of a grant, will not be permitted to disappoint the intent of the parties, if that intent appear, and the means of correcting the mistake be furnished, either by a more certain description in the grant, as by a plat annexed to such grant, and referred to in the same. Gooperv. White, 1 Jones, 389. 20. Where one of the calls in a grant was "S. eighty degrees E.," but in the plat and certificate of survey annexed, the same call was " S. eight degrees E.," and it appeared that to run ac- cording to the grant alone the lines would cross each other several times, dividing the land into three distinct parcels, and would only contain about half the number of acres called for, aud that by so running the lines would never meet at the begin- ning ; but by running according to the plat and survey a con- sistent diagram would l>e made, embracing the proper quantity: it was held, that the latter description must prevail. Ibid. 21. Where the owners of adjacent tracts of land ran and staked off a line, supposing it to be the true line between them, and had so considered it for more'than 20 years, but there was no ac- tual possession of the part included between this line ami the I true om . it was lull, that tin- original rights of the parties were ^not thereby altered, and the line according to the course called for wdl be the true line by which such rights must be settled. Carroway v. Chawey, 2 Jones, 170. 22. In ascertaining a boundary line on a given course, allow- ance must be made for a variation of the needle, when the fact of a variation is proved. Gayhrd v. Gayhrd, 3 Jones, 3l>7. 23. A\ here the beginning call in a grantis for a stake, and all the other nails are for course and distance, the location of the hmJ is impossible, because the beginning being a stake, an im- 198 BOUNDARY.— V. -VI, aginary point, it cannot be identified. Mann v. Taylor, 4 Jones,. 272. 24. A description of land calling for a goint or stake as a he- ■ ginning, and course and distance for all the other boundaries, is too vague to permit any land to be identified under it. Archi- bald v. Davis, 5 Jones, 322. 25. Where the contest between the parties was, whether the be- ginning corner of a deed, calling for courses and distances, was at one point or at another, it was held to be competent to show that if it commenced at one oi the points contended fur, it would dis- turb and conflict with ancient and well established boundaries of other tracts, for the purpose of repelling the evidence that such was the tfrue place for the beginning. Hubbs v. Outlaw, &- Jones, 174. 26. Surveys made on the occasion of bringing into market the Cherokee lands, and filed in the office of the Secretary of State, but which are without system, certainty or consistency, lo&re held not to be sufficient to overrule the calls of a grant, as to course and distance. Addingtonv. Jones, 7 Jones, 582. 27. A survey made of Chrokee lands, at the instance of an in- dividual, independent of the action of the commissioners empow- ered to survey and sell the lands, was held not to be sufficient to control or contradict' the calls of a grant as to course and dis- tance. Ibid. 28. Where the second corner of a boundai-y is clearly estab- lished, the first may be ascertained by running the course re- versed, and measuring on it the distance called for. Dobson v. Finley T 8 Jones, 495. See (Deed — Of the construction of deeds- and their various parts, 30.) VI. OF PAROL EVIDENCE IN BOUNDARY CASES. 1. Any mistake or wrong description of the land in the plat or patent may be rectified by parol testimony, and the true location of "the land be proved by testimony dehors the patent. Lqften v. Heath, 2 Hay,. 347, (531.) 2. Marked lines ana corners, actually run and made, maybe proved by parol, though not called for in a deed ; but this rule, which is a violation of principle, shall not be carried further, so as to permit parol evidence to contradict or vary the description, where there is no mark or vestige left; and therefore, where a deed called for a course from a point on a river, different from the course of the river and not calling for it, parol' evidence should not be received to vary the description, and show that the line actually run, at the time of the grant, was the river. — Sladev. Green, 2 Hawks, 218. 3.. Common reputation is evidence in questions of boundary;. BOUNDARY.— VI. 199 and in ascertaining Lod Granville's line, astronomical obser- vation is a more certain mode (the latitude of the line being given) than an actual running of the line, from a certain point on the seashore designated as a beginning. Taylor v. Shuford, 4 Hawks, 116. 4. The act of 1791, making twenty-one years possession under visible bondaries, without a grant, conclusive against the State, is founded upon the supposed loss of title papers setting forth those boundaries; but possession for twenty -one years up to a visible line, although it may be evidence in ascertaining the boundaries set forth in a deed, is not conclusive that the visible line is the true boundary. Rhern v. Jackson* 2 Dev. 187. (See Kev. Code, eh. 65, sec. 2.) 5. Parol evidence, to control the description of land in a deed, is in no case admissible, unless where monuments of boundary were erected at the execution of the deed. If the description in the deed varies from these monuments, the former may be controlled by the latter. Reed v. Schench, 2 Dev., 415. 6. Where the boundaries of land never were marked, nothing can alter the course and distance in the deed. Therefore, where a deed callecLfor a front of six poles, and there was no evidence that the line was run and marked, parol evidence cannot be ad- mitt ted to show that six poles and six feet were meant. Ibid. 7. In questions of boundary, the declarations of a deceased person are admissible in evidence ; but not those of a person who has removed from the State. Hartzog v. Hubbard, 2 Dev. and Bat, 241. 8. In questions of boundary, hearsay evidence, post litem motam, is inadmissible. Dancy v. Sugg, 2 Dev. and Bat., 515. 9. In this country, traditionary evidence is received in regard to private boundary; but we require that it should have some- thing definite to which it can adhere, or that it should be sup- ported by proof of corresponding acquiescence or enjoyment. A mere report, or neighborhood reputation, unfortified by evi- dence of enjoyment or acquiescence, that a man's paper title covers land, is too slight and unsatisfactory to be received as evidence in questions of boundary. MendenhaU v. Cassete, 3 Dev. and Bat., 49. 10. Parol evidence is inadmissible to aid, or add to, the de- scription of land in a deed or other instrument. It can only be used to point out and identify the thing sufficiently specified in the deed, or other instrument, Archibald v. Davis; 5 Jones, 322. 11. Where one of the calls of a grant was for "theheadof Spel- lars creek," it ivas held, to be competent to show by parol evi- dence, where the head of "Spellar's creek" was; for such testi- mony would be the statement of a fact, and not merely the ex- pression of an opinion. Waters v. Simmons, 7 Jones, 541. 12. The intention of a grantor, in describing a corner or line. 200 BOUNDARY.— VI.— BRIDGES.— BROKER. cannot be set up by parol evidence in opposition to the plain terms of the deed. Potion v. Alexander, 7 Jones, 603. 13. Evidence by reputation, as well as evidence by hearsay, may, under certain circumstances, be given in evidence upon questions of boundary. In the latter the statement proposed to be given is not admissible unless the peron be dead"-; but it is not so as to evidence by reputation. Hence old grants or deeds of adjoining tracts, calling for particular lines nr cor- ners, may be admitted as evidence by reputation of the existence of such lines or corners, whether the parties to such old grants or deeds be living or dead. Dobson v. Fhdey, 8 Jones, 495. BRIDGES. See (Ferry and Toll bridge.) (Highway, 6-7.) (Indictment — When an indictment will lie. 15-62.) (Indictment — Form an 6 matters relating thereto, 113.) • BROKER. 1. It is not to be assumed that a bill broker, undertaking to negotiate notes in the market for another person, upon the best terms in his power, took them on his own account, especially when a third person is found to be the holder, and it appears that he acted as broker in good faith. Long v. Gantley, 4 Dev. and Bat., 313. 2. A bill broker may be constituted the agent of the buyer and also of the seller of notes, and in that character, by acting for each of his principals in the usurious discount of a note, may make a contract, which may be an usurious one, entered into by the principals through the broker, as their common agent. Brat there is nothing in the character of a bill broker or in his trans- actions, that necessarily constitutes him the agent of both the buyer and seller of paper passing through his hands; the con- trary is to be inferred, and it is to be supposed that lie is the agent of one only, because after contracting with one, it is in- consistent with the interest of that one and with the brokers's duty to him, to 'undertake the same office f) 4. Burglary can inly be committed in a dwelling house, or such outbuildings a« are necessary or convenient to it as a dwell- ing, therefore it is net burglary, to break the door of a store, situate within three feet o'i the dwelling house, ami enclosed in the same yard, but with no entrance common to both. Stair v. Langford, 1 Dev., 253. 5. There cannot he a constructive breaking, so as to consti- tute burglary, by enticing the owner out of his house by fraud and circumvention, and thus induce him to open his door, unless the entry of the trespasser be immediate, or in so short a time that the owner or his family has not the opportunity of refasten- ing the door. Where the owner, by the strategem of the trespasser, was decoyed to a distune,- . com his house, leaving his doer unfastened, and his famffly neglected to fasten it after his departure, and the trespasser. ,.) (Indictment — In what cases an indictment will lie, 5.) (Indictment — Form and matters relating thereto, 25.) (Indict- ment. — Of the trial, verdict and judgment, 1.) (.Indictment — Plea of former acquittal or conviction, 4-12.) (Indictment — " Variance between the allegations and proof, 13.) BURMNG WOODS. See (Woods.) CARRIER.— I.-II. 203 CARRIER. r. Who are considered common car- I II Of the duties and liabilities of car- riers, riers. I. WHO AUK CONSIDERED COMMON CARRIERS. 1. A common carrier is one who undertakes to serve all per- sons indifferently for hire, in carrying goods from one place to another. Hence a person, who does not make it his ordinary employment, is not tod>e deemed a common carrier, because he agrees on one occasion to carry goods; and in such case he is bound only to ordinary care and prudence v. Jackson, 1 Hay., 14, (19.) 2. If a man's slave usually acts for him as a ferryman, the master is considered a, common carrier. Spin/ v. Farmer, 2 Hay., 339, 3. Freighters for hire upon navigable rivers are to be consid- ered as common carriers, and subject to their liabilities. The words, "dangers ol the rive] excepted," signifythe natural acci- dents incident to that navigation, not such as might be avoided by the exercise of that discretion and foresigflt which are ex- pected from persons in such? business. Williams v. Branson, 1 Murph., 417. 4- In an action against a drayman in the town of Wilming- ton, brought to charge him as a common carrier, for the loss of a trunk, the plaintiff may shew, if he can, that it was the duty of draymen in that town to cany baggage. Herring v. Uttey, 8 Jones, 270. II. OF THE DUTIES AND LIABILITIES OF CARRIERS. 1. A common carrier is liable to be sued if he refuse to carry goods for the common reward, and is liable in all events, except for the acts of God and the public enemies; but one, who under- takes only in a particular case to carry goods; is bound to exer- cise only common and usual prudence and diligence, in the per- formance of what he has undertaken, and is not answerable for accidents, which have happened notwithstanding such-prudence and diligence . v. Jackson, 1 Hay., 14, (19. ) 2. A common carrier is liable for all losses, except such as hap- pen by the act of God or the enemies of the State. All acci- dents which occur by the intervention of human means, how- ever irresistible they may be, he is liable for. Bad-house v. Sneail. 1 Murph. 173. 3. No custom among the freighters and owners of boats, on a navigable river, will excuse them from the operation of the 204 CARRIER— IT. law governing; common carriers. Adam v. Say, 3 Murphy 149. 4. The rule of diligence, which measures the liability of com- mon bailees for hire, is not that by whieb the engagement of common carriers is to be tested. The latter can be excused from the non-performance of their contracts by nothing short of the act of God, or of a public enemy. Sarrell v. Owens, 1 Dev, and Bat, 273. . r >. Where the master of a vessel undertakes to deliver articles shipped on board of his vessel, on freight, at a certain place, he cannot allege ignoranee, want of skid, or any excuse arising from human fault or human weakness,, as a defence for violating his engagement. The true question is not one of actual blame, but of legal obligation. Ibid. 6. The rule of law, that common carriers are bound as en- sttrers for the safe delivery of goods, docs aot extend to the time cf 'delivery. Boner v. Merchant's Steamboat Company, 1 Jones, 7. The captain or master of a steamboat, beisag a mere servant of the owners, is not liable as a common carrier, and cannot be sued jointly with them as such. Walston v. Myers, - r > Jones, 174. 8. An action cannot lie maintained against a railroad company as a common carrier, for the loss or destruction of goods de- posited on the road side, at a plaee where there was no regulaar station and no agent, although a conductor of a freight train had promised to stop and take them. Such deposits are at the risk of the owner, until they arc put on a freight car. Wills v. Wilmington and Weldon Railroad Company, (i Jones, 47. 9. Where an article was delivered to a common carrier to be delivered to a factor at a certain market, who hail been instructed not to sell until ordered, and the carrier delivered it to another factor at a different market, and he having no instructions con- cerning it sold it immediately, and afterwards the article rose in price; it was held that a suit lay against the carrier tor a misfea- sance, and the plaintiff was entitled to the highest price attained by the article before the suit was brought, such suit having been brought in a reasonable time; and further that the receipt of the proceeds, from the factor who sold, was bo bar to the action, but only reduced the damages to the difference between siicb pro- ceeds and the highest price at which the article might have sold. Arrington v. Wilmington and Weldon Railroad Company, 6 Jones, 68. 10. Where a master of a vessel engaged chiefly in carrying naval stores, between this State and New York city, took in charge a box of jewelry, without including- it in any bill of lad- ing, and without any contract, for the juice of carrying it, it was held, that he was only liable as an ordinary bailee, and not as a common carrier, and that as he kept it in a place Gf. ordi- nary security, im.fi was violently robbed of it, he was not guilty CARRIER.'— II. 205 of negligence, arid therefore not responsible' for the loss.- Pen- der v. Bobbins, 6 Jones, 21)7. 11. In such a case as the one just above stated if irni held, that the nature of the ninlertaking did. not bind the defendant to go on a direct voyage .from one port to the other, so as to sub- ject him for a deviation.- Ibid. 12. Where an article was carried on a railroad, and the con- signee lived sixteen miles from the road) and no agent was pre- sent to receive it. at the depot win. re it was to be delivered, and it was deposited in a warehouse belonging to the railroad i i- pany: it was held, that when so deposited the i pany wHs ex- onerated from liability, as a common carrier, and was bound only as a warehouseman for ordinary neglect. Hillictrd v. Wilmington and Wrhhni Railroad Company, ©'Jones, 343. 13. The - necessity of notice, under ordinary circumstances, to terminate the character of a common carrier, and attach that of a warehouseman, and the nature and extent of such notices 'dis- cussed but not decided. Ibid. 14. Where- machinery was consigned to the agent of a rail- road company, to be forwarded to the plaintiff over the? road, and it was negligently detained for some time, it was held, that the defendant was not liable as a common carrier for this neg- lect, but only as a bailee. Foard v. Atlantic and North Carolina Railroad Company,'^ SotteB, 235. 15. Where several pieces of machinery were shipped to the agent of a railroad company,, to be forwarded to the plaintiff, and they were described in 'the bill of lading as "three pipes in one bundle and two single pipes/' and they were delivered by the ship's agent to the defendant's agent, who had a copy of the bill of lad- ing, and by some means the direction on one of the single pipes was obliterated, so that it was not forwarded ; it teas held, that the defendant, was liable for negligence isi not forwarding such- pipe. Ibid. 1(5. Where goods are carried on a railroad from one station to another, it the owner be not ready to receive them at their destina- tion, the duty of the railroad company, as a carrii r, is discharg- ed, by putting the goods in the warehouse of the company, with- out giving notice to the owner or consignee. N< tl v. Wilmington and Weldon Railroad Company, 8 Jones, 482. 17. The agents of tin.' company at the station are n i botind to notify thi owner or consignee, living at a distance, eithei by mail or otherwise, of the arrival of the goods. Ibid. 1S8. Wie re a railroad agent, at a country station, received goods into the company's warehouse, which was an ordinary wooden house, kept fastened in the nijrht time with iron locks, holts and bars, and!" in like manner in the day time when the agent, who resided about i>wj hundred yards from it, was absent, 2% CARR1 ER.— II.— CARTW A Y. it was held to lie ordinary care which the company 'took of the goods, and that it was not liable tor a loss of them by theft. 1 bid. CARTWAY. 1. The courts have no authority to have the lands of the citi- zens taken for a cartway, without the consent of tin' owner, ex- cept in tlie instance provided for by the statute, to wit, in favor persons "settled upon er cultivating any land, to which there is no public road loading, ami no way to got to or from the same, otherthan by crossing other persons 1 land" Therefore, where there was a public road to which access might be had, though not so convenient for the petitioner, as the cartway prayed for, it was held that the cosrt could not grant the petition. Lea\. Johnston, 9 [red., 15. (See Rev. Code, ch. 101, see, 37.) 2. The owner of a tract of land, who does not reside on it, nor lias cultivated, fenced, or in any wise improved any part of it, but has only used it as a range for cattle, is not entitled to a private way over the adjoining land of others, under the act Key. Stat., eh. 104, see. 33. Curni'K v. Doxey, 3 Jones, 23. (See Rev. C tde, eh. 101, sec. 37.) 3. Under the act Rev. Stat.,, eh. 104, sic 33 ami 35, a peti- tioner " bo has acquired a right, under an order of court, to have a cartway over the Ian,! of another, and who has afterwards obtain d th ■ title to such land, has a right to discontinue and obstxicl such highway. Jacocksv. Newby,4: Jones, 266. (See Rev. »'ede. eh. 101, sec. 37 and 38.) 4. !i, the order, for laying out a cartway, the court must fix both the termini of the way. Burden v. Harmon, 7 Jones, 354. 5. Where the applicant for a cartway, over the land of another, nas already one or more convenient rights of way over the land of other persons, to the public road or other public place to which She seeks access, his application should be rejected; and if an 'order for such a cartway have been previously obtained, the cartway will he discontinued on the petition of theowner of the land, tinder the 38th section of the lOlstchapter of the Revised Code. PKmmons.v. Frisby, 1 Winst., 201. i; U a pers in la proceeding by warranl to re- cover t)i- damages done by cattle, &c, the report of the justices and freeholders as to the state of the plaintiff's fences is final and conclusive between the parties. Nelsons. Sh wart, 2 Murph., 298. S. C., 1 <' ;ir . L. R., 287, (29.) (An appeal now allowed, (See Rev. Code, ch. 48, sec. 5.) 3. The penalty under the act oi 1741. for mismarking cattle, could not lie incurred unless the offence were willfully done. Hulin v. Biles, N. C. Term R, 192,(625.) (The offence is now (punishable by indictment, see Rev. Code, eh. 34, sec, 57.) 4. Although the enclosed land, within the bounds of which the 1 1-; i ;pass by cattle is alleged to have been committed bel ug- ■ed to more than one person, yet the actual p i]'-ii ttore of the act. where the fence isinsufficii nt, are liable individually under Ltute. McKay v. Woodle, 6 [red., 352. (S< t< ch. 18, sec. i and 3.) 5. In proceedings under the act, directing how damages may b - recovered for injury done by stock to enclosed •■ rounds, if one of the parties appeal to the county court from the judgment of the justice, the ea.se must In- tried byajuryas in other suits, and there can then be no objection received to any irregularity in the the proceedings before the justice. J\ 8 Ired., 96. (See Rev. Code, ch. 48, sec. 5.) 6. A per on is not liable to indictment undei the Rev. Code, ch. 34 s -e. ]>M. For injuring cattle or other stock within h < ■■ n field, which ; s i i closed and under cultivation. State v. | 6 Jones 276. 208 I LTTLE Ac.— CEETIORAEI.— L 7. Owners of cattle in this State are not bound to keep them 1 within enclosures, so as to prevent them from going upon the Unenclosed lands of of others. Laws v. North Carolina Bailroad Company, 7 Jones 468. 8. Where a sow, having a bad reputation for eating young- poultry, which was known to her owner, was seen with a duck in her mouth, and on being chased dropped it, but immediately again ran after it, ami was shot by the owner of the duck while in such pursuit, it was held, that he was justified in killing the animal. Morse v. Nixon, 8 Jones, 35. See (Indictment— When an indictment will lie, 45-46.) (In- dictment — Form and matters relating thereto, 136.) CERTIORARI. I' When the writ iifallowaMe. tl Of proceedings in certiorari nnd the effect of the writ. III. Of the return' tff the *rii.' IV. Of the security for costs. V. Certiorari in the Supreme' Court. I. WHEN THE WRIT IS ALLOWABLE. !. Certiorari is the proper remedy in proceedings 1 by attach- ment, and not a writ (Sf error. Allen v.- Williams, ?'■- Hay, 17, 2. When the attorney of the appellant applied ia, feme to tho clerk of the county court for a transcript of the rescttd, and was told by him that he had not time then to prepare it,- but that he would attend to it in time,- but neglected to do soi-'the superior court refused a certiorari. BrickeU v. Bass, 1 Hay, 137, (157.) (How appeals are now carried up, see Rev. Code, en 4.) 3. After a party has prayed an appeal and offered his sureties, if he be defeated of the appeal by the neglect, onlission or delay of the clerk, or the contrivance of the opposite party, or by any improper conduct of the county court, he shall have his cause carried up by certiorari Chambers v. Smith, 1 11a;., 366, (420.) 4. The distinction between writs of certiorari, recordari\ false judgment pone, and accedas a curiam discussed and explained. Anonymous, 1 Hay., 469, (541.) 5. Notice must he given of a certiorari, within two terms after the judgment which is the foundation of the writ. Williams v. Gorman, 2 bay., [55. (337.) ti. Winn an appeal is not given by law, a certiorari is the roper remedy". Beardon v. Guy, 2 Hay., 245, (436>.) CERTIORARI— I. 209 7. A certiorari is not grantable to remove a cause from the county court before trial especially where the party has the right lit' appeal, ami the county court has exclusive, original jurisdiction. Street v. Clark, Tay., 15, (11.) .1 Proceedings before a single justice cannot he brought before the county court by certiorari or other writ, but only by appeal. Ab zander v. Bateman, Conf. Rep., 20, (160.) 9. An appeal being taken from the county to the superior court, ami security not having been given in proper time, tin- latter court dismissed the appeal, hut granted a writ o Fryer v. Black re, 1 Murph., 94, S. C, 2 Hay.. 374, (572.) 10 Dhder the act of 1807, a - : n dieted in the county court ui' anj o i ■ punishm nt of which i tended to life, limb or member, appeal, and if that wen - - Id tlri! he was entitled to a writ of certiorari to carry his case to the su] '.and then would be entitled to a trial dc novo. Statev. Washington, 2 Murph., 100. (Such offences are now cognizable in the superior court only. See Rev. Code, eh. 107, sec. 34.) 11. When a person applies for the extraordinary remedy of a ; in su >w a good reason why he did not avail himself of the ordinary remedy by appeal ; otherwis will nut In' granted McMillan v. Smith, 2 Car. L. 1.'. ?.">, (173.) 12. When a party swears that a judgment by default was taken against him at the appearance term, which he was pre- vented from attending by a violent attack of sickness, that he applied at the next term to have the judgment set aside which was i fused, ami that he has merits, a a rtiorari will he granted him. Dyer v. Rich, _' Car., L. R. 610, (413.) 13. When the clerk of the county court acted as deputy clerk i>f the superior court, and proi tised the appellant to tile the , and. tii. i tually place the papers in the office, considered them as filed, and so informed the clerk of the superior -I the papers were not actually filed until it was too late, a L St L. R., 636 (440.) 14. Where an undue allowance I 'ovision was made to a widow, a distributee was held entitled toaeerfo'oi cogni -.1 hi- right i one ry, X. C. Term R 617.) . See R -v. C de,ch. ! 18, s< c. 20.) 15. Every | i i by an i d- mg in a -hall, upon a prop \'. dits shall 1 1 ■ ■ i be concluded by an <■■'/' rti transaction, but la- shall i opportunity of atrial; also tin/ ily remedy, he shall have that. Ibid. Hi. At tl : time when it was the duty of the appellant to carry up and tile the transcript of the record, and he relied upon the 14 210 CERTIORARI.— I. deputy cleric to do it for him failed, and he through fcKgetfulness, a certiorari was denied. Davis v. Marshall, 2 Hawks, 59. 17. Although it is not usual to permit a sheriff's return to be contradicted by a party, yet if after a judgment by default, he swears, upon applying for a certiorari, that the writ had never been served upon him, and that he had a good defence to the action, the judgment will be set aside and he be allowed to plead. Hunter v. Kirk, 4 Hawks, 277. IS. Where a cause is removed from one superior court to another, the latter has a right to issue a writ of certiorari to the former, -directing a more perfect transcript to be certified; for the right of issuing writs of certiorari is not founded on the cir- cumstance that the court, from which the writ issues, is superior to that to which it is directed; but upon the principle that all courts have the right to issue any writ, necessary to the exercise of their powers. State v. ColMns, 6 Dev-j 117. S. P. Stale v. Eeid, 1 Dev. -and Bat, 377. 19; Where an opportunity of appealing has been lost by the neglect of an officer of the law, the contrivance of the opposite party, or improper conduct in the inferior court, a certiorari will be granted, without reference to the merits. Collins v. Nail, 3 Dev., 224. 20. If an appeal be lost by the neglect of the appellant, or his agent, a certiorari will not be granted. It is otherwise where it is lost by the accidental inability of the appellant to give secur- ity for the appeal. But in such cases it is not granted when applied for, merely to delay the other party, or to avoid a de- cision on the merits. Ibid. 21. When granted the appellant may be laid under terms not to avail himself of a technical advantage, arising from a mere informality. Ibid. 22. Ignorance of the act, requiring appeal bonds to be executed in the court where the appeal was allowed, will not entitle the appellant to a writ of certiorari. Elliott v. Holliday, 3 Dev., 377. 23. An appellant, who 1ms tidied to file hisappeal, is not enti- tled to a certiorari after a delay of three terms. He should apply as soon as he ean, after losing the benefit of his appeal, for the writ can no more be gr into d to one who is dilatory in asking for it, than it can be to one, who has neglected to pray an appeal, when in his power. Erwin v. Encin, 3 Dev,, 52b. 24. A judgment by default, on an attachment before a justice levied on land and returned into the county court for an order of sale, may. alter execution issued, but before a sale, be set aside and a new 'trial awarded in the superior court upon a Writ of certiorari, directed to die county court, and founded on an affidavit showing merits and denying notice of the proceedings. And the writ must issue to the county court, and not to the magis- trate giving the judgment, because the county court alone can CERTIORARI.— I. 211 answer to it. as the record is there. Dowjan v. Arnold, 4 Dev. 99. 25. In this State, the certiorari lies either to correct errors of law, as a writ of false judgment, or as a substitute for an appeal. It issues, where the party lias been improperly deprived of hie appeal, as a matter of course; when he has lost the appeal by accident, upon affidavits showing prima fade a case of merits; and in the latter ease, if on the return of the writ the merits sworn to be not answered by affidavits on the otherside, the first judgment is set aside, and a new trial had in the superior court. Ibid. 26. In these eases the certiorari has the effect of the appeal for which it is substituted in annulling- the judgment and giving a trial de novo; and it may be awarded upon a proper case, so lung as the parties alone are interested, but not after third per- sons acquire an interest, as after a sale under the judgment; there, the only remedy is by writ of error or false judgment. Ibid. 27. The writ of certiorari is used in this State as a writ of false judgment, and as a substitute for an appeal; and it never has been allowed in lieu of a writ of error. The latter writ boing entirely effleacious for five years, there is no need of the former during that time, and, after its expiration, the certiorari being discretionary should not be granted, as thereby the limitation to writs oi error would be avoided. Swaim v. Fentress ,4 Dev., 601. 28. The opinion of counsel, as to the probable issue of a suit, does not justify a party in neglecting to appeal and will not entitle him to a certiorari. Ibid. 29. A certiorari may issue as often as it appears to the court, that there is reason to believe the transcript imperfect, until one is obtained to which neither party can object. State x.Beid, 1 Dev and Bat, 377. 30. In extraordinary cases, as where two transcripts are sent contradictory to each other, and the parties do not agree which is corr ict, the court, instead of ordering a certiorari, will direct the officer to attend with the original record. Ibid. 31. A writ of ce tiorari ought not to be allowed to enable a person to rake advantage of a matter occurring subsequently to the first trial; much less to create a defence by some act to be done posterior to the issuing of the ceitiorari. Hence, where the partii s to a ca, sa. bond, conditioned to appear in the county court, to take the benefit of the act for the relief of insolvent debtors, were called, and. failing to appear, judgment was given against them and their sureties, it was held that the sureties. were not, upon the allegation of having been prevented by the fraud of the plaintiff's agent from making a surrender of their principals in discharge of themselves, entitled to the writ of 212 CERTIORARI.— I. certiorari, to enable them to make it in the superior court Bitts v. Franklin, 4 Dev. and Bat., 465. 32. The fraud in such casernay, perhaps, authorize the court, in which judgment was given, to afford relief. At all events it is the proper .subject of jurisdiction of that court, which consid- ers things done that might and ought to have been done. The relief is on the equity, and not the law side of the court. I hid. 33. A certiorari has been properly allowed where the judgment was by default; and upon it the judgment has been se1 aside and the defendant allowed to plead; but that can never be done unless the party shows two things: first, an excuse for the laches in not pleading, and, secondly, a good defence existing at the time when he ought to have pleaded. Ibid. 34. A certiorari will not be granted, where a writ of error will lie. Petty v. Jones, 1 [red., 408. 35. Where there is a summary proceeding of an inferior tri- bunal, as in a ease under the processioning act, not according to the course of the common law, the party is entitled, ex debito jvsticice, to a certiorari, to bring it up for review in the matter of law. Matthews v. Matthews, 4 [red.., 155. 36. An allegation that the party had a good defence at law, which he lost without his fault but by the fault of the other party, will not entitle him to a certiorari. It' the other party insists upon an unconscientious advantage at law, the proper remedy is to be sought in a court of equity. Watts v. Boole, 4 Ired., 331. 37. One party, to a joint judgment against two. cannot alone. take up his case to a superior court, by a writ ol certiorari. Oley v. R >gers, 4 lied., 534. (It may be presumed that he could now under the effect of the Rev. Code, ch, i, see. 27.) 38. In tlie case of a petition for the condemnation of an acre of land for the site of a public mill, under the act of assembly, where the court order* d a condemnation of the laud ami refused an appeal from that order to the party owning the land, it was :l it was proper in the superior court to order a certion ri to bring up the proceedings before it. Brooks v. Morgu 5 Ired., 481. ( Si - III V. ( !odl . eli. 7 I. see. 2. ) Uthough an appeal, which is in the nature of a new trial on the facts and merits, cannot be sustained, unless expressly given by statute, the superior court will always control in- ferior magistrates and tribunals, in matters for which a writ of error does not lie, by certiorari to brine' up their judicial pro- be reviewed in the matter of law; for, in such case, the a rtiorari is in effect a writ of error, as all that can be dis- cussed in the court above is the form and the efficiency of the proceedings, as (hey appear upon the face of them. J hid. 40. Where a tenant tor a year was ejected by I'm ce of the stat- ute in relation to forcible entry and detainer, whatever the er- rors and unlawfulness of the proceedings against such tenant CERTIORARI— I 213 may be, the landlord, not being a party to the proceedings, has no right tci intervene by a writ of certiorari. Stevens v. Smith, 8 Ired, 38. 41. From the judgment of a justice, on an offence committed by a slave of which lie lias original jurisdiction, an appeal by the master lies to the county court, but not from that to the su- perior court. But the master may, as in other decisions by an inferior tribunal, have the case re-examined in the superior court, upon a writ of certiorari or writ of error. State v. Marley 8 Ired., 48. (Appeals from the justice to the superior court are now given. See Rev. Code, ch. 107., sec. 33.) 42. Where a party applies for a certiorari, upon the ground that a judgmenl has been improperly rendered against him by default in the court below, he must set forth, in his petition, not only an excuse tor his lulus in not pleading, !m) also a good de* fenc< existing at the time when he ought to have pleaded. Brigman v. Jercis, 8 Ired. 451. 4;'.. Where an attachment was isued by a justice lor a sum above his jurisdiction, ami was made returnable before him, or some other justice, and where the county court permitted the plaintiff to amend the process by making it returnable to the county court, ami that court also permitted the defendant to ap- peal upon his giving an appeal bond, though he had not replev- ied: // was held, that the defendant was entitled to appeal, though lie had not replevied, and, further, that if he were at the time unable to find sureties for the appeal, he was entitled to a certio- rari without showing any merits in fact, the case disclosing that there were questions of laiv, which lie had a right to have decided by the superior court. Britt v. Patterson, '.' Ired., 197. 44. Where a judgment was obtained before a justice against a husband anil wile, on a bond executed by them during their coverture, and an execution levied on tin/ land of the wit'-', and returned to tin.- county court, where, after the death of the hus- band, an order was made for the sale of the land, it was held, that the wife, was entitled to a certiorari returnable to the su- peri< ir court. Lassiter v. Harper^ 10 Ired.. 392. 45. When the proceedings of an inferior tribunal are not ac- cording to the rules of the common law. the aggrieved party is entitled to a certiorari, but only to have them reviewed as to mat- ters i law. State v. Bill 13 Ired., 373. 4(i. If a party, who is entitled to an appeal from an inferior to a superior tribunal, is denied that right, or deprived of it by fraud, ei- accident, or inability to comply with the requirements of the law, he is entitled to have his whole case, both as to law .and tact, lii-ouglit up by certiorari, and to a trial de novo in the superior court. Ibid. 47. Where a party is denied his right of appeal, or is deprived of it by fraud or accident, or inability to comply at the time 214 CERTIORARI.— I. with the requirements of the law, he may have the writ of cer- tiorari. But it is otherwise, when his failure to appeal or make defence was the result of his own negligence, or where lie trust- ed his interests to an unfaithful agent. Baker v. Halsh ad, Busb. 41. 48. Where a judgment was obtained in the county court against Band L, upon a note which l'> had signed in blank forL, for renewal at bank, and which L had altered by erasure, and filled upand transferred to H, and B had trusted to 1. to employ oonnsel to enter pleas in bar, who suffered judgment to lie taken against both; it teas held, that B was not entitled to the writ of certiorari. Ibid. 49. Win tc, 1 >y a private act al lolishing jury trials in the county courts of Richmond county, no provision was made for removing from the said court, to the superior court, cases where free negroes were charged with unlawfully migrating into this State, the proper course would be to remove the same by a writ of certiorari to the superior court for trial; but if the parties con- sent to the removal, the writ of certiorari is dispensed with, and the superior court will acquire jurisdiction without it. State v. Jacobs, Busb. 218. 50. The proceedings of inferior tribunals, which are subject to revision in a higher court, must be of & judicial nature, and, it would seem, must be such as are not merely discretionary. Hence, an order of a county court granting license to retail spir- ituous liquors is either an act merely ministerial, or it judicial, discretionary in its character, and therefore not the subject of review by appeal or certiorari. The Intendant and Commissioner^ of Raleigh v. Kane, 2 Jones, 2.SS. 51. The act of 1850, which makes it necessary for an appli- cant for a license to retail spirits within the city of Raleigh to city, does not take away from the county court its discretion in produce the written permission of the commissioners of said granting or refusing a license; and the exercise of the power cannot, therefore, be reviewed upon an appeal or by a writ of certiorari. Ibid. 52. When, by an act of assembly, jury trials were abolished in the county courts of a particular county, and an issue of de- visavit ret nan was made up in such court, it was Jteldth&i in the absence of a provision in the act for removing the issue to the su- perior court for trial, the proper mode fordoing so was by a writ of certiorari, though it might be done by consent of parties, which would make the writ unnecessary, and that an order ot removal simply was to be taken to be one by consent. Thompson v. Floyd, '2 Jones, .Hi:!. 53. Where, upon the appearace of an insolvent at the county court where jury trials were abolished, a suggestion of fraud was made, but no specifications were filed in that court, it was held CERTIORARI.— I. 215 that the cause was not in a condition to be taken to the superior court by certiorari, or otherwise. HcLaugMin v. McLaughlin, 2 Jones, 319. 54. Where a party to a suit is guilty of laches in failing to enter a defence to a note sued on, which he alleges to have been a forgery, and also in failing to attend the i ounty court in which the judgment is entered up, and to take an appeal, he is not en- titled to a certiorari to have his -ease taken up to the superior court. Rule v. Council, 3 Jones, 33. 55. Where a party prays an appearand the court refuses to allow it. or where he is unable at the time to give security for the aippeal which he has prayed, a certiorari is a matter of course. But where an appeal has not been prayed a certiorari is not a matter of course and the party, in such case, must account in his petition for the fact that an appeal was not prayed, and he must state his belief that he has merits, and set forth the gr< muds of that belief; and he must be able to prove the allegations which account for the fact that no appeal was prayed, but he need not prove the allegation as to merits. Bledsoe v. Snow, 3 Jones, 99. 515. Where the parties to a suit agreed at the trial term that the matter should be left to arbitration, and a day was appoint- ed for that purpose which was after the term, and the defend- ant left court under an impression that the matter was not to be taken up at that term, but the plaintiff got two out of three of the arbitrators to Bign an award, pretending that the matter had li :en settled between the parties themselves, and, by exhib- iting such award to the defendant's counsel, induced him to withdraw his opposition to the entry of a judgment, of which tic defendant had no knowledge until the term had past, and it appearing from the facts stated that the party had merits, a writ lit' certiorari was granted, and a new trial ordered. Ibid, 57. Where, the petitioner alleges that he has good reasons to believe and does believe that the debt, fur which he had been sued had been paid, and shows facts and circumstances to sus- tain his opinion; and furthen shows that he did not attend the trial of the cause in the county court, because he was told by the plaintiff's counsel tint it would be dismissed at that term at the plaintiff's cost, but that, nevertheless, a judgment by de- fault had been taken against him, he is entitled to a writ <•- rtiorari to have his case taken to the superior court, so as to give him an opportunity to make his defence. I/unceford v. J/e- Pherson, 3 Jones, 174. 58. Where a party is deprived, by the fraud of his opponent, of the opportunity of making a defenee in the county court, which can be made in that court only, his only relief is by a bill in equity; but if in such case the defence be such an one as can be mad" in the superior court as well as in the county court, .then his proper remedj is by a writ of certiorari Ibid. 59. Besides the ordinary office of supplying the place of an 216 CERTIORARI.— I. appeal under certain circumstances, the writ of certiorari may be used in this State as a writ of error; in which case, however, the only matter, that can be considered, is the error alleged to be apparent on the face of the record. Sdrtsfield v. Jones, 4 Jones, 309. 60. Where a party in the county court prayed an appeal which was granted, and tendered two good sureties, one of whom was prevented from signing the bond at the time by the fault of the clerk, and the necessity, on account of the weather and of his health, for his leaving the court before he could exe- cute the bond, it was held, that the party was entitled to a cer- tiorari, without reference to the merits of the cause. JI, < 'onneU v. Caldwell, 6 Jones, 469. 61. Where the petitioner for a certiorari stated that he was detained from court by severe sickness, that his counsel prayed an appeal, but he was prevented from giving the necessary security therefor on account of such sickness, it was held that ho was entitled to the benefit of the writ. Sharpe v. McElwee, 8 Jones, 115. 62. Where a judgment had been rendered in the county court against a surety on a bail bond, and he filed a petition for a cefa Uorari. stating that he expected to be able to discharge himself from liability by the next term of tbe superior court, by a sur- render of his principal, it was held, that this was not to be con- sidered as an appeal for mere delay, and that he was entitled to the writ of certiorari. Ibid. 63. WheVe the principal obligor in a ca. set. bond was called in the enmity court, and failing to appear, judgment was rendered against him and his surety, it was held, that the fact that the principal was sick and unable to attend the term, at which he was bound to appear, was not sufficient to entitle the surety to a certiorari to have the case taken to the superior court. Bids. v. Arnold, 8 Jones. 233. 64. Where a writ of lunacy was issued by a county court, and a trial had before a jury, and a, verdict rendered finding the per- son rum compos, which was confirmed by the court issuing the writ and a guardian appointed, all in the absence of such person and without notice to her, and it appeared that she had applied to a -lodge for a certiorari, which was refused mi an erroneous ground, and she then, under advice of counsel, insti- tuted a suit in equity, which failed for want of jurisdiction, and she swore to merits, it was held, on a petition setting forth these matters, that the petitioner was entitled to a writ of certiorari to taken]) her case to the superior court, where she might have another trial. DoweU v. Jacks. * Jones, 387. See (Clerks and Clerks and Masters — Of their election or ap- pointment, 3.) (Contempt, 8.) (Forcible Entry and Detainer, 14-15-16.) (Habeas Corpus, 5-6-7.) CERTIORARI.— II. 21T It. OF PROCEEDINGS IX CERTIORARI, AND OF THE EFFECT OF THE WRIT. 1. If a cause brought up by certiorari be dismissed, the court must order a procedendo. Dawsey v. Davis, 1 Hay.. 280, (323.) 2. When a cause is removed by certiorari, granted by a Judge out of court, it must be placed on the argument docket, and the affidavits of the other party may be received to show the impro- priety nt granting a new trial. And in such case, the court will m >t grant a new trial, until both sides can, if they choose, hie affidavits. Ibid. S. P., Anonymous, Ibid., '■'>*>'. ( 121.) 3. It the certiorari be obtained in court, upon a rule made upon the other party to show cause, and upon argument had upon that rule, the cause when removed should be placed immediately upoii the trial docket, without further argument. Ibid. S. P. Ibid. Dawsey v. Davis, 1 Hay., 280, (323.) 4. If a certiorari be obtained to remove a cause upon the ground that an appeal, to which the party was entitled, had been refused in the court below, and this fact be admitted by the other party, the ease will be placed upon the trial docket, without showing any other cause. Anonymous, 1 Ha v., ;>U2. (349.) 5. When a a rtiorari is granted in open court upon affidavits alone, without a rule to show cause, it is in the same situation with a a rtiorari granted by a Judge out of court; and no new trial can be granted, until the- adverse party lias had an oppor- tunity to show cause against it. Anonymous, 1 Hay., :';ii7. (421) 6. When a new trial was granted on a certiorari in a <■■!,■> at cause, the cause was ordered to tic county court for trial, that court only ha vim;- jurisdiction. Henry v. Heritage, 2 Hay., 38, (201.) ' " J _ J 7. If a certiorari be obtained on an affidavit, stating the grounds of moving for a new trial, which is not contradicted by counter affidavits, there shall be a new trial. Reardon v. Guy, 2 Hay. 245, (4:',."..) 8. Affidavits may lie read to support the affidavit on which the certiorari was granted, as well as to contradict that of the defendant to the writ; and depositions, taken in a suit then penoV ing between the same parties, may be read upon a motion todis- miss the certiorari. Led&etter v. Loftin, 1 Murph., 1st. 9. The plaintiff in a writ of certiorari is entitled to a continu- ance "t' his cause to procure further affidavits, if he can show to the court that he cannot procure them at the term at which the ivits are filed. Vervelv. Trexler, 1 Murph., 438. 10. If, after a judgment against a defendant, he be taken un- der a ra. sa., and give a bond for keeping within the prison founds, and afterwards obtain a certiorari, to take the cause to the superior court, and it is there ordered to be put on the trial 218 CERTIORARI.— II.-III. docket, it will have the effect of an appeal, and vacate the judg- ment, and render the prison bound bond a nullity. Gidney v. Ealsey, 2 Hawk, 550, 11. There is but a very remote analogy between the writ of certiorari, as used in England, and in this State. Here it is in- variably granted after a trial in the inferior court; a case must be made out on the merits, upon affidavit, excepl where it issues to bring- up a record, appealed from, but not filed in time; and the question always is in the superior court, whether there shall be a new 1 rial. Security, too. must be taken by the clerk of the county court, to which it issues, in the same manner as an ap- peal. Ibid. (The clerk' of the superior court may also now take bond. See Rev. Code., eh. 4, sec. l(i.) 12. The affidavit for a certiorari is properly no part of the re- cord. Mushed v. 3Ioore, 4 Dev. and Bat., 124. 13. Where certain defendants, securities to a sheriff's bond, had obtained a certiorari to bring up a case from the county court, where judgment had been rendered against them without due notice, and upon the return of the certiorari the superior court directed the case to be placed on the trial docket, and that a new trial be granted, and when the case tame on for trial, upon the motion of the defendant, ordered the suit to be dis- missed, because the defendants had not been duly served with notice as directed by law, it /ran held, that this judgment was erroneous, and that the parties must proceed to trial upon the merits of the case. Petty v. Jones, 1 Ired.. 4o,x. 14. A clerk of a court, to whom a certiorari has been directed, should make a return that "in obedience to the writ he has sent the annexed record," and this should be made under his hand and seal of office. State v. Martin, 2 Ired., 101. 15. In sending the transcript of a record in pursuance of a ' certiorari, from one court to another, it is not necessary that the transcript should be affixed to the writ of certiorari, ( thoragh it is most proper that it should be so,) provided enough appear to show the court into which it is certified, that it is in truth the proper transcript. Statev. Carroll, 5 Ired., 139. lii. Where a certiorari is returned to court, no proceedings can be had oil it. until notice of its return has been given to the person, against whom it issued. Bowman v. Foster, 11 Ired., 47. 17. A party who is brought in by certiorari may, upon motion on the ground of irregularity, have the proceedings dismissed, but he may, if he choose, waved that motion, and submit to plead to the action. Ibid. III. OK THE RETURN OF THE WRIT. 1. A certiorari ought to be returned on the return daymen- CERTIORARI— IIL-IV. 219 tioned therein, and if not so returned, nor any proceedings had to continue it in court, it is, like other writs, discon- tinued, and a procedendo must issue. Anonymous, 1 Hay., 420, (484) 2. Writs which give jurisdiction to a court must be returned, and both the writ and the return must appear upon the record; but this is unnecessary, where the writ was issued in the pro- gress of a cause, and it appears of record that the writ was issued and the return made in pursuance thereof _\ writ of cer- tiorari to certify a more perfect record is of the latter descrip- tion. State v. Collins, 3 Dev., 117. I\ . O-P THE SECURITY FOR COSTS. 1. The court may order the plaintiff in a certiorari to give security for the costs. Waller v. Brodie, 1 Hay., 28, (38.) (Se- curity is now required and regulated by statute. Rev. Code, eh. 4, see. 1G.) 2. If a bond has not been taken from a party obtaining a cer- tiorari previously to its issuing, the superior court will permit a bond to be given when it is returned. Fox v. Steele, 1 Car. L. R, 379, (48.) S. P., Iiosseau v. Tliornberry, 2 Car. L. R., 442, (32(5.) 3. A set. fa. will not lie on such a bond, because it is not a matter of record nor directed by the act of Assembly. Ibid. (For the remedy on such bonds now. See Revised Code, ch. 4, sec. 1(1.) 4. Where the condition of a bond, given upon obtaining a cer- tiorari, was, that the obligor should make his personal appear- ance "and abide by and stand to the judgment of the court," it was held, that these words were equivalent to "perform the judgment of the court," and imposed on the obligor the pay- ment of the sum recovered against him, although the bond was made payable to the clerk who issued the certiorari. Molton v. Hooles, 3 Hawks, 342. 5. When a Judge's order directs a certiorari to issue to the county court, the clerk of the superior court may issue the writ without taking security, it being the duty of the clerk of the county court to take the bond. Judges v. Washington, 1 Dev., 152. (Either clerk may now take it. See Revised Code, eh. 4, sec. 1G.) 6. Acertiorari, being intended as a substitute for an appeal, must, be allowed on the same terms of giving a similar security. Estes v. Hairston, 1 Dev., 354. 7. A summary judgment may properly be rendered upon a bond given upon obtaining a certiorari. Speight v. Wooten, 3 Dev., 327. 220 CERTIORARI.— IV. -V. 8. A case was taken from the county to the superior court by a writ of certiorari, and, after the trial of the issues in the supe- rior court, the sureties for the appellant at the same term sug- gested his death, but the court, notwithstanding, gave judgment against them for the costs, the verdict having been against their principal; and if was held, that the judgment was right: first, because the sureties, aot being parties to the suit, had no right to make the suggestion : secondly, because, as the issue had just been tried, it must be intended, that the death had taken place during the term. fVooktrd v. Woolard, 8 Ired., 322. V. CERTIORARI IX THE SUPREME COURT. 1. In considering the ease of a certiorari, on an appeal from a decision of the superior court thereon, the supreme court will not notice affidavits on either side', filed since the cause was transferred to that court. Mc3IiUan v. Smith, 2 Car. L. 1!. . 7. r >, 2. A judge of the supreme court has no power granted him to issue a writ of certiorari in vacation, returnable to that court; application for the writ must be made to the court while in ses- sion. Rodman v. Austin, 3 Murph., 252. (See Rev. Code, ch. 33. ) 3. When the transcript of a case, filed in the supreme court upon an appeal, is imperfect or erroneous, a diminution of the record may be suggested and a certiorari obtained. Smith, v. Kelly, •"> Murph., 507. 4. Where the appellant has failed to bring up the appeal bond along with the transcript, and swears that neither he nor the clerk knew it was his duty to do so, and that lie did not intend to abandon hisappeal, he shall have a certiorari to bring it up. Manning v. Sawyer, 1 Hawks, 37. 5. When an accident prevents an appellant from bringing up hisappeal, the supreme court will grant a certiorari: hut not where the failure is caused by the neglect of an agent. State v. Williams, 2 Hawks, 100. (it is now the duty of the clerk to semi transcripts to the supreme court, See Rev. Code, ch. 4, sec. 2.3.) 6. Certiorari granted on affidavit of appellant, that he had applied in due lime (,, the clerk in the court below for the tran- script of the record, and was informed by the clerk that he had .sent ir up, hut it came too late. Mcra v. Scales, 2 Hawks, 3(14. 7. A certiorari is granted by the supreme court on tacts un- controverted, apparent on the records or papers before the court; but a rule is proper, when the application is made on facts not so apparent; but in all cases, the facts may be controverted, when the certiorari is returned Ch&ry v. Slade, 2 Hawks, 400. CERTIORARI.— V. 221 8. Where the affidavit stated that the sum recovered was large, ami the defendant being in a strange part of the country could not at ili" time give security for an appeal, and also that he had merits, certiorari was allowed. Estes v. Hairston, 1 Dew, 354 9. When an appeal had been given pro form a in the superior court, and an appeal taken to the supreme court in order to get its-decisions upon certain questions, but the judge omitted making up a case during the term, and the attorneys of the parties took the* papers from the clerk's office and carried them off for the purpose of making out the case, and did not return them to the office until it was too late fertile clerk to semi up the transcript in time, which he swore he would have done had tin been returned soon enough, a certiorari will be granted to the appellant, upon his deposing rhai he never intended to abandon his appeal. Murray v Sliaiiklin, -1 Dev. and Bat., 276. 10. Where an appellant relies upon the clerk to send up the transcript, and lie makes an ineffectual attempt to do so, the appellant will not be relieved by a certiorari, unless the attempt be such, as if made by the party himself, would have been deemed a substantial compliance with what the law demands of him. If the transcript had been mailed in due time to reach (be court, il is probable that would be - ed; hut the placing of it in the hands of a gentleman, who is under no special obligations to attend to the filing of it, is not such a compliance. Hester v. Hester, 4 Dev. and Bat., 311. (As the clerks of the superior court are now required to file the tran- scripts, a certiorari would be granted in a case like the present, See J.'eN . ( 'ode, ch. 1. see. 25.) 1-1. A certiorari will not be granted, wher ■ a i appi al has not been brought up, through the inattention or foi - of the the court, whom the appellant has constituted bis agent to send up the appeal. Cotton v. Clark, 1 fn d., 353. S. P. Muz- eeHv. Ln: 1 Ired., 411. (But see now Rev. Code, ch. -1. s< c. 25.) 12. Where a judgment was rend party in the sup srii r a county distant from h < ;idence, and where h had but few acquaintances; where he had been in believe I he ven lid of the jurj w i ild 1 s in his favor; when the court did not decide on h or a new trial mi- i ist day of the term; when he had, prayed an i ; peal to the supreme court, which was granted but be was unable, after ,-dl his exertions, to obtain sun ties for tb i the county where the suit was tried, and he mon over i et forth in his affi- davit that he had merits on his side, thi ■ an ed the writ of certiorari. 'Trice v. Yarboro I., 11. 13. Where an appeal from the superior court has not been filed in proper time, ^certiorari will nol 1. unless it be applied for at the term when the appeal h add have been tiled. Stanlesv. Mooring, -i Ired., 215. 222 CERTIORARI.— V.— CHALENGE TO FIGHT, &c. 14. A certiorari may be ordered by the supreme court to bring up the transcript of a more perfect record of the superior court, eveu when it is suggested that the record of that court is im- perfect, and will have to be amended before the transcript is made out, and the certiorari, even in a capital case, will be made returnable in the supreme court, at such time as will afford an opportunity for the application to have such amendment made. State v. Craton, 6 Ired., 164. 15. Although a certiorari has once been issued from the su- preme court, upon a suggestion of a defect of the record, and has been returned, yet the court may, upon a further sugges- tion, a second time or oftener direct writs of certiorari to issue, if it sees reason to think the transcript defective.- Stale v. Mun- roe, 8 Ired., 258. See (Habeas Corpus, 5-6-7.) CHALLENGE TO BIGHT. See (fn-dictment-^When an indictment will lie, 19,) (Indict- ment — Form and matter relating thereto, 35.) CHAMPERTY, See (Maintenance and Champerty. ) CHOSE IN ACTION, 1. When the son of the owner of a slave got possession of him and sold him to the defendant, and while in the defendant's pos- session, the father demanded him and thensoldhim to the plain- tiff, it was held that the slave was not, under the circumstances, a chose in action, and that the purchaser from the father might recover him in his own name. Robertson v. Stewart, 1 Hay.j 159, (182.3 2. Where A turned his cattle into the woods, and B thinking CLERKS AND CLERKS AND MASTERS. 223 that one of them was his his, took possession of it: and after- wards A, in ignorance of this, sold the beast to C, who was also ignorant of Fs possession, it was held that the possession was not adverse, so as to create a elms,- in action, and that, therefore, C could sue B for the beast in his own name. Jfonjan v. Itradtey, 3 Hawks, 559. 3. A vendee or assignee cannot sue in his own name for proper- ty, which the vendor or assignor, at the time'of sale or assignment, could only recover by suit. Steadman RiddicJc, 4 Hawks. 29. 4. A chose in action comprehends specific chattels, as well as the right to reeover a debt or damages, and extends to every sort of chattel property, of which a man hath not actual occu- pation, but only a right to occupy it, a suit at law being necessary to recover it, on account of an adversary claim. !/»' [red., 155. 4. If a person think himself elected clerk of the county court, instead of the one pronounced by the said court to have been duly elected, his remedy, if he has any, is by a writ of quo ivar- ranto. Ibid. .5. Where an election for clerk of the county court is contested, the party contesting should !»• confined to those objections, of which he has given the opposite party the legalnotice. Ibid. See (Constitution — Acts which have been declared to be un- constitutional, 0.) II. WHAT INTEREST THEY HAVE IN THEIR OFFICES. 1. A clerk appointed under the act of 180(1. during good beha- viour had aa estate in his office, and although the Legislature might destroy the office, and by consequence the estate in it, yet the act of L832, (See h'"Y. Code, el), lii. sec. 1.) which con- tinued the office, but transferred the estate in it to another, is unconstitutional and void. Hoh v. Henderson, -i Lev., I. III. OF THE RESPONSIBILITY OF THEM AND THEIR SURETIES. 1. A sale of real estate by the clerk and master in equity, or- dered by the courtunder ads oi the Assembly, athorizing a sale when il is necessary for aa equal and advantageous division, is an official act, and as such comes within the scope of the condi- tion of his bond. Judges v. /', ans, 2 Hawks, 93. 2. Lnder the act of 1823, for the promotion of agriculture, the clerk, who is proceeded againsl for not making his return, may make his excuse to the judge of tin.' superior court, and ot the sufficiency of it the judge must decide at his discretion; CLERKS AND CLERKS AND MASTERS.— III. 225 and the decision cannot be revised upon appeal to the supreme court State v. Saunders, 4 Hawks, 198. (See Rev. Code, en. 73.) 3. Before the act of 1823, authorizing clerks of courts to re- ceive payment of judgments before execution issued, a payment of money raised upon an execution, by the sheriff to the clerk, and a receipt of it by him as clerk, were held to be within the condition of his official bond, although the payment was made before the return day of the writ, upon which the money was made. Judges v. Williams, 1 Dev., 42(>. (Sec Rev. Code, ch. 31, sec. 127. ) 4. The act of 1819, requiring clerksand clerks and masters to renew their bonds annually, does not make their offices annual appointments, but gives cumulative securities for the perfor- mance of their official duties. Oats v. Bryan, 3 Dev., 151. (See Rev. C »de, el,-.. 19, see. 12 and ch, 20, sec %.) 5. Norf-payment of money, received by a clerk and master officially, may be assigned as a breach on any bond given by hiiu. Ibid. 6. The clerk (fa court, having inhis possessions bond, which had been deposited in his office by order of the court, and which belonged b >■ o« rtain parties- to a suit pending in said court, trans- ferred the bond to one R, who, in part consideration therefor,. gave the clerk a receipt for a sun; of money then in the hands of the clerk in his official capacity, and belonging to the relators, of whom R was the guardian. Afterwards the amount of the bond was recovered from R by the persons to whom it belonged. If was held, that the receipt of R. the guardian, was no bar to the action by the relators on the official bond of the clerk, to recover the money due to them and which the clerk had refused to pay. State v. Arrington, 3 Ired., 99. 7. A guardian was appointed in February, 1833, and remained in office until May, 1841, during all which time he never renewed his bends as required by law. The first renewal should have been made in 1836, and the second in 1839 1 ; it was //-A/ that a clerk of the court, who had been appointed in 1837, and who issued no notice to the guardian to come forward and renew his bond, was responsible on his official bond for any loss the wards may hav sustained by his neglect .to issue such notices. State • 7. 7 [red., 289. 8. Where a clerk and master had received money in his office under a decree of the court, and used it. and afterwards paid it out to a person whom he thougb.1 entitle, I to receive it. but who in fact was not so. it was held, that the clerk and master was party properly entitled, not only for the principal receh ed, but also for interest thereon to the time of the payment to such party. StaU v. Ehringhaus, 8 Ired., 7. 9. A clerk and master, who sells land under an order of the court of equity for the purpose of partition, acts under such 15 226 CLERKS AND CLERKS AND MASTERS.— III. order as an officer of the court, and is liable on bis official bond for any breach of duty in hot complying with the orders of the court, in relation thereto. Therefore, where a clerk and roaster sold land under such an order, received the proceeds, and was directed by the court to pay them over to the person i ] ,> irly entitled by law, and the heirs did not make their claim v nlmi three years; it was held that he was bound to pay the same under the act Rev. Stat, ch. 76, sec. 1, to the trustee of the county, for which he was clerk and master, and that lor a default in so doing he and his sureties were liable on his official bond. But, it was held further, that with regard to money, of which the court "t equity had not directed a disposition, lie was not liable, though it had remained in his office unclaimed by the heirs for three years. Statet. Gaines, 8 Ired., Hie. (See Revised Code, ch. 73, sec. 1.) _ • 10. Where a writ is signed by a clerk, in blank, and delivered by himself or his deputy to another person to he filled up and placed in the hands of the sheriff, the clerk isjiahle to the pen- alty of $200, under the net, Rev. Stat., ch. 31, sec. -in, if no security for the costs has been given, especially alter the writ has been returned 1 regularly docketed by the clerk. Wright v. Wheeler, 8 Ired., L84 (See Rev. Code, ch. 31, sec. 12.) 11. In an action upon g statute to recover a penalty, the plain- tiff must set forth in his declaration every lad . bicb is neces- sary to inform the court that his case is within the statute"; Therefore in an acti on under the act, againsl i clerls for not taking "sufficient security" for the costs, the declaration i ; : I rtJq either that the clerk took no security, or that he took im \ ; ity, knowing it to be insufficient; otherwise a demurrer will be sustained, or a judgment after ferdici be tained Ibid. (See Rev. Code, ch. 31, sees. 40 and 42.) 12. No action can be sustained on a. hoed given by a clerk for ■,.! p irmance of his duty, ex< i I there has ch damages sustained as would givi th right to maintain an action on the case, againsl the clerl or the neglec ( t or breach of his official duty. Stal v. [., ' • ■■, ■ ■ loi 13. i( was ao1 the intejition of the act, requiri i l< rks to issue ex officio notices to guardians, to make th n their official bonds for failing to do so. Ibid. (See Revised < de, ch'. !C. 10.) 14. Where a clerk and master took monej to his office, and used it in speculation, the sureties on I he i hen current bond are liable; notwithstanding the amount thus taken had been returned to him by the person, who was his partner in the speculation, after the time when that bond had expired, and a new bond had. been given. Such a return of the money could only have the effect to mitigate the damages, and to that end it should have been shown that the money was specifically CLERKS .VXD CLERKS AND MASTERS.— III. 227 appropriated to the payment of those entitled to it. White v. Smith. ■_' Jones, 4. 1"). Where the sureties on the second bond, in the case just above stated, were sued, and a judgmenl was erroneously ren- dered against them, which, upon being paid, wasassigned to a friend lor their use, if was heM, that the judgment was no bar to the suit on the bond, the sureties to which were properly lia- ble, and that it could not even have the eftect of mitigating the damages. Ibid. 16. Where a clerk and master misapplied a fund, of which a husband was entitled to the annual interest during his life, and the w i te was similarly entitled during her life, in case of her sur- viving her husband, it was held, that the husband and wife could reqpver on the official bond of the said clerk and master, for the current year at the dale of the misapplication, to the ex- tent of the interest. Richardson v. Smith, 2 Jones, 8. 17. Where the money and property of an infant, without a guardian, was ordered bya decree of the county court, to be paid ever to the clerk of the court, to be by him invested and man- aged under the direction of the court for the benefit of the in- Cant, it was held, that such clerk and his sureties were liable on hisofficial 1 ond, which was in force at the time of the decree, without reference to the time when the money and property was afterwards received. Lathamv. Fayan, 6 Jones, 62. (See Rev. Code. eh. I !, sec. 29.) is. An official bond given by a clerk, upon his entry into of- fice, covers his whole official term, whether a new bond I" wards given or not. Hunter v. Routlegi . 6 Jones, 216. 19. The forfeiture, declared by the 11th section of the 19th chapter of the Rev. Stal riol per se vacate the office of e!e i . uor invalidate the acts of the officer, who remains in office until there ;s judgment oi a scurt -asiast hunter b.;s cldxn- quency. Ibid. (See Rev. Code, ch. 19, see. 12.) 2 I. V'i b ' I of a clerk, required bytrie Rev. Stat., ch. 28, sec. 11, was only intended to secure I lie payment of tax fei 3 on suits, lines tfce., while tl ev. Stat., ch. 19, >• c. 7. v 1 i .ended iii si ir e payment of money generally to the parson < if the ] wlere money rais id under an execution was paid into office, it was held, thai il could tiol be recovered upon a bond given under the fir 1 named act, all hough thai conl tin ; a conr jlition, "to pay ever to the person 1 r pi rsons entitled b re :eive the sain r monies, which might come to his hands by virtue of his office. Ibid. (Only one bond, in a pi ..' oi $15,000, is now required from a clerk, which coi a allhis lia- bilities. See Rev. Code, ch. 19, see. 8.) 21. No demand is necessary previous to a suit against a clerk, 22* (LEEKS AXD CLERKS AND MASTERS.— IEL-IV. who has received public money, offieially, which he is bound to pay over. Little x. Richardson, 6 Jones, 305. 22. An order made in the superior court for an outgoing clerk to deliver documents, records, papers and money to the new clerk, under the Eev. Code, ch. 19; sec. 14, cannot be en- forced by a motion for a judgment in the county couft The remedy is by an attachment, in the court making- tie- order, or by a regular suit for the penalty of $1,000 given by the act. O'Leary v. Harrison, i> -Tones. 33& 23. it was not- the intention of the legislature in the act, Rev. Code, ch. 54. Bee. 6, t<> make it a breach of the clerk's official bond, to omit entering the name.-? of the justices present in court and appointing a guardian, either on the docket, or bond, or both; but in these particulars the act is merely directory. ForneU v. Kooni e, 6 J< mes, 379. •IX. Where money was paid to the deputy of a cleric and mas- ter after tlie- term of office of the principal had expired, although he was still acting, without having been re-appointed or given a new bond, it was held that a msa-payment of this money, to the entitled under an order of the court, was no breach of the official bond given by the principal during his term of office. HdUoman v. Langdon, 7 Jones, 49. 25. The only remedy given by the act ef assembly to a per- son against a clerk, who has issued a writ against him, without ng security to the prosecution bond, is the penalty of two bundled dollars, given by the Rev. Code, ch. 31, sec. 42. Fife v. Lander, 7 Jones* 247. 2ii. Inaction by the county trustee suing upon a sheriff's official bond., as relator in the name e>f the State, is within the meaning i,i' tiii act, Rev. Code, ch. 31. sec. 40. requiring clerks to take prosecution bonds before issuing leading process; ami a clerk, failing t: ) take such bond in such suit, is liable to the penalty of twe hundred dollars, imposed by the 42nd section of the same act. King v. Woolen, 7 Jones, 533. 27. A summary remedy by motion is given, against a clerk and his sureties on his official bond, for money which lias re- mained in his hands for three years, only where he has admitted the money to be due, in the manner specified in the 1st section ot th'/ 73d chapti : I Code. Summey v. ./, 1 Wins!, '.is. See (Limitations — Of actions on official bonds, S.) -(Trespass — -ens and; ; ony, when it will lie, 13.) IV. DEEDS EXECUTED 3Y CLERKS AXD MASTERS. 1. A deed for land a clerk and master, by an order of court, under the act, Rev. Stat, ch 32, sec. is. conveys all the interest any of s.te the suit had in. the land, COLOR OF TITLE. 224. 18. A partition of land, mad' by order ofcourl upon the peti- tion of 1 i interested, is a good color of title. Bynumv. Thonij so • 3 Ired., 57S. 19. A paper writing- purporting to be a will of lands, which has but one subscribing' witness, and which lias never been provi d as a will, is not such a color of title as will ripena seven sion under it into a good title CaRend-ir v. Sher- ' I red., 711. 20. A devise to one person cannot be color of title to another, claiming adverselv to the devise.-. Watkins v. Flora. 8 lred.. 374. 21. Where a deed was delivered merely as an escrow, and never absolutely, was not registered and was finally destroyed by the maker, by the consent of the party to whom it purported 1n be mad . it cannot constitute- a color of title. Chastienv. Phillips, 11 lred.. 255. ~1'1. If the sheriff sell thelandofA for taxes, and make a deed to the purchaser, which is inoperative, the deed from A's vendor to him would be good color of title in A; but it the sheriff's deed be operative and pass title, then the deed of A's vendor could not be set up by A as color of title against the purchaser from the sheriff. Everett v. Smith, Busb., 303. 23. An ordinance of a town, not under the seal of the corpo- ration, noi expressing a consideration, and not delivered to the parties claiming under it, cannot amounl to a conveyance of real i e, and is not even color of title. Commissioners of l;,,i fort v. Duncan, 1 denes. 239. 24. J he e,,py of a script purporting to be a will, taken from the book of the record of wills in a county, but of which there is no evidence that it has ever been proved as a will, is of no avail even as color title. Sntton v. Wescott, 3 Jones, 283. 25. A deed made by a clerk and master in equity after he goes oul "i office, upon a sale made by him while in office, is color of title, though it may not be otherwise- operative. Wil- liams v. t ' .. ir'i. \ Jones, 20G. •2 denes, 159. 28. A deed cannot operate as -color of title, so as to have effect beyond the estate which it professesto pass. McRae v. Williams, 7 dunes, 430. 29. A grant from the State, purporting to be made in obedi- ence to acts of the general assembly, providing for the relief of persons whose title deeds had been destroyed by the burning of the courthouses, &c, of the counties of Hertford and Montgo- mery, is color of title. Krorl v. Hinson, S Jones, 347. COMMISSIONERS FOR PERFORMING A PUBLIC DUTY. 1. Where a public act is to bo done by commissioners appoint- ed for that purpose, and they, or so many of them as by the terms of their appointment are required to act. do meet and confer, and a determination is made upon the subject by a majority of them, the majority will conclude the minority, and their act will be the act of the whole; and after a decision once mail, the commissioners have nothing further to do. They axe fundi of- Jifin, and cannot afterwards meet to annul or vary the act which they have done. State v. King, 4 Dev. and Bat., 521. 2. Where certain commissioners, appointed to act on behalf of the public, in making a purchase or accepting a donation of land, accept a proposition for a gift of a piece of land, to be laid off in either of two ways at flic option of the commissioners, and a part of them are authorized by the whole, to lay off the land without specifying in which way, the act of the minority in laying off the land will net he valid without the assent of the majority; though if the proposition had not been in the alterna- tive, the act of laying offthe land might have been performed by any one or more of the commissioners, or by any agenl or at- torney, provided that the act was done in conformity to the terms of the proposition. I bid. 3. A proposition to give a certain quantity of land for tho use COMMON CAEEIER— COMMON SCHOOLS. 233 of the public, to be laid off twenty poles on each side of a cer- tain lane, commencing at a designated line and running thence to a particular river, is complied with by a donation of land laid off in the form of a parallelogram with the lane in the middle, and extending to the river, though it may not have the river for the whole boundary on that side. Ibid. 4. "Where an .act ©If assembly, in one section directs a site to be selected for a towa in a newly erected county, and in a sub- sequent section enacts that the county court of the comity, "at its first session," shall appoint commissioners to sell the lots in the said town, the first 'court which sits after the site is selected, ami not the first court after the enactment, is the one vested with authority to make the appointment, ami if an appointment be made before the selection of the site, it will lie premature and revocable at least, if not absolutely void. Ibid. 5. Where commissioners are appointed by an act of assembly, tn "select.and determine a site for the permanent seat of jus- tice " in a county, and are directed when they have selected a site, tn give notice to another set of commissioners appointed by the same act for the purpose of acquiring a title to the land so selected, tke commissioners for location may make a c mditional selection, and if the condition be not complied with by the ■owner of the land selected as the site, they may make a new ..selection. Herbert v. Sanderson, 1 Winst,, 282. COMMON CARRIER See (Carrier.) COMMON SCHOOLS. 1. Although the chairman of the board of superintendents of common schools may nut have been appointed on the day pre- scribi i by the statute, and although the Dond he gives may not luivi- been directed by the county court, yet if he accept and act under (the appointment, he and bis sureties are bound by the bond, as a common law bond. States. Perkins, LO Ired., 333. 2. By the' act of 1844, a right of action accrues to tin- chair- man of the. board of superintendents of common schools, 234 COMMON SCHOOLS. against the sheriff for failing to pay over the school tax on the 1st day of November, in each and every year; and if the chair- man neglect to bring such action at that time, he is himself lia- ble to an action on his official bond. Stcdev. Lindsay, Busb.. 323; (SeeEe\. Code, eh S6, sees 29 ami 32>) 3. Under the act of 1844, ch. 36, regulating common sch ioIs, a scholar, regularly attending a common school, was not bound tj> work mi a public road, during a holiday occurring within the period of the session, that is, during the time for which the beacher was employed under the 13th section of the same ac1 Estes v. Oxford, 4 Jones, 474. 4. A school committee undes the act regulating common schools. Rev. Code,eh 66, have na authority to employ a teacher fir a period i beyond the time when their term of office expires. Taylor v. School Committee, 5 Jones, 98. ;">. Whether a judgment in the ordinary form can betaken against a school committee for a teacher's wages, and whether the remedyis not by mandamus, quaere. Ibid. 6. The act of 1854, Rev. Code, ch. 66, on the subject of com- mon schools, did not repeal the provisions of the acts of 1844 and 1848, prescribing the appointment of a chairman of the hoard of superintendents, and the tenure and extent of his office. It was held, therefore, that where a chairman gave his bond in 1855 and continue, 1 in office without any new appointment until April 1857, when a successor was appointed, he and his sureties were liable on such bond for an unexpended balance of school money i u his hands in 1857. Chairman of Common Schools v. Daniel, 6 Jones. 411. S. P., Sftuggs v. Stone", 7 Jones, 382. 7. Where a person was a superintendent of common schools for several consecutive years, giving bond for each year, and then gave a bond lor the year 1853, it was held, that all the amount that had come to his hands that could not. lie shown to have been misapplied or wasted in the previous years, was recoverable on the last bond. Ibid. 8. When a chairman of the board <<\' superintendents of com- mon schools, mi going out of office, gave his own note instead of the money in his hands to his successor, and upon being re- appointed after a lapse of two years, received the same note back as a part of the school fund and gave a release in full to his pre- decessor, it was held, that, on his subsequent inability ami fail- ure to pay such note, he and the sureties to his bond given on his last re-appointment were liable for it. Cooper v. Cherry, 8 Jones. 223. See (sheriff — Of the liability of sheriffs and their sureties. 60. ) COMPROMISE, &c, &c. COMPROMISE. 1. 'Wli'i''' one party offers to pay or give the other a certain sum by way of compromise, and the offer is rejected, it is in no way obligatory. Nor is it an admission of the tad that tin' de- fendant owed the sum offered. When a proposition of that kind is rejected, the rights of the parties remain precisely as they were before it was made. Poteat v. Badget r 4 Dev. ami Bat., 208. 2. An offer to compromise is not evidence to charge the party on -the original cause of action; but a concluded agreement of compromise must, in its nature, be as obligatory, in all respects. as any other, and either party may use it, whenever its stipula- tions "i- statements of tacts become material evidence for him. Sutton v. Robeson, 9 Ired., 380 3. A court cannot strike out an entry of a compromise in a suit ami order it for trial, because it has been imperfectly enters ed, or has nut been performed. The proper course is to order an amendment nunc pro tunc so as to make the' record speak the truth, and then to enforce tin; performance of the compromise, thus properly entered, by attachment or other means usual in such eases. Cox v. Cox, 8 Jones, 487. CONCEALING THE BIRTH OF A BAS- TARD CHILD. See (Indictment — In what cases an indictment will lie. 22.) (Bastardy— Concealing the birth of a bastard child.) CONDITION. 1. A condition or limitation, annexed to an estate, destroys the whole of the estate to which it is annexed, and not a juni. only. Bennett v. Williamson, 1 Dev. and Hat., 282. 2. An estate once vested cannot be defeated by a condition or forfeiture, without some act on the part of the grantor or his heirs, by which to take advantage of the condition or forfi iture, 236 CONFESSIONS— CONFISCATIONS. even though the words of the condition be "the estate shall thereupon be void and of no effect," which words have the same legal import as the words "ipso facto void." Phelps v. Ghesson, 5,2 I red, 194. 3. One who prevents the performance of a condition, or makes it impossible by his own act to be performed, shall not take ad- vantage of the non-performance. Cape Fear and Deep Hirer Navigation Company v. Wilcox, 7 Junes, 481. 4. A treaty is in its effect an executor}" agreement, and where an estate was limited by treaty to one for life, with a remainder in fee to his children, on a condition extending to both estates, it iveis held that, on breach of such condition, both estates were defeated ipso facto without entry. Welch v. Trotter, 8 Jones, 197. See (Bond — Of the construction of bonds and the condition.) CONFESSIONS. See (Evidence — In criminal proceedings and Indictments — 2 4-5-8-15-17-32-33-34-51-64-68-87-101-104-105-114-122-124 128-129.) (Evidence — Admissions, declarations and acts of par- ties, privies and others.) CONFISCATION. 1. An act of assembly, passed during a Mar and confiscating the property of an alien enemy by name, is at least as effectual in vesting the property in the State, as any office found according to the practice in England Bayard w.. Singleton, 1 Mar.. 48, (42.) 2. The confiscation acts r so Ear as they interfere with the treaty of peace with Great Britain, were annulled by the treaty. Ham- ilton v. Eaton, -2 Mar., 1, (83.) 3. All lands, the legal title to which remainedin Henry Eus- tace Mc< 'ulloeh, on the 4th July, 1776, were confiscated, and the legal titile thereof vested in the State. Cunningham v. . Conf. Eep., 77, (210.) 4. The proviso, to the 6th section of the confiscation law of 1779, diil not vest any title in the wife and children of the absen- tees. Faris v. Simpson, Conf. Rep,, 178, (294.) CONFISCATION.— CONSCIPTION. 237 5. Under the confiscation law of 177il titles were not divested out of the persons coming within its operation, without proa l- ings in the nature of an office found. But by the second confis-j cation act of 1779, the estates of the persons named therein were divested by force of the act itself. Ibid. 6. When confiscated lands were sold by the- State, and the Contract was relinquished and the lands surrendered to the State before the year 179-4, the lauds passed to the University by the act of- that year. HugJues v. The University, Conf. Rep*, 370. (446.) 7. Where a deed in trust of land was made to a linn consist- ing of several partners, all of whom except one afterwards became subjed to the confiscation laws, U was held that this one was ad- uate and competent to hold the land and execute the trust, University v. Bice, ('nil'. Rep., 497, (">47.) 8. The confiseation acts of 1777, 1779 and 1789, applied to lands conveyed ly one alien enemy to another, but not to lands conveyed by an alien enemy to a citizen, before the acts were passed. Gam/pbeU v. McArthur, N. C. Term R., 115, (552..) 9. Under the eonfiscation laws of the State, the county court had nei authority, in the absence of commissioners, or other' officers appointed bylaw for that purpose, to seize, condemn and sell the property of any tory of the revolution, then dead, without notice to his heirs. McPhaulv. QUckrist, 7 Ired., L69. See (Constitution — Acts which have been declared, uncon- stitutional. 1.) CONSCRIPTION. 1. A person liable ts military service as a conscript, under the act of t lie Confederate Congress of April, 1862, and who, by virtue of the 9th section of that act. regularly procured a dis- charge by furnishing a proper substil te, cannot again be enrolL d a a conscript under the act of September, 1862. In the matt ,' yan, 1 \\ inst., 1. ■J. Pi .- one who ha:! been "placed in the military service of the Cunt'- hi the field,"under the conscription aci of 1862, and were in such serviceat thetimeofthepassage of1 be exemption act of < Ictober, l^o'j. were held not to be entitled to exemption asrneeh - erthatact. Inthe matter of Gruyer r l Winst., 66. 3. But where : lacksmith, after being enrolled, was, at the time of the , age of the exemption act, not placed in the service in .hi' field, but was detailed to work on a government jontract, am! did so work at his trade, at accustomed wages, not 238 CONSCRIPTION, . having received any bounty, pay, rations or clothing, up to that time, // was held that he was entitled to exemption. Ibid. 4. The act requires that the trade, on which the claim of -a mechanic to exemption is founded, shall be his regular occu- pation and employment, not that at which he may work occa- sionally and at odd times. In the mutter of Grantham, 1 Winst., 73. 5. A schoolmaster, whose occupation had been suspended for* twelve or eighteen months of the time required '■'■•!■ the previous pursuit of his business, is not entitled to exemption, under the art of October 1862. In the matter of DolMite, I Winst, 74. C>. A person who had been drafted, and who had put hi a sub- stitute that was accepted by the officer appointed to conduct that business, iuas held not to be liable to conscription under the act of September 1862. In tin: mutter of Hitter, 1 Winst.. 7(i. 7. The circular of the War Dapartment, dated 20th October, 1861, allowing substitutes to be received after the companies were formed and actually in the service, Was held to apply by a liberal construction to companies while in the process of being recruited and organized, and when a substitute was received under the latter circumstances, several of the formalities re- quired for obtaining a discharge were held to be immaterial. Ibid. 8. In the conscript-ion of principals, under lee acts of the 5th of January and 17th of February 1864, it a c< itra svere made ],ei ween the government and the eonscripl by the hlter furnish; ing a substitute under tl e 9th Si < tion of the act of loth April, 1862, th< ument has a right to annul the contract, by virtue of the power inherent in ail governments, whosi organic law does not expresslj deny to them thatpower. ■• • 'u, v. Hal- tun, 1 "We it. But ii seems that no contr cL I .eminent with the conscript who furnished a substitute Ibid. lu. A subsl itute who had ne"s er been liable to c in nription, having been above the age of ft ar /hen he became a sub- stitute, is not discharged from the service by the consi ription of his principal, under the act of Congress of the ,"> h of January, 1864. McBaniel f. Trull, 1 Winst, I. 11. A conscript between the ages of forty-fi fifty, en> rolled under the act of 17th February, 1864, . ; I to his discharge when hi becom th ageof'fifb slcr v. B raw- ley, 2 Winst., 4. 12. The Congress of the Confederate States hai no power to -■onseript an officer of the Siate. Hence apblici nanoi anini or- porated town is, as an office] of the Mate, exempt from conscrip- tion, when the legislature of the State has declared that the , ii;r , or and police of such town shall be exempt, because of their I I INSCRIPTION, 239 ary in the administration of its government. John' mialh ft, 2 Winst,, 10. 13. Thi constitution and laws of the State determine, conclii^ sively and exclusively, what officers are necessary for the administration of its government. Ibid 14 Co i 3 has no power to make the certificate of 1 ie gov ernor nei i - ary to the exemption of a State officer, and unless so m: State legislature, such certificate is unneces- sary. L5. A man, who has been enrolled a a cons ipt, becomes thereby a soldier in the army of the Confederal and his appointment afterwards, to an office under the State go> i fnment, duos not entitle him to exemption. Smith V. Prior -1 Winst., 19. 16. The governor's certificate can havi no ct in such a. case, for the person is not an officer, his appointment being void. Ibid. 17. A person who isabonded exempt from conscription, on it of his being the owner or manager I. bodied slaves, under the act of congress of 17th February, 1864, sec. 10, clause i, par. 1, 2 and 8, is in the servii f the Confederate States, ami is. therefore, not liable to service in the home guard te. Wood \ , Bradshaw, 2 Wi isl . 22. 18. Application for exemption from milii count of bi i i v_ ■ uer or manag | slaves, iiiary, 186 I : and '■' wets 1 ■ Id thai a delay to ■22A Ni had lo i Win- ston 1 in March, 186 I under tin ad of the of February, of , ty-five years i of his enn [to serve rmy during the ... :/ % 20. I of color an and to by the act of f the 17th February, U 2 Winsl 21. I . intmentto an office, ruidi i ent, F a cii be Sta1 rho is in f T j ie . . , anient, cannot bavStl . 'i is re- cognized by the constitution of th utial to its Bridgman v. Malhtt, 2 Wins ,112. 22. A person, who has been enrolled co n b, ie not ex- empted From military service under tl : bruary, 240 CONSIDERATION.— CON'S PIRACY.— CONSTAB LES 1864, by becoming the driver of a mail coach. Johnson v. Mat- left, 2 Whist, 125. 23. A contractor to carry thetnail is a civil officer ( >f the Con- federate government, and therefore exempted from service in the lome guard by the act of the general assembly, passed at the session of July, 1863, ch. 10. BringU v. Bradshau; 2 Winsfe, 129. 24. A person, who was between the ages of eighteen and forty- five, at the date of the passage of the act of 17th February, 1864, and arrives at the age ot forty-five before he is enrolled, is ex- empt from military service in the regular army for the war, but is Hal ile to serve as a soldier in the senior reserve*]. Goodson V. Caldwell, 2 Winst., 135. 25. A man, otherwise liable to military service, under the act of the 17th February, 1864, is exempt therefrom by becoming the employee of the editor ofa newspaper, at any time before sii- rollment. Unchurch v. Scott, 2 Winst., 137. See (Constitution — Acts winch have been declared constitu- tional, 26,) ^Habeas Corpus,. 8-9.) CONSIDERATION See ( Assumpsit — Of the consideration.) (Bonds — Of the con- sideration of bonds.) (Dwd — Of the consideration.) (Bills of Exchange and Promissory notes — Of the consideration ofa note or endorsement.) CONSPIRACY. See (Action on the case— Conspiracy.) (Indictment — When an indictment will lie, 23-25-29-30-47.) (Indictment — Form' and matters relating theivtn, 101.) (Indictment Limitation of time within which an indictment Mill lie, 6-7.) (Evidence — In criminal proceedings and indictments, 82. > CONSTABLES— I. 241 CONSTABLES. I. Of their election or appointment. II. Of the power and authority of a constable. III. Of their 'bonds. IV. Of the liability of them and ilieir sureties. I. OF THEIR ELECTION" OK APPOINTMENT. 1. It is not necessary that the county court, authorized to appoint a constable in case of a failure by the people to elec- one, or in case of a vacancy from any other cause, should be the court immediately succeeding the time appointed for such election, or immediately succeeding sue!; vacancy. The county court, at a subseqw nl t im 3evi u justices being present.) may fill the vacancy. State v. Hull. 2 [red., 267. 2. An entry on the county court records, that "on motion A B was permitted to renew his bond as constable by giving C D and E F, as sureties, in the sum of $4,000," is no evidence that A B was duly appointed a constable. Ibid. 3. Seven justices must necessarily be present to make a valid appointment o-f a constable. If a less number only were pre- sent, the appointment and the bond taken tinder it are both void State v. Wall, 2 Ired., 212. (The bona is not so now. See Kev. Code, ''li 78, sec. 9. ) 4. The power gi% en to the county court, to appoint a constable in i a of a vacancy, is a special power, and cannot be exercised without the presence of seven justices; otherwise both the ap- pointment and the bond given under it are void. State v. Poic- (//. 2 Ired., 275. 5.' The county court has no jurisdiction to appoint a cons-fa- ble, except in case of a vacancy in the district. Statev. Light- foot, 2 Ired.. 306. 6. The "county town," which, under the statute 1 relating to constables, is i ntitl d to an additional constable, means the town which is the seat of justice for the county. Ibid. 7. Where theonlj evidi uce of the appointment of a constable was an ordi r of the county court in the following words: "Or- dered that . and K. 1'. his sun ties." it was held, thai this ad of the court Was void and conferred no authority, it not appearing thai any case existed in which they could by law exercise the power of appointing a constable. State Briggs,3 Ired., 357. 8. The county court is the p . • of the return of the election of a constable, and its adjudication thereon, while it remaius in force, cannot be questioned-; aud in such case parol 16 242 CONSTABLES.— I evidence cannot be received to show that in fact no election took place. State v. Washburn, 4 Ired, 19. 9. When? a suit is brought on a constable's 1m, ml. and it ap- pears that the constable was appointed by the county court, it is incumbent on the plaintiff to show that the people of the cap- tain's company had failed to elect a constable, or that the person so elected hail died, or failed to qualify and give bond and ; secu- rity, or that there was a tie; as, under other circumstances, the appointment of the court, and of course tile bond are void. State v. Magness, 1 Ired., 217. 10. Where the only evidence of the appointment of a consta- ble was that "A B was appointed constable tor the town of Ox- ford, who. entering into bond for $4,000 with C D, &c, as sure- ties, was duly qualified," it loasheld that, in the absenoeof any evidence from the records o\ tli \ court, that there was a vacancy, the county courl had no power to appoinl a constable, and that a bond given under such appointment was void. States. W T i\ 1 1 i. • 1 1 the law required constables to be elected, to wit, by the p 'ople. State v. Fdleniaider, 4 [red., 364. 14. The following efcry on the records of t he county court; " It appearing to the satisfaction of the court • ii.. (and six other justices) that E. S. has been appointed constable in Capt P.'s company, the said E. S. comes into court and enters into bond &c, which is approved by the court," imports th I E S. had been chosen by popular election, according to law, and that it was so CONSTABLES— I.-IL-III. 243 decided by the county court, and therefore the appointment' was a valid one. Welch v. Scott, - r > Ired., 72. L5. Where the records of the county court stated that* 1 ' the court appointed J. < r. E. constable, he having been elected ; ,, ( lapi I's company ;" U was held that this was evidence of an election by the people, and not of an appointment by the court. State v. Eskridge, 5 Ired., 411. 16. Where the only record of th r appointment and qualifica- tion of a i nstable was in the following words: "J. R. M. appeared in court and filed his bond as constable for the county of H, for one year, and was duly sworn;" it wa-i held that under 1 the art of L844, curing defects in the official bonds of certain officers therein named, this wag sufficient evidence of the ap- pointment of the constable, and of his having qualified and given bond. State v. McMinn, 7 Ired., 344. (See Revised Code, ch 78, sec. ',).) 17. The term, for which a constable is elected or appointed, does not expire upon the day, of the term of the court, corres- ponding with that on which he had the year before qualified and given bond, but it expires at the instant: when his successo] qualifies and gives bond. And the same construction musl be given to the special provision for filling vacancies. State v [red., 3:!i. 18. Where a constable is appointed by the county court at a May term, bis appointment expires ;- ; the next February term, which is the regular time prescribed by law for the qualification or appointment of constables. Statev. Bu cham, 11 Ired., 436. 19. To show that a person was a constable, ii must appear tl ii Ii i-bvtod In the people, as prescribed bi the act, Rev. Stair ch. 24, or wa c< art to supplya vacancy. as provided by th v. Lane, 13 Ired., 253. (See Rev. Code, ch. 24, sec. 2 and 6.) See (Record, 14.) II OF THE POWER AKD At'THORITV OF A CONSTABLE. 1. A constable' cannot, either under a warrant, nor by virtue of his office, make an arrest out of his own county, although liable lief that a felony has : > -n < oni'mitted, and that the peismi arrested was tic- felon. C- r7. 8. A constable is no1 obliged to receive claims tor collection. as he is bound to obey a legal mandate; but if he do so receive them, he and his sureties aire bound in respect thereof, under the act of 1818, so far as thev have consented to be bound, "to endeavor diligently to collect them." The degree of diligence is no more, and no less thaai' is required by law from other col- lecting agents. State v. Holcombe, '1 Led.. I'll. 9. A constable is no! bound to sue out a warrant on a claim put into his hands for collection, where the issuing of such pro- cess would be entirely fruitless. Ibid. 10. An action upon a constable's bond, for a breach of duty, must be brought upon the bond for the year during which the breach occurred. No action for such breach can be sustained on the bond given for the succeeding year, the bonds not being cumulative. State v. Lackey, '> Led., 2.">. 11. Where money has been' collected during one year, upon a claim. put into a. constable's hands, although a demand upon him, 246 CONSTABLES.— IV. to pay what has been so collected, is not made until the next year, the breach occurred in the former year, and the sureties for that year are alone responsible. J hi<(. 12. Where a person put into the hands of a constable, for col- lection, a note, the amount of which exceeded the jurisdiction of a justice, and the constable procured the maker to substitute for it two ]" t: s eai ; i within tlu |: lisdiotic/i i 1 ; ;usti; ■, ard aftei wards failed to collect the same when he might have done so, it was held, that he and Ins sureties were liable on his official bond for a breach of duty. State v. Stephens, 3 [red., 92. 13. In cases where a demand of- a claim is r q ured before suit can be brought, as against a constable for money collected, when the demand is made the claim is turned into an ordinary debt, and it becomes the duty of the debtor to pay the creditor in a reasonable time. Stati v. Sugg, 3 Ired., 96. 11 In an action on a constable's bond for a breach, in not col- lecting notes placi or collection, where it appears that the constaJ A :, before ii1 broug ht, I >■ d back the notes to the plaw bifF, and the On btors were st.il] good, the plain- tiff is not entitli d, by rei i o of the con- stable in not collecting to reco r tin ivhole i mi of the debts, but, unless b< shi ctu i i tied thereby, he is entitled onlyto nominal damages. State v. Skinner, 3 Ired., 564. (Sheriffs and are, in such cases, now liable for, the full amount of the claims put into their hands for collei tion. Rev. Code, ch. 78, sec. 3.) 15. "When in 1835, notes, the: ' of wl L< b were proved to be solvent, were put into a constable's hands for ci llei tion, and on the trial of an action for the breach of his bond, which action was brought in 1840, he failed to account for or produce the notes, it ivas h id that the whole amounl of the notes might be recovered in damages. State v. Eskridge, 5 [red., 411. 16. In an action by v> i isl a constable's sureties un- der the lev. Stat., cli. 81, see. 3, to recover moneys collected by a, constable by virtue of his office, proof that the constable had received goods or labor in satisfaction of the claim he had to collect, is sufficient to entitle the plaint ■ to n i over, it not being requisite that he should have n e< ived the actual money, Wilson \ ' ( 'qffidd, . r > fred., 513. (See liev. Code, ch. 78, sec. 4.) 17. A constable has no official authority to collect money, ex- cept uji^v execution; and he and his sureties .are only liable on his official bead, under tin' act of 1818, giving 'he creditors a remedy on that bond for notes, accounts, tfec.^ut into his hands for collection, when it is proved that the constable was the cred- itor's agent for collecting tin' money due onihe claims. /('/'/- Hams v. Williarnso®, 6 Ired., 281. (See Rev. Code, ch. 24, see. 7.) 18. A person placed in the hands of a constable for collection CONSTABLES.— IV. 247 a note for $158, upon which the constable took out two warrants against the debtor, one for $80 and the other for $78, as due by note, and the debtor appeared and confessed judgments before the justice according to the tenor of the warrants. Unonthese executions issued, and the constable failed to levy them, as he might have done, on property subjecl to their eatis- faction, i7 was held (Btjffik C. J. dissentiente) that the judgments the debtor, in rh< manner stated, were valid judg- ments; that he was estopped to deny their validity; and that the constable was 1 cutions i sued on them. State v. Mangum, 6 I red., 369. 19. Where le receives notes or o1 her \ '■ ! aces oi , times before his office expires and does not collect r want of time, and afl r his office expires, refuses to ■ owner the notes or other evidences of debt so is hands, he and his suretie: on his official bond are tction for the amount. Statt v. Johnson, 7 [red., 77. 20. If the ontinued in office for another year, and the creditor had permitted the evid of debt to re- main in !• mighl I nee of a new contract ii -■-, upon ' ■■■ cond year would be I ' ' Ibid. 21. The bonds of cons 10 are re-appointed from year to year, are not cumulative; and, therefore, sureties of a con- stable : iit1 durh official year for which thej became his sureties, though at the if the year he i : been re-appointed. Davis, 7 Ired., 198. 22 fnan action upon a constable's bondfor not collecting bonds, notes, &c, placed in Ins hands for collection, after a suffi- cient time for thai purpose ha > apsed, it is incumbent on him or his suretie that he could not have collected the money, by reason of the insolvency of the debtors or otherwise, and also that he had returned or offered to return the si curitiee for the debts to the creditor, otherwise he and his sureties will be liable for the amount Stab v. Wall, 8 Ired., 11. 23. Where a claim was put into a constable's hands for collec- tion during the year 1839, and he was guilty of a breach of duty in ii'- collecting it during that year, and he was re-appointed yi ar 1840, and, the claim still remaining in his hands, he was again guilty of a similar breach of duty, it was h>i< : that the party injured had his election to sue on the bond of either year, or on both bonds; and further, that the circumstance, that he might recover on th-c second bund, did not mitigate the damages he had a rightto recover on the first, Statev Wall. 9 Ired.. 2Q. 24. A constable is the agent of the creditor oi d ring the year he continues to be a constable; and the law will not imply 24* CONSTABLES.— IT. an agency for a longer time than the appointment, which gives rise to it, is to continue. Ibid. 25. In an action against a constable for a breach of his official bond, in not collecting a debt, the relator is entitled to recover at least nominal damages, when he shows negh d and unreason- able delay in the collection; although the plaintiff may have re- ceived the amount of his debt from the constable after the com'7 mencement of his action State v. Mangum, '•' Lred., 210. 26. The person to whom the money is due, on a claim put into the hands of a constable for collection, should be the relator in an action on the official bond of tin- officer for a breach of hia duty in relation to such claim, ami not the agent of such party; though the claim had been first put into the hands ol the latter he being a constable and having transferred it for collection to the person sued. Statcv. Former, 1<> lred.. 45. 27. The party, with whom a constable makes the contract tor the collection of a note, is the proper relator in an action on his official bond, ami not the person to whom the note is payable. Sluli v. Corpening, 10 lred.. 58. 28. The reputation of the insolvency of a defendant, in an ex- ecution, will not excuse I who has it, from liability for aeglect of duty in not endeavoring to ascertain for himself, whether there is property subject to the execution. State v. Ed- wards, 10 Lred., 242. 29. Constables 'ire not general collecting agents, except so far as relates to- claims within the jurisdiction of a justice; there- fore, where -mi order of (lie county court was put into a consta- ble's hands for collection, it was held, that though he received the moneys his sureties were not liable. Statev. Outland, 11 lred.. 134. .">(). Where,.in an action upon a constable's bond, the breach assigned is that the constable "h;*d failed to return to the rela- tor fche note which he had placed in his hands for collection," it is a sufficient defence for the officer, to show that he had ob- tained a judgment on the note; forthen the note- became merg- ed in the judgmenl and remained in the hands of the justice. — States. Hooks, 11 lred.. .".71. 31. Where a constable was appointed at February term, 1848, and, in August of that year, a claim was put into his hands fo ^col- lection, on which he obtained a judgment, and a stay was grant- ed by a justice, which expired during February term, 1849, at which time the said constable was not re-appointed, but in July following was appointed deputy sheriff, and then took out ■ v6- cution on the claim, collected it, and failed to pay it ov r, it was "held, that he and his sureties were not responsible on his constable's bond, no default having been committed during the year of his appointment. State v. McGowan, 12 lred., -14. 32. One placed notes for collection, in the hands of L,.a conr- CONSTABLES.— TV. 249 stable, who win! to Alabama without collectii g them., where? upon the owner took them from L's saddle bags, and delivered to G, another constable, taking and placing in the saddle bags a receipt from '. A constable who lias taken a claim to eollect, as an agent, is not responsible for the act of the justice in taking a notoriously insolvent person as surety to the stay of execution, it not appear- ing that the constable was present when the surety was taken, or had any intimation or ground to believe that such surety would be offered. Hardingv. CkappeM, 6 Jones, 350. 38. In a suit on a constable's bond for failing to collect a claim put into the constable's hands, no demand is necessary to be ahown. Nixon v. Baghy, 7 Jones„ 4 250 CONSTABLES.— IV.— CONSTITUTION. 39. Where there i.s an apparent necessity for a constable to proceed i diately bo collect a claim, and be is instructed to do so, sixteen days delay is negligence; and in ordinary cases five months delay is negligence. Ibid. 40. A delay for eight days, to execute a ft. fa. which a con- stable had in his hands, a debtor who only lived ten miles i ': i d to I" a wanl of due diligence, and made the i sible in dai ig s to I b en ditor. Ream v. ,"■ 7 Jones, 150. 41. A constable is bound to the sam degree of diligem ; in ing process, which he has taken ent himself, as in execu- ting tha been taken out by the creditor and put into his hauls. 42. Where claims, wit] ce^s jurisdiction, are put intq the hands of aeon tab? for collection, and he gives a receipt for them, a fchoul adding "con table" to his signature, he will ied to have reci ived them in hi - ifficial 3 wnton ■< 1 Jones, 43. V claim within a jurisdiction, but against a non- a constable's hands for collection,; id be mey butfailedto pay it over, it >'■<: ! held •■ liable for the amount ; official bond. 44. Where 1 I of the county court showed that A was appoinl for on lit was pro\ 'd that he acted h nri the year, although the condil ion of the bond did no! i xp ■ '. I'oi wh^eh he was appointed, ami although the • ipoii H was not made ai the term of the court prescribed by law for appointing constables, yet it was held that he and his sureties \\* re liable under the l.'e\ isi I < 'ode, eh. 78, sec. '.*, for a breach of the bond during the year. Shipment v. McMnn, 1 Winst., 122. See (Evidence— Books of original entries, accounts, receipts, &c, 14.) (Interest, 15.) (Limitations — Of actions on official bonds, i 5. ) CONSTITUTION. I. Wio can declare statutes to be mi- I III. Statutes whitfb liave been declared constitutional. unconstitutional. II. Statutes which hare been declared I IV. Consl ruction of various clauses of constitutional. the constitution. CONSTITUTION.— I.-IL 251 I. WHO CAN DECLARE STATUTES To BE UNCONSTITUTIONAL. 1. The court, will not incidentally jud constitution- ality of a law. Freeim n v Lester, Conf Rep., 73, (206.) 2. It is competent few o an act of assem- bly to be unconstitutial and void; irntj act of i lature i^ within i i d irity, and is to be di clared un- 1 only in cases where no di ub1 i ists. Hoke v. Si racfc rson, 4 Dev. 1. 3. Acts fco istitnl ional ; and wh court belci of lily was drawn in question, ai I was in supp it, and tl ich the contraiy could i d in the supreme court. i ni Bat., 81. II. STATUTES WKICH HAVE BEES DEC] 5TITUTIONAL. 1. Tl aci which au- thorize L the atto i] lenciea to tl: : ' I to 1 astitu- ! State v. , I , 28, (38.) ~J. Tl ' i delin- constitutio did not take away '■ ted rights, bi ir remedy as to righl ;;. ! 1812 which authorized bonds I ution in his and that execution mig i such bonds, was c stitution ! Berry v. H 4. Ai lid in some parts, er it in- fringe the constitntii only such parts of the suspension act as i of conl id. Hence, ywhohad i xi outi 1 a bondunder the act, was held liable to an execution, without a suit, and without notice of a judg- >n. Ibid. 5. The acts of asseml jy increasing the jurisdiction of a jus- tice of the of the pi ic ■ ■ mi titutional. Keddie v. Moore, 2 ., 11. v . P., Richmond, v. Boman, Ibid, 46. Wilson v. Simonton, i Hawks. 482. Smith v. Campbell, 3 1 lawks, 590. 6. \\ ben a cause was removed to the supreme court, at a time when the court on motion for new trials considered mail: law only, and during the pendency of such suit, the legislature declared, that "this couri does and shall possess power to gjant new trials upon matters of fact, as well as law," the law is eon- stitutional and gives to the court power to consider matters of 252 CONSTITUTION.— II. fact as the ground of a new trial. Harrison v. Burgess, I Hawks, 384. 7. The power of limited taxation, for comity, purposes, is nnrs- sarily confided to the several county courts, and its exercise is no infraction of the bill of rights. Lockhart v. Harrington, 1 Hawks, 408. 8. Exclusive enrolments and privileges may In- granted in consideration of public sen ices; w Inch services are a matter of legislative and judicial enquiry. Therefore, tin < barters of llie a, and other like companies are constitutional. Yadkin Narigation Company v. Benton, 2 Hawks, 10. !J. The revenue law, relating to pedlars is not liable to the e; i- ii <:, lonai : i .|, i::jn i i p;ivir.-g the paity ci the rignt ci trial by jury; nor does it violate the spirit of thai clause of the. Federal constitution, which prohibits the states from laying any tinposts or duties on imports or exports. Cowlcsv. Brittain; 2 Hawks. 204. 10. A power of distress gi ren to a navigation company, upon ■i refusal to pay their tolls, is constitutional, the action of re- plevin beii a remedy for its abuse. State v. Patrick, 3 Dev., 478. 11. The act, imposing a tax upon itinevanl dealers in jewelry, is not repugnanl to the c stitution of the I nited States, al- though the jewelry may have been imported from another State. Wynne v. Wright, 1 Dev. and Bat., 19. 12. The acl of I i tigress of 1825, ch. 275, see. 35, exempting postmasters from serving on juries is constitutional. Stated Williams, 1 Dev. and Bat., 37'2. 13. The acl in the Raleigh and Gaston railroad company declared constitutional. Davis v.. Raleigh and Gaston railroad company, 2 Dev. and Bat., 451, 14. The acts of 1809 and 1816, prohibiting the circulation of small promissory notes or due bills as money, are constitutional. State v. Humphreys, 2 Dev. and Battle, 555. (See Rev. Code, ch. 36, see. 5 and 6.) 15. The act of 1831, ch. 13, which provides for the collection of fines imposed upon free negroes, and free persons of color, convicted of any criminal offence, by directing them tobi hired out under '.■erfain rules, regulations and restrictions, is not re, pugnanl to any of the sections of the constitution, and \i tore constitutional. State v. Manuel, 4 Dev. and Ba1 ,20 ! e Rev. Code, ell. 107, see. 75. ) 16. The acts of 1800, 1808 and 1809, prohibiting I of spirifeious liquors, and other articles, excepl by licensed stores and taverns, near a church, meeting house, o ■■ her p'u ci \. ' ere persons are assembled for divine worship, arc e, institutional. State v.. Muse, 4 Dev. and Bat.,. 319. (See Revised C do ch. 97 4 „ sec 7.), cossriTrnox.— n. 253 17. The legislature has a constitutional right to pass an act, such as the act of L840 ch. 53, entitled "an act to tix the loca- tion of _the town of Hendersonville," changing the location of the seat of justice of a eo'unty, although a contract for the ] nr- chase of a particular siti- had already been made by the commit .oners appointed by law for that purpose. State v. Jones, 1 lied., 414. 18. The act authorizing the wardens of the poor to s< ize any horses, cattle, hogs or sheep, belonging to a slave, is not uncon- stitutional. McNamara V. Kerns, '1 Ired.. 66. (See Rev. Code, ch. 86, sec. 20.) 19. The act of 1840 ch. 30, entitled "an act to prevent free persons of color from can I arms," is constitutional. State v. Netcsom, 5 [red., 250. (See Rev. Code, ch. 107, sec. (56.) 20. ttisthe settled construction o thecoi itionof the United States that no limitations contained in thai instrument, upon the powers of government, extend to or embrace the different states, unless they are mentioned, or it is i xpreseed to be so in- tended. Ibid. 21. The charter of the town of Wilmington, authorizing the commissi* rs' to tax transient traders, for purposes of police; is not unconstitutional. But the tax for that pi by the act of 1811 ch. 64, must be laid annually. Co of Wilmington v. Eohy, 8 Ired., 250. 22. The aci of 1850 ch. 248, which authorized the adminis- trator of. the deceased sherifl of Currituck county to collect cer- tain arrearages of taxes, was nol uncoti titntional, though by the gen ral law the sureties of a deceased si .. author- ized to colled in such cases. Morton v. AshU.e, 1 Jones, 312 (Sc prii ■ acts of 1850, ch. 248 and Rev. Stat., ch. 102 sec 43, Rev. Cod , ch. 99, sec. 83.) 23. The act of 1850, entitled "an act to repi al an act entitled an act, to ; ive jurisdiction to the superior o Robeson, in all cases where the intervention of a jury shall be is constitutional, though il maki s i1 ' with the majority of the justice: ol the couutj count to jury trials therein. Thompson v. Floyd, 2 Jones, 313. 24. Thead of 1855, "to provide forthe better government of the town of Louisburg, in Franklin county." which gives to the magistrate of police power to fine offenders for disorderly con- duct not cognizable by the general law, is constitutional. ' Com- missioners of Louisburg v. Harris, 7 Jones, 281. 25. The act of 1862, ch. 57, sec. 86, par. 19, sch. lule B, wan ratified the 11th day of February, 1863. It imposed a tax of all the ndt profits above 75 per cent, on the cost of production on every person or corporation manufacturing cotton or woolen cloth, counting from the 1st day of January, 1863. It was con- tended that the tax on the profits between the 1st Jay of Janu- 254 CONSTITUTION— II.-III. arv, and the lltll of February, 1863, was a tax on past profits, and therefore, in effect, a poll tax imposed contrary to the "'Ordi- nance in relation to taxation," passed by the convention of 18S1, and that the act was 6ft that account unconstitutional; but it was held that the tax imposed was upon present and accruing, and not upon past profits, and that consequently the act was constitutional. Murehison v. McNeill, 1 VVinst, 220. 26. The ads of the Confederate Congress" of the 5th of Janua- ry and 17th of February, 1864, concerning the conscription of principals who have furnished substitutes in the army, arc con- stitutional and valid. GatlinY. Walton, 1 VVinst, 333. See (Corporations— Of particular corporations, 6.) (Fraud — Conveyances, agreements, &c, fraudulent as to creditors, 71.) III. STATUTES WHICH HAVE BEEN DECLARED CTNCONST1TUTIONAL. 1. By the constitution of the State, every citizen has aright. to a decision of a jury in relation to his property. The act of assembly, therefor* I 1785, requiring the court to dismiss, on ;, the suits brought by persons, whose property had been confisca d, ■■<■ in t the purchasers, on affidavit of the defend- ants, that they were purohasi rs from the commissioners of contis* cated property, is ui constitutional and void. Bayard v. Single- toil, Mar. 48,(42.) 2. An act suspending the payment of debts, such as the sus- pension law, passed in 1812, is unconstitutional, as tending to im- pair tie obligation of tracts. Jones v. C ttcn 'en, LCar.L.R. 384, (55.) 3. An act of ass. mbly cami b ta away 1 ty of a I private pi rson nor of a common corporal ion. much less of the rersity, which is directed to be established by the constitu- tion. The act, therefore, of 1800, the ohjed ol which was to resume the escheated properl I e University by for- cts, is repugnant to the c on and void. Trustees of the University v. Foy., 3 Murph:, 58. S. C, 2 Hay., 310, (495,') and 374, (572.) 4. An act of the assembly a u i ipating slaves belonging to the est ' ' sonsent of th adrfiinis- trator, is unconstitutional. Allen v. Peden, 2 Car. L. 1!. 638, (442-) 5. An act of 17-88, declaring that certain deeds which were not executed according to law, should be held, deemed and taken i nd effectual in law, for the conveyance of the lands iii: ntioned in it, is unconstitutional, being in violation of the 4th section of the bill of rights, which declares the legisla- tive, exi ;utive and judicial powers of governmi nt to be e pa- rate and distinct. Robinson v. Barfidd, 2 Murpb. 390. 6. The act of 1832, respecting the election of clerks of courts, CONSTITUTION.— IIT.-IV. 255 is Tmconstitutlona] and void, so far as its provisions have the effect of remo-ving clerics then in office, before their regular terms had expir I. Hokev. Henderson, 4 Dev., 1. 7. A legislative chartertoa corporation is a contract of invio- lable obligation! and no State can constitutionally pass any law impairing such contract. The act, therefore, passed in 1850 en- titled "an ad in relation to exchanges of notes between the several banks of this State," which declares that when a bank or its branch presents for payment a note of anothei bank, the latter may pay its note with a note or notes of the same, with- out regard to fche place where the rame may be payable, is con- trary to the constitution of the United States, and therefore of the State v. The Bank of Gap Fear, 13 I: d, 75. 8. The act of 1850, ch. 334, sec. 9, giving to tb ■ mtendant of police of the t( wii ©f Charlotte The power of trying assaults and batteries, is unconstitutional and void. States. Moss,2 Jones, 66. 9. The private act of L852, ch. I U. granringa trad of land to B. II. Stanmire, which had b en previously sold by come ere of the State, to another person, and for which the State had been paid by sue h person, or bj those under whom he claimed, was nconstitutional and void, under ail. !. sec. the*' . S. Stanmire v. Taylor, 3, Jones, 207. 10. Tl t'the re em i d!' 185 h ch. 37, si c. 39, ■ imposed a 'rax on the salaries of the judges of tin snpri n superior courl . v as in the o] t of at rn lor uncon ti n tonal much as it indirectly lessened their sal- aries, ci lit:;;' , 1 ;;. sec. -'. < h. -J. of the amendments t< tic cob •■ if the State. Sei 3 rones, s - 11. The act of 1860,1st exl a issioi ■■■. 16 ' called the.;ti\ ! i. i !n::. }• \ ti;a,!a and'tnals befon jufctn s, and the issi Q| cutions, and sales under exi 1 deeds of trusl 'd to bi unconstitutional and void. Barnes v Barnes, 8 Jones, 366. (This act was repealed by the act of I860. 2 session, ch. 11. ) See i Frauds— Conveyances. Agreemi nts, &c. , fraudulent as to creditor , 71.) IV. CONSTRUCTION OF VAEIOl ses of the constitution. 1. The 26th section of the constitution merely intended to prescril >e an uniform mode of issuing writs. U- cfieyv. ( ', rmolt, 1 Murph., ■ 2. Nop i on shall be deprived of hurproperty oi right, without notice ami an opportunity of defending them. .. ;.' Murph., 161. :i. In doubtful cases the court will not declare an act of the legislature unconstitutional, but will only do so when such is plainly and obviously its duty; therefore where the legislature 25G CONSTITUTION.— IV. gave to a bank, created for the public benefit, a summary mode of collecting its debts, the court refused to declare the act to be unconstitutional. Batik of Newbern v. Taylor, 2 Miirph., 266, S. O, 1 Car. L. R. 24(5, (20.) 4. An ordinance of the commissioner of an incorporated town, -which condemns property without hearing the owner is unconstitutional. Shaw v. Kennedy, N. C. Term, R 158,(591.) The bill of rights declares that "no ex post facto laws ought to be made" Expost facto laws are of different kinds. 1st. Every law, which makes an action done before the passing of the law, and which was innocenl when done, criminal, and punishes such action. 2. Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed. 3. Every law, that aggravates a crime, or makes ii greater than when committed. 4. Every law, that alters the legal rules of evidence, and receives [ess or differi nt testimony, than the law required at the time of -the commission of the offence, in order to convict the offender. The enhancement of a crime or penalty seems to come within the same mischief as the creation of a crime or penally. Dickinson v. Dickinson, 3 Murpli., H27. (>. 'flic 4th section of the fill of rights, declaring that the executive, legislative and judicial powers ought to lie distinct, deprives the legislature of this Stale oi all judicial power. Hoek v. // nclerson, 4 Dev. 1. 7. A determination of conflicting rights between two classes.* of persons is a judicial net, although pronounced in the term of a statute. Neither does tin- generality of its terms affect its character. Ibid. 8. A legislative act which deprives one person of a right and vests it in another is not a "law of the land" within the meaning of the bill of rights. Neither is one. which professes to punish a citizen, or deprive him of his property without a trial, accord' iug to the course of tic common law. Ibid. 9. Whether the legislature can in any case lake private prop erty for the use of the public without paying for it. qucere. But, assuming that it cannot, it does not follow that the payment of the compensation must be precedent to, or cotemporaneous with the taking. On the contrary il is competent to the legislature to authorize the taking, leaving the assessment of the quantum, and the payment of the compensation, to he made subsequent. Davis v. iiiihi'jli a:iil Gaston Railroad Company, 2 Dev. and Bat., 451. 10. The assessment of damages to be paid to private individ- uals, for property directed by the£legislature to be taken for the use of the public, need not he made by a jury of twelve free- In ilders, it not being a controversy respecting property, within the meaning: of the 14th section of the bill of rights. Nor is it CONSTITUTION.— IV. 257 such a "trial by jury," as that section requires to remain "sacred ami inviolable." Ibid. 11. A railroad company is a private corporation, its outlays and emoluments being private property; but the mad con- structed liy them will be a public highway, and consequently, they may, upon paying a fair compesation therefor, take private property under the sanction of the legislature, for the use of the company, as being for the public use. Ibid. 12. The 39th, 19th, 3rd and 12th sections of the constitution and the 10th section of the bill of rights commented upon and construed, with reference to the act of 1831 ch. 13, which pro- vides for the collection of tines imposed upon free negroes and free persons of color, convicted of any criminal offence, by directing them to be hired out under certain rules, regulations and restrictions. State v. Manuel, 4 Dev. and Bat., 20. (See Rev. ( 'ode, ch. 107, sec. 75. ) 13. Under the ' s th section of the constitution, a residence within the State for twelve months immediately preceding the 1 day of an election, no matter in what county or counties of the State, is sufficient to entitle one. otherwise qualified, to vote for members of the House of is, for the county in which he resides at the day of the election. Roberts v. Gannon, 1 Dev and Bat, 256. 14. I ■; a e in the county, the constitution intends a domicil in that county. This requisition is not satisfied by a visit bo the county, whether for a longer or a shorter time, it the stay there be for a temporary purpose, and with the design of leaving the county when that purpose is accomplished. It must be a fixed abode, constituting it the pla& of ins home. Ibid. 15. Arguments upon the policy of a law, thoi ! undi ibtedly admissible, are to be listened to with much caution. The interpreters of the law have not the right to judge of its policy, and when they undertake to find out the policy co: I by the makers of the law, tin re is srreal danger of mistaking their own opinions on th; for the opinions of those who had alone the right to judge of matters of policy. 16. For the purposes of a local police, the charter of a town may constitutionally authorize the inhabitants to tax themselves, or to do so through persons chosen by them. Gommiss Wilminqton v. Roby, 8 [red., 250. 17. 'I, i cor, who has conveyed his land to a trustee by a deed in trust to pay his debts, has not a freehold to unable him to vo a ra mber of the senate, under the 3rd section of the 1st article of the amendments to the constitution. 9 Ired. Appendix to the cases at December Term 1848, in the case of Wadd U rry. 18. In such a deed neither the trustee nor the certui que trust has a right to vote for a member ofthe senate, under the section 17 258 CONSTITUTION'.— IV. of the article ;\.l Hive referred to. Ibid. (The freehold qualifi- cation required in voters for a member of the senate has been abrogated by a legislative amendment of the constitution. See act of 1856 ch. 12 and 13.) III. 'flic Legislature has the constitutional power to consoli- date offices, by uniting the duties (if one or more offices in one person, -where the duties are not ineongruous, as for instance, the offices of clerk and clerk and master in equity. It is just, however, that the operation of such a law should be postponed, until a vacancy occurs in the office, the duties of which are proposed to be transferred. Troy v. Wooten, 10 Ired. 377. 20. The admission of dying declarations, as evidence, is not in opposition to that part i f the bill of rights which says, that "in all criminal prosecutions every man has a right to be informed of tin' accusal Ion against him, and to confront the accusers ; n 1 witnesses with oilier testimony. State v. Tilghman, 11 Ired., 513. 21. The legislature has the constitutional power to repeal an act establishing a county. It has the same power to cousolodate, as to divide counties; the exercise of the power in both cases being upon considerations of public expediency. Mills v. Wil- liams, il Ired., 558. 22. It is no violation of any clause of the bill of rights or the constitution, for the commissioners of a city or town to pass an or- dinance requiring oats, fodder, &c, to he weighed by the weigh- masler of such city or town, before being sold. Intendant and Commissioners of the City of Raleigh v. SorreU, 1 J&»es, 49. 23. The art. 1, sec. 10, clause 1, of the constitution of the Uni- ted Siales. prohibits the legislature of this State from making a grant of a tract of land to one person, when it had been sold by commissioners of the State to another person, and the State had been paid by such person, or by those under whom he claimed. Stanmire'v. Taylor,3 Jones, 207. S. P., Stanmirev. Welch, 3 Jones. 21-1. 24. The Ik-vised Code, ch. 36, sec. (!. which makes it indicta- ble for a person to pass or receive bank notes of a less denomi- nation than three dollars, applies to notes of the Bank of Fayetteville as well as to those of other banks, and is o©t incon- sistent with the constitution because it restricts the passing of the notes of that bunk, though b\ its charter no such restriction was imposed upon it. State v. fflatth vs. '■'> Jones, 451. 25. A law thaT alters (he legal rules of evidence, mi, 1 receives testimony different from, or less than what the law required at the time of the commission of an offence, in order the more easily to convict the offender, is an ex post /' law. within the meaning of the constitution of the United States, art. 1, sec. !), ch. 3, and the 24th sec of our Bill of Rights. Stale v. Bond, 4 Jones. 'J. 26. A person cannot )»• convicted under the act. Rev. Code, ch. 3-1, sec. 90, making the owner of a shop liable, (upon evidence CONSTITUTION.— IV.— CONTEMPT. 259 that aft agent or manager of his business had sold spirits to a slave) for an act done between the passage of the Revised Code and the time at which it was to go into operation. Ibid. 27. Where a person has taken a grant for the bed of a river not navigable, li is property therein cannot lie taken from him by the State, excepi in the exercise of the power of eminent domain, and then only for public use with a provision for just compensation. State v. Glenn, 7 Jones, 321, S. P. Cornelius v. Git mi, 7 Jones, 512. See (Frauds — Conveyances, agreements, &c, fraudulent as to creditors, 71.) (Insolvent debtors — Proceedings under insolvent debtors acts prior to act of 1822, 7-8-11.) (Mandamus and Quo warranto, ■>. ) CONTEMPT. 1. If the clerk of the superior court willfully refuse to make out the transcript of -the record on an appeal, the supreme court will, on an affidavil and motion, giant a rule upon him to show cause why an attachment for a contempt should not issue against him. Tegantossee v. Rogers, 2 Hawks, 567. 2. If an officer, who has been ordered to make a return of process an a particular day, refuse to obey the order, and send a contemptuous message to the court, when by their direction he is informed of it, lie may bo lined by the court for a contempt. Exparte Summers, 5 1ml., 149. 3. Where a court imposes a line or imprisonment for a con- tempt, if the court do not (as it is not bound to do) state in the order the tacts constituting the contempt, no other tribunal can revise its decision. Put if it do state tin- facts upon which it proceeds, a revising tribunal may. on a habeas corpus, discharge the party, if it appear plainly that the facts do not amount to a contempt. Ibiil. (The coiirt must now specify on the record the particulars of the offence punished as a contempt. See Re- vised Code, ch. 34, sec. 117.) 4. There can be no revision, either by appeal or certiorari, of the judgment of a court of record for imposing a punishment for a contempt of the court, stated by the record to have been committed in open court. State v. Woodfin, - r > Ired., 199. 5. Tin- power to commit or line for a contempt is essential to the existence of every court, and must necessarily be exercised in a summary manner. Ibid. 6. The punishment for a contempt, and a conviction on aa 260 CONTEMPT.— CONTRACT.— T. indictment for the same act, where a crime, are diverso intuitu, and will stand together. Ibid. 7. A justice, who grants an appeal to court from a judg- ment, which he has rendered, and takes the r security, but afterwards defaces the appeal bond and fails to return 'the papers to the proper court, although guilty of a mis- demeanor, is not guilty of a contempt under the act of 1846, ch. 66. Weaver v. Hamilton, 2 Jones 343. (Sec Revised Code, ch. 34, sec. 117.) 8. The act of 1846, Rev. Code, ch. 35, sec. 117, concerning attachments for contempt, by which the court is required to have the particulars of the offence specified on the record, do give to the party guilt;, of a contempt a right to an appeal, or to a writ of certiorari. State v. Mott, 4- Jones, 449. Where a person was appointed by the county court a com- missioner to sell a slave for the purpose of a partition, and the security taken by him, although reputed to be good at the time of the sale, turned out to be ba I before the money could be collect- ed, it was held, if under the circumstances there were any remedy for the loss, an attachment against th • commissioners under the provisions of the Revised Code, ch. 34, sec. 117, for a pontempt for not paying the money into court, under a rule for that pur- pose, was not the propei 1 one. Pritcliardv. Oldham, 8 Jones, 139. See (Costs — In civil proceedings; when the plaintiff pays ■ costs, 16.) CONTRACT. I. Construction of contracts, am! when an action will lie. II. Of the sale of personal chatties. HI. Contracts as affected i>\ the statute of frauds. IV. Void and voidable contacts. CONSTRUCTION OF 00NTI4ACTS, AM) WHEN AN ACTION WILL LIE. 1. A purchased a hill of B, drawn by C, who was B's debtor, on New York; B being about to leave town, .V asked him "how shall I get your endorsement," to which B replied "I will leave an order which will secure you," lield, that this arm i tited in a contract of indemnity from B to A. WilJcins v. Mt 2 Hay.. 333, (508.) ■_'. Oil a promise to deliver goods, a demand before suit is in- dispensably necessary. Benners v. Howard, Tay., 1!!*. (93.) 3. A person, against who; u there was a judgment, solda slave at auction for the purpose of paying it, but the purchaser not. CONTRACT.— I. 261 complying with the terms of the sale, he took the slave home until they should be complied with; and afterwards offered to deliver the slave if the price were paid ; when the purchaser re- fused to pay, and disclaimed all right to the slave. Execution was afterwards issued upon tin- judgment, and the same slave sold under it for a less price, and defendant in the excution brought suit to recover the difference of the price; it was lull, that he could not recover, because the circumstances showed that the parties had rescinded the contract. Reddick v. Trot- man, 2 Murph., 165. ■4. A promise to bringsuit in a short time, on a bond on anoth- er person, which the plaintiff had received in payment, as the price of land sold to the defendant, means a reasonable time, which is a matter of law to be decided by the court. Murray v. Smith, 1 Hawks, 41. 5. Where executors contracted to soil their testator's in! rest in certain lands, "no incumbrances guaranteed," and, after the contract, tendered a sufficient deed of conveyance to the pur- chaser, which lie refused, it was held, that the executors were entitled to recover the purchase money, without showing that the title to the land was in their testator. Dver v. Hair U, 2 Hawks. 50. (J. .V sold to B a negro hoy defective in his eyes, and it was afterwards agreed between the parties that if A, who was going to Charleston, should bring hack with him a negro hoy. he would let B have him, and take hack the defective negro. A did bring a negro hoy from Charleston and sold him to a third person; and in an action by B against .V, on this agreement, it was Jield that the delivery of the defective negro was to be an act concurrent with the delivery of the one brought from Charles- ton, and that neither party could sue upon the contract without averring and proving a tender or readiness to perform his part. Biitfain v. !ti:, 2 Hawks. ~_u2. 7. It seems that an assignable contract can only be assigned, so as to enable the assignee to sue in his own name, by writing on some part of the same paper which contains the contract. Estes v. Hairston, I Dev., 354. N. Where land was sold upon the vendee's agreeing to dis- charge sundry executions levied upon it, anil to pay the balance to the creditors of the vendor as he should direct, upon a sale by the sheriff on one of the executions, a promise by the vendee to pay the debt of a creditor if he would not hid. provided the vendor would consent, is not void as being against public policy, but is not binding without the. vendor's consent. Graham v. Reid, 2 Dev., 364. 9. Where it was agreed to abide by the decision of the supreme court upon a case stated, an averment of a breach of that agree- m ent was supported by proof, that there was a decision of the 262 CONTRACT.— I. supreme cotrrt, upon a consideration of the whole ease, although the judgment of that court was not final, bat a new trial was ordered Cowan v. Damdson, 1 Dev., 533. _ 10. Where A agreed to purchase a slave tor B, but took the title to himself and afterwards, tin- slave being in the possession of B, who tendered the purchase money to A, who declined to receive it, but did not disclose his title, it was held, that the jury might from the facts infer a subsequent sale. Eppes v. McLe- more, 3 1 >ev., .'!4.">. 11. On a contract to deliver specific articles a1 a place within a certain time, it not appearing that any act was to be done by the plaintiff to entitle him to recover for a breach of the con- tract, it is not necessary for him to prove that he was at the place during the time appointed. Cowper v, Saunders, 4 l>ev. 283. 12. Where concurrent acts are to done, as tie one party to deliver specific articles on receiving the prices, and the other to pay on receiving the articles, neither can sue the other for non- performance, without showing a performance, or readiness to perform. Ibid. 13i Where a party is to deliver specific articles on or before a given da)', if he intend to deliver before the last day mentioned. he must give a reasonable notice of his intention, to the other. Ibid. 14. The sickness., and consequent absen-ce, of a party, is no ex- cuse for the nonperformance of his contract. Alexander v. Smith, 4 Dev., 364 15. Where A transfered to B a bank note for $D0D. to secure the payment of $600, and it was agreed that, if the $600 were not paid within six months, the note should be the absolute property of B; such contract, if intended as an absolute tale, is not void for the excess, for want of consideration, but whether intended as an absolute sale or a pledge only should be left to the jury. Ibid 16. The interest of A, in saeh a contract, is net negotiable, and his assignee cannot support an action at law against B, in Ins own name, without an express promise. Ibid. 17. Where a contract binds one collaterally, and depends upon the default of another person, notice of thai defaull ought to be given, in order to charge the person secondarily liable, as in cases of guaranties and the like, Adcoclcv. Fleming, 2 Dev. and Bat., 22h. 18. When the Postmaster General vacates a contract for carry- ing the mail, and transfers the route to another person, upon condition of his paying the first contractor a stipulated sum, the first contractor acquires a vested right to such sum; and the Postmaster Geteral cannot subsequently discharge the second CONTRACT.— I. 263 from its payment. DiUiardv. Carherry,% Dev. and Bat., 280. 19. Where the controversy in a cause turns upon the meaning of the parties to a verbal agreement, in relation to a matter upon which there is room for dispute it is proper for the judge to leave il to the jury, as a question of fact, to ascertain what was the agreement of the parties in relation to such matter. May v. Stewart, 4 Dev. and Bat, 160. 20. There are some instanee8,in which upon a simple demand of money due from the defendant to the plaintiff, although the contract in form is to pay the same on demand, an a* tion may. nevertheless, be brought without the special averment of a de- mand, and sustained without proof of a demand. These were cases in which it was seen, or thought to be seen, that the money was due before any demand, and therefore the demand was not regarded as one of the terms of the contract. But a previous demand is necessary, where the engagement sought to eniJ reed is an original specific undertaking, by parties bound by no previous obligation, and owing no duty to the plaintiff, other and further than the duty which this engagement creates. Barret v. Munroe, 4 Dev. and Bat., 194. 21. Where a subscription was raised for building a house of religious worship, and. upon the letting of the- building at auc- tion, by certain commissioners appointed for the purpose, the mts, declared thai if, or work was done accord- ing to certain written specifications and accepted by the com- missioners, they would pay the sum at which the building should be hid off, and the plaintiff became the contractor, and executed the work, hut it was rejected by the commissioners upon the ground that it was not executed according to the speci- fications in four particulars, in two of which, however, it was shown that an alteration had been made with the assent of the defendants, it ivas held, that the alteration of the building, with eat of the defendants, modified the contract to tin- extent of that assent, hut left it subsisting as to the other particulars: and thai as to them the acceptance of the work by the commis- sioners was an essential term of the. defendant's engagi ment, without which the plan till could not recover; and it was held further, that the plaintiff could not recover upon the common count fir work and lailior. Young v. Jeffreys. 4 Dev. and Bat.. 216. 22. The effect of a contract is a question of law. Where a contract is wholly in writing, and the intention of the trainers is by ho-,' to be collected from the document itself, there the en- tire construction of the contract — that is. the aseertaiumt nt el the intention of the parties, as well .as of the effect of that inten- tion — is a pure question of law; and the whole office ol the jury is to pass on the alleged written agreement. Where the con- tract is by parol, the terms of the agre sment are of course a 264 CONTRACT.— I. matter of fact ; and if those terms be obscure or equivocal, or arc susceptible of explanation from extrinsic evidence, it is for the jury to find also the meaning- of the terms employed; but the effect of a parol agreement, when its terms are given and their meaning fixed, is as much a question of law as the con- struction of a written instrument. Ibid. 23. In works of art, it is a prudent and common stipulation, for the prevention of controversies, that the construction of the work shall be determined by some persons in whose judgment the parties have confidence; and the judgment of this forum cannot be disregarded or revised by a court and jury. Ibid. 24. Where a contract was made for the sale of a lot of cotton, in which it was agreed as follows: "the price to be fixed on in the following manner: the seller is to select either Fayetteville, Cheraw or Camden, and to name a time, and the prices are to be regulated by the prices at the named market and time — the price to be the same as good crops of cotton sell for at the time. The price to be fixed upon by the 1st of June next." // was held that, by a just construction of the contract, the seller was to name beforehand a market and a day by which the price was to lie regulated, and that he could not, on the last day allowed him, name a market and a preceding day for that purpose. McNeely. v. Carter, 1 Ired., 141. 25. Where, in an action for a breach of promise, it appeared in evidence that a vessel, her tackle. &c., hail been sold by the defendant to the plaintiff, on the loth December, 1835; that after the great fire in New York, which occurred on the l:>th December in that year, some of the vessel's boats and sails were missing, and were supposed to have been destroyed by fire; and subsequently it was agreed between plaintiff and defendant that the defendant should pay to the plaintiff "whatever sum it should require to put the vessel in the same repair and condition in which she uxis at the time, of the sale, over and above five hun- dred dollars." Held that upon this evidence the plaintiff could not recover on a count, in which he charged that the defendant had made false representation at the time of the sale, and that he had promised to put the vessel, &c, in the state represented; over and above the sum of five hundred dollars. Walker v. Baxter, 1 Ired., 213. 26. A party cannot recover on an implied agreement for the price of goods sold and delivered, if he could have maintained an action on a special contract relating to that price. But where the special contract is imperfect, as where the price was to be the'market value on a certain day and at a certain place, to be fixed by the seller, and he fails to select in proper time the day and place, he may yet maintain an action for the value of the goods delivered, and declare, in indebitatus assumpsit, on a quantum valebat. But regard must be had to, the special agree- CONTRACT.— I. 2G5 ment, so far, that the plaintiff cannot recover a higher pFice for his goods, than he could have done, if he had literally or duly observed the terms of the special contract. Carter v. McNeely., 1 Ired 448. 27. Where the owner of a vessel agreed to hire her to anoth- er, tor a certain period and at a certain price, and stipulated at the same time that she should be " furnished •with sufficient cables, anchors and other tackling," and the vessel was lost, before the expiration of the period, in consequence of a defect in one of her cables, it was held that the owner could not r the hire fertile whole period, under the special contract, although it appeared that the defecl in the cable (an iron one) could not have been discovered by the mosl attentive examina- tion ; the stipulation meaning that the "cables," &c, were actually sufficient, and not merely that they were apparently so. Parh r v. Gilliam, 1 [red., . r>1 .">. 2 [red., 326. ;!1 Where the agrees ent was that the plaintiff was to receive from the defendant $50 for Ins work for twelve months, "10 to be paid when the time is half out, and the balance when the year is out," and "if can't agree, part and pay according to what he is worth, nof to be considered worth as much the first as last," and at the end of 9-| months they parted* and the defendant con- tended that the plaintiff was In receive only $10 fur the first six months and $40 for the last, the court was correct in stating to i!c jury that if this were the, true cottstruction of the agree- ment, then the plaintiff was entitled to '■ecuver lor the time he served, after the first six months. Coax v. Skeen, '■'< [red., 443. 32. A sheriff, from whose custody a prisoner a mimed for debt had escaped, agreed with B that if lie would retake the prisoner and deliver him at the county town within a certain time, he- would pay him $400. B took the prisoner and had him under his care, within the time a lecified, a1 his own house, some miles from the county town, intending to deliver him to the sheriff, when the latter went to the house of 1! and seized the prisoner himself. In an action by 1' against the sheriff it was held, .first, that the contract was nof > ,: 'gi ! ; and, secondly, that the sheriff, having prevented the plaintiff from performing his contract lit- erally, while he was in the progress of doing so, was answera- ble to him for the stipulated sum. Ashcrqft v. Allen, 4 lied., 96. 33. It is not competenl !.■ i samine a witness as to the meaning of a plain Mind in a contract, for that is a question of law deter- minable by the coun. CoUius v. Benhury, 5 lied., lis. 34. Where a subscriber to the sf ickofa proposed railroad com- pany agreed to take a certain number of shares, provided however, that if a sufficient amounf were not subscribed hvindi- viduals to secure a proposed subscription from the State, within twelve months, lie should heat liberty, if he pleas id, to withdraw his subscription; and after the expiration of the twelve months he paid a part of his subscription, it was held that he was hound to pay the remainder of his subscription, unless he could show that tlie required amount had not been subscribed to entitle the company to the State's subscription, and that, in consequence thereof, he had elected within a reasonable time, after the expi- ration of the twelve months, to withdraw his subscription. And, H was held, furtlier, that his payment of a part of his subscrip- tion, after the twelve months, showed his election to continue a CONTRACT.— T. 207 memberofthe company. Wilmington and Befleigh Bailroced 6em- pany v. Bobeson, 5 [red., 391. 35. A proviso is the statement of something extrinsic of the subject matter of the contract, which shall go in discharge .of it; and in case of acoveaant, by way of defeasance. A proviso, Fore, need not be x stated in' a declaration, but the defendant, ii' he wish to avail himself of it, must aver it in his plea. Ibid 36. In construing ,a jontract, there are no technical rules to determine whether its -stipulations are dependent or independent. but every agreement ie to be judged of according to its own terms and tlie nature of the transaction to -which ii best to effectuate the intention of the parties. The order, in which lie.' provisions are found in the instrument, doi s not con- trol tli.' construction, which is to be collected from the order in point of time, in which the several acts of the differenl parties are to be performed. Dwiggins v. Shaw, (6 [red., 46. 37. The construction of a written contract is purely a matter of law, in all cases, where the meaning ami intention of the par- ties are to he collei ted fi an the instrument itself. Sizt more v. Morrou\ 6 Ired., 54. 38. Where A sold a tract of land to B, made him a convey- ance and took his bond for the purchase money, and afterwards i; re-conveyed to A. who entered into bond that lie would con- vey to B, whenever the purchase money should he paid; and it, was further stipulated that ifthe purchase money were not paid, P. should pay a certain rent, ii was held, that this latter contract rescinded the first, and. that the bend gkien under the first con- tract ■■> as discharge, i at law. Ibid. 39. Where it appears from a contract, that it was made by commissioners on behalf of the public, -whether they were com- mission',.- f.r a county or for the State, they are not personally bound by their contract. Dameron v. Trvnn, 8 Ired., 421. 4n. Where there is a contract for the delivery of a certain quantity of tobacco, deliverable at a certain place and for a cer- tain price, the purchaser must, in order to entitle himself to re- cover for a breach of the contract, allege and prove that he was ready to perform his- part of the contract. Cole v. Hester, 9 Ired., 23. 41. Where A contracted to deliver to B one hundred fish stands, of a certain description, and upon tendering them B re- eebri 9 fifty, but refused to receive the other fifty, because they were 'ii a made according to the contract; it wans held, that thjs receipt of the fifty stands did not make B responsible for the other fifty, which were not made according to the contract. Freeman v. Skinner, !• Ired., ;'>•_!. 42. Tin' clerk of a district court of the United States furnished certain transcripts of reeords to a 'collector of customs, wdio .ap- plied for them officially, and as he stated, by the direction of one 268 CONTRACT— t of the auditors of the United States Treasury; and it ivces held, that the clerk could not hold the collector personally responsible for his fees, but must look to the United States Government for what was due him. Broimi v. Uatton, 9 Ired., 319. 43. The construction of a written instrument is a matter for the court and not for the jury. Ibid. 44. Wheie one man contracted to work for another for six months :it eigbJ dollars per month, and the hirer at the expira- tion of four months refused to pay the hire for those months, alleging that he was not bound to pay until the expiration of si x months, upon which the laborer refused to work any longer, it ', that he was entitled to recover for his four months work- Dover v. Plemmons, 10 [red, 23. 45. In an action for work and labor done on the land of an- otl <■ . it is not necessary that the labor done should have been beneficial to the owner of the land. Ibid. 46. The constrm i contract is matter of law. When the terms are committed to writing and are explicit, they pre- sent a question for the court, but if doubtful and uncertain they m;'\ be submitted to a jury with proper instructions. If the contract be vi rbal, and the parties dispute about the terms, that is a matter of fact for the jury; but if there be no dispute about the terms, and they be precise and explicit, it is for the court to declare their effect. Fexper-mnn v. Parker, 10 Ired., 471. 47. Where A contracted to deliver B a certain quantity of corn, if called for by a particular day. and B did not call for it until some time afterwai Is, ','■ icas held that B was not entitled bo recover on the contract, Broitm v. Hay, 11 Ired., 222. 48. If A agree with 1! to furnish him with a flat beat of a certain description, by a time and for a price certain, A has a right to employ another to do the job for him, and if the boat be ft rnished according to contract B is bound to pay for it, how- ever much A may make by the operation. Meadows v. Smith, Busk. 327. 49. Where the terms of a parol agreement are ascertained, its construction, like the construction of a written contract, is mat- ter of law for the court. Rkodes v. Chesson, Bush, 336. . r )U. A slave was hired for a year to A, upon an agreement that he was not to be carried out of the county, but A did order him out of the county, and while on his way, he was directed by his owner not to go out of the county, unless he was compelled by force; and it uyts held that the stipulation, not to take the slave out of the county, was not a condition precedent, but an inde- pendent agreement and the owner had no right to interfere and stop the slave from being carried out of the county. Sample V. Bell Bush, 338. 51. Where. A agreed to build for B a good sawmill, B under- taking to cut the mill race, and the mill was worthless in conse- CONTRACT.— I 269 quenee of a defect in the rare below, and whore it appeared further that A had undertaken to ascertain the level, and desig- nate the position of the race, and had done it so unskillfully as to produce the defect in question, it, was held that A hada reason- able time to have the error corrected, and he hada right to have such correction made, provided he could show that, as proposed by him, ir would remedy the defect. Byerhy v. Ji, | Jones, 35. :<■!. Where parties enter into an express and spi cific eoi which is neither general nor doubtful, I resorted to in ascertaining its meaning. Cooper v. Pu I Jones, 141. 53. Where the. terms of a contract of hiring were that the slave was not to be taken out i mty, nor to be employed upon water except a1 the h 'er's risk, and the slave was put to making shingles out of the county, and died during tin- rear from ordinary sickness, withoul any neglecl if was Itdd ' was nevertheless liable for the value of the slave, Bell v. BoiCi . 1 JoD -. 311). 54. A contract on hiring a slave from another, "to guara ity against loss, accident or misfortune, rom a habil of in- toxication in the slave," embra e : theca? ■ i f suicide, bv ing in a fit of intoxication. Ch'eet \ Dibble, 1 Jones, < 55. Where the contract between the plaintiff and was that the former was to come within a few days with and surety for the hire of a slave for the next yi ar, and h> post- rt of the underta ae in the la si week in J to the LOth Jau was held thai the defendant was not bound to keep :i, him any longer, and il sva no fault to hire- him then to another person, Warters v. Herring, 2 Jones, 4ii. 56. A contract "to pay for hree slav s ten dollars per ru mtli, until we finish our contracts on the railroad," is an entire con- i a performan e > a pari of it, the oti ner of ih ■ slave tal us them away withoul I ; nt of the hirers, he cann lie til ives worked with ' : ■■',. 2 Joni 8, .'•7. Y\ here one contracts to-sell and deliver a certain qui of pork, and after delivering a part refuse to d ih r I i re- mainder, o1 reco br the part delivered. Dulav Coivles, 2 Jones, 454. 58. A > i in a contra I hire of ; ! slave, that he "was not to be employed on water," is not broken by sending the Blave to water horses at a shallow part of a deep stream, With instructions aot to ride into deep water, though he did ride tnto deep water, and was thereby drowned. Madre v. 3 Jones, 1. 270 CONTRACT.— I. 5Sb Wkere A agreed to pay a mechanic $100 of the deficiency in a public fund lor building a school house, provided eighfeothgr responsible persons sigwed the agreement, and eight other per- sons did sign the agreement and paid their shares, it was held, that after tin' trustees at the school had received the house for which they had contracted, A could not he heard to objeet that the work was not done according to the contract, hut was .bound under his agreement to pay the sum he had promised. Pipkin v. Robinson, 3 Jones, 152. GO. Where the terms of a contract are that A shall cut a mill, race of certain dimensions, within a certain time, tor which., he is to receive a certain sum, lie cannot recover any thine- either on tlie special contract, or upon a quantum meruit, unless he aver and prove an entire performance. Brewer v. Tysor, 3 Jbnesj. 180. 61. Where i'. agreed "to receive" the draft of a merchant who had bought A's tobacco, and to credit a bond which he. B, had on A. when I he money she-uld be received, but, without any fault on B's part, the merchant declined to give the draft, and two months afterwards became insolvent; it was held, that the con- tract did not make it the duty of & "to procure tin- draft and credit the hood," and that, therefore, he was not responsible for not having done so. Watkins v. .lames, :\ Jones, lib"). 62, Where v agreed with 15 that if B would furnish hk-ri with evidence, in a suit then pending, to prove a particular iact, he would pay him $100, and B furnished him with a deposition which proved (lie desired fact, but the commission under which it was taken was not returned with it, so that it could not bo used; H was held, that 15 had not performed his part of the con- tract, so as ro entitle him to recover on it. Williams v. Thompson, ."> Jones, 363. Ii;5. Where one agreed to pay a debt when an estate bid been settled up, it was held that the person, to whom the debt was to be paid, had a right to recover at lie end of two yi irs from the time when administration was tafeeja on the estate, unless the debtor can show that it was not then settled up. Ingram v. Ingram, 4 Jones, 188 64. Where the vendor ;f timber tr.'-rs, living twenty-two miles from the proposed Vendee, offered in writing t® sell him the trees, provided he would comply with certain terms, and he did not comply, nor offer to comply with the term;-., until the expiration of twenty days, it was held that as the vendor was hound by his offer in writing, and the vendee not bound, twenty days was an unreasonable delay, and the plaintiff, therefore. could not sue upon the contract upon the defendant's refusal to comply with it. MizeU v. Burnett. 4 Jones, 219. 65. Where a right, under a contract depends npon the per- formance of a condition pi-eceder/t, the party cannot recover un- CONTCACT.— I. 271 loss tin' conditio* be performed, evert though the perftyflmanoe has become impossible by the act of God. Ibid. 66. Where there is an entire executory contract, eS»I the plaintiff has performed a part of it. and, without legal excuse, and against the consent of the defendant, has refused to perform the remaining part, he cannot recover anything for toe part performed. NihUtt v. Herring, 4 Jones, 262. ote— See (Constitution — Acts which have been declared con- stitutional, 4.) (Constitution — Acts which have been declared unconstitutional, 2-3-7-9-1 1.) (Constitution — Construction of vane is clauses of the constitution, 23-27.) (Fishery, 280 logs of timber, to he staked in the river at or near Plymouth, at a plao to be designated by C, and delivered 130 logs and staked them at the ignated. He then gave notice that lie would have 2f6 there on the 7th duly, if the weather were favor- able; an. 1 en that day the logs I to Plymouth and i e with th- I et no notice was given te B or his I the logs were tin re. Five davs afterwards the- logs were lost in a violent sti rm. and it was lull sufficient delivery to entitle A to recover the price i if the timber. Williams v. J L, 233.. 13. An inspector of lumber in the town of Wilmington is, by ' . trade in that town. and fi ttasi f Her to was placed with an :-r it on a particular wharf, and b; b< ! it on another wharf, and the purchaser infor Her he Li there, an I it ".ms aft cidently de- stroyed by fire, it was held tint it was n< I Bold and deli that, con ,1 I to pay for it 276 CONTRACT.— II. so that the loss fell on the seller. Bide v. Browne, 6 Ired., 401. 14. The plaintiff' sold the defendant some cattle for $50, and received therefor the defendant's note for $30, payable the 1st day nf January ensuing,', and a bank bill for $20, which was to be returned, if found. not to be good, and the defendant was to have credit until the 1st of January. The bank note was re- turned, as also the note for $30, which was destroyed by the de- fendant, who then offered to pay $10 and give his note with senility fur $40, payable 1st of January next, but the plaintiff refused to accept them; and it was held, that the plaintiff could not sue the defendant in a quantum valebat until after the 1st of January. Gvdger v. Fletcher, 7 Ired., 372. 15. A purchased a mare Ifrom P> and gave his note for the price, and at the bottom of the note was the following stipula- tion: "It is agreed and understood that a sorrel mare, for which the above note is given, is to remain the property of B until the above note is fully paid;" A, without having paid the note n sold the mare to I '. and it was hdd that A had no right to sell, and that his vendee acquired no title. BaUew v. Sudderth, 10 Ired., 17(1. 16. The doctrine of appropriation, as constituting a delivery and thereby passing the title to the purchaser, arises in cases of the sale of goods generally, as distinguished from the sale of a specific chattel; and when a less quantity, out of a larger, isthe subject ot tin- contract, then no property passes to the purchaser until a delivery, for until then the goods sold are not ascertain- ed. Brazier v. Ansley, 11 Ired.. \'S. 17. The seller may appropriate the quantity purchased, by separating it from the bulk; but tin- appropriation is not com- plete until the vendee assents to take the separated portion. [bid. IS. Personal property passes by a sale and delivery, notwith- standing an executory agreement to sell to another, and the receipt of a part of the price. Wilson v. Pur cell, 11 Ired.,. 502. 111. Where a person had in store 3,100 bushels of corn, an d sold 2,800 bushels of it to A: but the 2,800 bushels were never separated from the 3,100 bnshi Is. and the whole was afterwards destroyed by fire; it was held that the property in the 2,800 bushels liad not passed to A, because there had been no deliv- ery, and therefore A was not bound to pay the stipulated price; and thus result follows, wliafev-er may have been the intention of the parties, as to the property passing presently, on the con- tract being made. Waldo v. Belcher, 11 lied., 609. 'JO. In an action on an express contract for the price of rope sold and delivered, where no price was agreed upon, the defend- ant can only show what was the market price generally, of rope of this kind at the time of sale, but cannot show what was the ccwmiACT.— n. 277 real or actual" value of the article sold, so as to reduce the amount which the plaintiff would be entitled to recover, below the market price at the time. Dickson v. Jordan, 12 Ired. 79. 21. A and B entered into the following agreement in writing: "Sold to B one gray filly for 115 bushels of corn, which the said filly stands good to the said A, as his own right and pro- perty until she is paid for," which was signed and sealed by A; and it loasheld that the legal title to the mare still remained in A, and that the sale was only conditional. Part is v. Roberts, 12 Ired., 268. 22. When property bargained for is delivered, an action for the price agreed upon cannot be defeated, except in cases where, if the money had been paid, it might be recovered back in an action for money had and received. There must he a total failure of consideration; as, when the property is retained by mutual consent, or is never delivered, or a counterfeit bill is re- ceive'!, an action forthe price agreed to be paid may be defei ted : but otherwise if the property be delivered, although it turns out to be unsound and of no value; or if the- lull is genuine, though upon an insolvent bank. McEntyre v. McEntyre, 12 Ired., 299. 23. A bought of B, a distiller, three humsfoed barrels of rosin,. to be delivered "when called tor within the' week next after the purchase," and paid for the same. Within the week B manu- factured, and had on hand, at his distillery, more than the above quantity of rosin, but A did not call for it within that time, and afterwards it was together with the distillery, consumed by tire; it was Jield,J?rst, that A was bound to call for the rosin within the time agreed upon; secondly that B was not bound to set apart for A any particular three hundred barrels, aa -I. thirdly, that A having failed to perform his part of tfee* contract, the ro- sin remained at his risk and he mttsl bear the loss; and, there- fore, he could not reeover, either the value upon the contract, or the price on account for money had and received. WiUard v. Perkins, Busb. 253. 24. Where A, purchased a horse to be returned at the end of two days, if he did not answer the description given of him, and the two days elapsed without the horse being returned; it \pas held, that the contract was absolute, and that A could not discharge himself from the liability to pay the price, by showing that the horse was not as good as had* been represented. Moore v. Piercy, 1 Jones, 131. 25. A contract to sell all the eor.i in a certain mill house at two dollars and a half per barrel, and a payment of a part of the money, vest the property in the buyer, so that he can sus- tain an action of trover for it. though aot measured out to him. Morgan v. Perkins, 1 Jones, 171. 26.. A agreed to sell and deliver to B a quantity of corn at 278 CONTRACT.— II. • his farm in another county, upon B's sending for it, but nothing was said as to the time and manner of payment B sent a vessel for the corn, hut sent no money, and did not give to his agent who went for it any instruction as to the payment, nor did he in any way communicate with A upon that subject. A denied the contract and refused to deliver the corn; and if was heltl, that A's denial of the contract did not release B, from the necessity of showing that he had the money ready to pay for the corn, though lie wa^ released from the necessity of showing an actual tender of it. Grandy v. McCleese, 2 Jones, 142. 27. Where it was agreed between A and B, that B was to sell and deliver to A a quantity of corn at a given place and price, "whenever called for," it was held, that no action would lie for the non-delivery of the corn, if it appeared that no offer had been made to pay tin- price, ami that, when it was sent for, the agent to receive it had i loney with which to pay for it, and it teas held further, that B's denying A"s right, upon an un- tenable ground, did noi Believe him from the necessity of show- ing his ability and readiness to perform his part of the contract. Grandy v. Small, 3 Jones, 8. 28. Where upon a contract for the purchase of corn, the pur- chaser in due time demanded the .article, saying, "I have the money here with me to pay for it," and is able to prove that he had some money, but none was produced, and nothing further was said about the money, as the -vendor refused to deliver the corn, saying that he had mad'' another disposition of it; it was held that there was some evideuoe to be left to the jury of the purchaser's ability and readiness to pay, and that, under the circumstances, he was not hound to tender the money. Burbank v. Wood, 3 Jones, 30. 29. Where A contracted to soil and deliver to B a certain number of bags, capable of holding two bushels each, at a cer- tain price, and did deliver to B's agent the hags, though noi ol the proper size, and they were rilled with peas and sewed up? but sxor eight days aiti rwards, B seeing the bags for the first time and finding that .'thej were too small, had them emptied and sent back to A, who refused toreceive them; it was held that A could not recover for the bags, either on the express agree- ment or on the common count; for that the use which a vendee makes of an article sold to him, to entitle the vendor to recover on the common count, must be a substantia] and beneficial and not a mere temporary use. Waldo v. Halsey, 3 Jones, 107. 3Q. Where A agreed to deliver, on a certain day. a horse which he had sold to B, but before the day sold it to another, and therefore did ma deliver it at the time appointed, it was held that B was entitled to maintain an action against A for the breach of the contract, without averring or proving his readi- ness and ability to pay the money, the wrongful act of A, in CONTRACT— II. 279 selling the horse to another person, having excused him from making such averment and proof. Harris v. Williams, 3 Jones, 483. 31. Where a party made a bill of sale for personal chattels in the ordinary form, and there, was a parol agreement at the same time that the articles should be delivered on a certain day, which : done, yet it w is h ' I that the title to the chattels passed from the delivery of the bill of sale. I Jones, 168. 32. Where, in payment for persona] la bond without recourse, bhep ■ isenthaving cut off the name of the surety, . d that whether the < it- ting off the surety's name made the bond void or not, the ' of it to tin- vendor was a valid consideration for the purchase. Ibid. 33. Where a cabinet maker agreed with a j -make an article of furniture and deliver i1 a debt, and, ait r the article was '-part- nership wit a a iotl r, ■!■'• ', two finis! : livered it, it was I Id thai the firm had no right to make a ge and i price of the article, hut tint it v. abjeel to the terms of the original special contract. White v. Pool, 4 Jones, 293. 34 "\\ bere one contra' I and deliver an article at a and place, to I paid for on delivery, and before and at the specified time the vendor refused to deliver the article, if, was held that the n izsal I pensed with a tender of the price bj the vendee, yet in an action by him for the breach of the contract he was bound to aver and prove readiness and al ility to pay, at the time 8nd L Grandy v. Small, 5 Jones, 50. 35. Where the purchaser of an article is bound by the con- tract to name a time for the ! (en notice and r i so, disavowing the contract in toto, the seller on showing that he has the article at home ■ iin an action for a breach of the contract. ! ,5 . 5(5. of!. Where one contracted for a lot of corn to be delivered cm ■in day. and in p; r delivered, without en- dorsement, a note on a third person then in good credit, but who was in truth insolvent, and " I - notoriously so before >. fixed for the delivery of the corn ; it \ that the loss fell on the person who tool tl te,inthi abs< •. prooi that the seller knew of the the n r. Long v. Spr- iff, 7 J i€s, 96. 37. W!a re the plaintiff bought and paid far a lot of corn, to be di livered cm a certain day, bu1 failed to apply for it at that time, and the vendor afterwards resold it ; it was held, that the plaintiff might recover, upon a count for money had and re- ceived, tli" price received by the defendant on such resale, although the corn Lad remained in bulk vrith other corn, and 280 CONTKACT.-JT.-III. was not set apart, nor identified as the property of the plaintiff. Ibid. See (Evidence — Parol evidence, when admissible, 45.) (Guar- anty, b'-9.) (Interest, 1-10.) (Joints Tenants, 5.) (Trespass — Of trespass quare clausum fregit, 20.) (Trover — When it will lie, 5.) III. CONTRACTS, AS AFFECTED BY THE STATUTE OF FRAUDS. 1. Executed contracts are not within the act of 1819, relating to contracts for the sale of land and slaves. Choat '<■ Wrigld, 2 Dev. 289. (See Rev. Code, ch. 50, see. 11.) 2. A sale of a slave accompanied by a delivery is valid and transfers the title, although no bill is executed, nor any memor- andum of the contract signed by the parties tin reto. Ibid. 3. A contract for the sale of a slave, accompanied with posses- sion by the vendee arid an agreement to pay accepted by the vendor as money, is an executed contract, and therefore valid, nothwithstanding the statute of frauds. I'pps v. McLemore, 3 Dev., 345, 1. A promise by A to pay the debt of a third person, on -lis being discharged from custody^ is not within the aid of L826 there being a new and original consideration moving between the parties. Cowper v. Glvambers,4 Dev., 261. 5. The aol of 1819, to make void parol contracts for the sale of land and slaves, does not require that the consideration for the contract should be set forth in the written memorandum of it. Dliller x. Irvine, 1 Dev. and Bat., 103 6. A guaranty of a note, upon an assignment of it, is not an engagement to pay the debt of another, within the statute of frauds. Adcock v. Fleming, 2 Dev. and Bat. 225. 7. A. being indebted to B, agreed by parol to sell to the latter his equiti ble interest in a tract of land, which 1! was x<< resellj and, after retaining the amount due to him, was to pay to .V the surplus of price he might receive beyond such debt, lb accord- ingly conveyed, and B resold at an advance, and then refused to account witti A fir such advance, it ten* held that this vontract of B was not one which came within the provisions of the act, making void parol contracts for the sale of lands. Massey v. Holland, 3 [red., 197. 8. A contract in the following terms: "1 passover the following notes to S. A. for value received, and I agree to make them good, should any of them not be so," is not within the statute of frauds. It is a debt of the defendant himself, arising upon a new and original consideration of loss to tin- plaintiff, and benefit to the defendant, by means of the contract between these parties. Ash/onl v. Robinson, 8 Ired., 114. (See Re-ss. Code,.ch. 50, sec. 15.) 9. A sale of land by a trustee, under. ft deed, of trust, made. CONTRACT.— III. 281 for the purpose of satisfying debts secured i\v the deed, is within the act "to make void parol contracts for the- sale of land and slaves." Ingram v. Dovodh, 8 Ired., 455. iSee Revised Code, ch. 50. sec 11.) 10. Where A has a cause of action against a person, and B makes a parol promise to indemnify A, which promise is su- peraddi d to the claim, which A has on his original cause of action, the statute, making void parol promises to indemnify against the default. &c, of another, will apply. But if there be no debt for which another is, or is about to be responsible, or if the debl < ; the other is discharged and the promise is substituted, the statute does not apply. Drauglum v. Bunting, 9 [red , 10. 11. Where one had a claim against three distributees, on ac- count of assets received from an intestate's estate, and they jointly promised verbally that they would pay the debt, it >ras held, that this promise was void under the statute, because each of the defendants was liable separately in proportion to the assests in' had received, and by this promise ea«h made himself responsible tor the liability of the others. HiUv. Doughty, 11 Ired.. 195. 12. A. s. .Id a tract of land to B, and gave him a bond tor the title, ami 1'.. as the price of tie' land, promised verbally to pay §1()() tu ('. to whom A was indebted; ami it was held, that the case did not fall mnler the 10th section of the statute of frauds, Rev. Stat., ch. 50, sec. 10, relating to promises to pay the debts of other persons, because the promise was to pay the debt oi the very person, to whom the promise was made. But it came within that provisi m of the 9tb section of the statute, which provides that all contracts to sell or convey lands, &C, shall be void, unless such contract, or some memorandum or note thereof be put in writing and signed by the party to lie charged there- with, &c; ami the', under this section, th< verbal promise was void. Rice v. Carter, 11 Ired., 298. (See Rev. Code, ch. 50, sec. 11 and 15.) 13. A contracted to purchase from B a tract of land at a stipulated price, and gave his written obligation to that effect. Afterwards, C agreed by parol to purchase A's interest in the contract, and A by endorsement on his obligation directed B to convey to ('; ;t washeld, that thecontracl between A ami C was void by the statute of frauds, and of course no action could be sustained on it. Simms v. KiUian, 12 ired.. 252. 14. A parol agreement? by one to execute, at another time, a covenant to convey to a certain person title to a tract of land, is void under the statute of frauds. Ledford v. FerreU, \i Ired. 285. 15. Where, iu consideration of a promise to pay the debt of another, the defendant receives property and realizes the pro- ceeds thereof, the promise is not within the mischief provided against by the statute of frauds, and the plaintiff may recover 282 CONTRACT.— TIL on the promise, or in an action 'for money had and received. But, it is otherwise where the new promise is merely superadded to the original one, not substituted for it. Stariy v. Hendricks, 13 Ircd., 86. 16. Parol agreements for any lease for more than three years, and those for mining for any term, though loss than three years, are void by the statute; and a contract, to transfer such a term, must in like manner be in writing, or it Avill be void. Ihihs v. Pace, 13 Ired. 279. (See Rev. Code, ch. 50, see. 11.) 17. A parol promise by an administrator that be would see a debt of the testator paid, or that lie jvould pay it, is void under this statute of frauds. Smithwich v. Shepherd, 4 Joi 18. ! Inder the statute of frauds a contract to sell lands, or any interest in lands, signed by the vendor, is binding upon him, though the vendee may not have signed the contract, and it ■ ' inst him. Mizell v. Burnett, 4 Jones, -2VJ. (See Rev. Code, ch. 50, sec. 11.) lit. The contract, under the statute, Deed not harve been ori- ginally made in writing, provided eviden a of it is afterwards put in writing and signed by tin- person to Lie charged there- with. Ibid. 20. A contract to make good certain notes on another person, paid by the purchaser to the seller of property, provided the maker of the notes was noi able to pay them at a certain future day. is not within the statute of frauds. Rev. Code, eh. 50, sec. 15. Boiuland v. RorJce, 4 Jones, 337. 21. A promise to pa] tin debf pi another, superadded to the original debt which still remains in force, is within the statute of frauds, and will not sustain an aetion. Britton v. ThrailkiU, 5 Jones, 329. 22. Where a father promised the creditor of his son, that if he would go to a distant pi; ce ' :o oe the bail of his son, who was in prison ivpi n a srhninal charge, so as to release him from imprisonment, he would pay the of a corporation aggregate is not to be considered co-extensive with the limits of the Sti te. — Yadkin Nat mpany v. Benton, l Hawks, 422. 3. Where a charter authorizes, but does not require, a company to strike oft' the names of delinquent subscribers, and to sell their shares, the remedy is only cumulative, and the company may still sue for the instalment due. Tar River Navigation Company v Neal, 3 Hawks, 520. 4. Where a charter is granted to a company, persons, who are in the actual possession and enjoyment of the corporate rights granted, shall be taken to lie rightfully so as against wrong- doers, and all others who have treated or acted with them in their corporate capacity; and such will be the case, even if the charter were granted upon a precedent condition; and the con- dition shall be considered as performed as against all persons ex- cept the sovereign. Ibid, 5. Where, by the charter, commissioners are appointed to ascertain the performance of a condition precedent, and they 286 CORPORATIONS.— I declare it to have been performed, it must be taken to be trae, whether so or not, as to all except the sovereign; and even, in the case of the sovereign, the acts of the corporators can only be examined in a proceeding directly againsl the corporation, to enquire into the validity of the charter. Ibid. 6. Corporations, by prescription Qt by letters patent, could, ac- cording to the old books, act only by deed. En modern times, however 1 , it has been held that, although they can grant only by deed, yet they may do many other acts without one, as appoint a bailiff or the like. But corporations, created by legislative charter, which allows or requires the ordinary business to be done, not by the corporators as an- entire body, but by a selecl board as I agents of the corporation; are not governed by the old ruL oi mi on lawm their mode of action, but are L and regulated by the statute creating them. Bm Tvn , i ■ ; I : ' Bat.. 306. 7. fhi ' ition are no required, by any rule of the common law, to act by deed in behalf of their principals. where they might act for themselves by parol. Ibid. 8. When i is plaintiff, it must on the gi I i a corporation, and when the charter is ;> itute, that is done by showing the statute and tin persons indetf color of it are in possession of coi . ! ses. Ibid. 9. The nonexistence of a corporation, acting as such, or the forfeiture of its charter, can only be adjui of the soverei^ l. Such non-existence or forfeiture cannot, whei is no judii J i mtei nst it, declaring it null, be collates: ally inquired into by individuals. Ibid. 10. Debts due t< i corporation must be sued for in the cor- I : name, and cannot I" recovered in the names of A. 1>., td C. !>. and K. I\. direc 'ttain v. Newland, 2 Dev. and Bat, 363. 11. A railroad ation is not i of its road. Stat \ . Rivt s, 5 [red - ., 297. 11. Only tl ate, which remains in a cor] tb tion, reve » il proprietors-; and what ha ted out of tin c , by its own ai b or tl the law, does not so revert. 13. When i I i shown that a ch tn a cor] ■ session and actual mg the i mst be consid red as righ against all wrong-doers, and all who havi bi : • 1 with them in their corporate character. E \ ■ ty Academy v. Lindsey, 6 Ired., 47(i. 14. The sovereign alone has a right to complain; for, if there be an usurpation, it is upon the rights of the sovereign, and bis acquiescence is evidence that all things have been rightfully COEPDEATIONS.— I 287 performed. Therefore, where a corporation of the mister?,- of an academy, < onsisting oi" ten, was shov n to have existed, and corporate acta had continually been dene in the name of the corporation, although it was shown by f : ede i'> aidant, in an action : him by the corporation, that but on riginal • lined alive, it wot I he corporation > I i I toshoware s down to the time the suit. Ilia 15. The pu • all corporations is the , The substantial difference '> kween mi thi are en ted b; tlii m <•& u of th ie islature, there ing no pa ■ : | at all times to he modifi i jed or annulled. Other corpor- atio: arei alt of contract; the legislature, for the piu-] accomplishing a ] es to do it by the instrumen- tality of i I party. ies make a co\ ■ ■ : '■■ r and mtlayof he party of the second part the privili oj poration, "with certain powers and ca] hanged or an out the ties. Counties, &c, belong to the first class; railroad and turnpike companies are instances of the i . 558. lb'. Cor] nS, though not mentioned in tire Constitution of the United* States, are within its provisions, a ■ cewithin the provisioi my oi ter general law. Th ■ v. Tlie Bank of C ■)>■ F, ar, 13 [red., 75. 17. A warrant and jud dust " J. F. J., President " of a corporation, andanexi igthereto, is a pi ing againsl J. - . J. indi iridually, a ad the property of the corpor- ation, of which liewas] be taken and sold undei In i . n,//. v.. . 5 - 18. Mir. Mho seeks to avoid the p i ibsoription, upon i he ground that one oi the termini was materially i hanged from that designated in the •ion was made without his concurrence or consent, Nor • Railroad Company v h acJi, i Jones, 340. 19. Whel : I ed to the el ; ' , Qst the pay Ld the power to prevent i 20. A corporation, whichisa ithorized to be constituted under a charter granted by the legi not take a bond payable to ir. until it has bi i n properly organized so as to have a cor- porate .,/ Com- pany v. Wright, 5 .Tune-. 288 CORPORATIONS.— I. 21. Where an act of assembly, incorporating a company in which the State was not interested, directed that a certain per feentage should be paid at the time of making subscriptions to its stock, but the company organized and admitted a. subscriber to participate in its meetings, and in the regulation of its affairs, without paying such per centage, it was held that he could not afterwards disavow his membership, and refuse to pay his sub- scription. Haywood and Pittsborough Plank Jioad Company v. Bryan, 6 Jones, 82. 22. Where a party had been permitted to subscribe, to the stock of an incorporated plank road company, a certain amount, payable in materials, which would be needed in its operations, on his refusing to pay in such materials, it wan held that his subscription became demandable in moneyand an action of debt would lie for its recovery. Ibid. 2.">. Where an act of assembly authorized a corporation to take stock in a public company, to a certain amount, and the only means provided for raising the money was by issuing bonds, and the amount of bonds to be issued was restricted to the amount of stock to be taken, it was held that these bonds could not be sold for a price less than par. Neuse River Navigation Company?. Commissioners of Newbern, 7 denes, 275. 24. A corporation cannol lake any thing in payment of stock subscribed, except money, unless by express provision of its char- ter. Ibid. 25. Where the authorities of an incorporated town were au- thorized by act of Assembly to subscribe for stock in a naviga- tion company, and to pay for the same bythe sale of their bonds to be issued on certain terms, and such subscription was made, and afterwards the navigation company obtained a mandamus to compel the payment of the money; it was held, to he a suffi- cient return for the defendants to allege that they had prepared and executed the bonds, had offered them for sale by public advertisement, and had otherwise diligently endeavored to effect a sale of them, on tin.' terms prescribed by the act of As- sembly, and that they had not been able to sell them. Ibid. 2(1. In an action against a subscriber to the stock of a railroad company, on a bond for the payment of an instalment of such stock", it was held, that the existence of a president and engineer, acting and purporting to act for and on behalf of the corpora- tion, and a charter authorizing the appointment of such officers, were sufficient to establish its organization as against the defen- dant and all others dealing ami treating with them in their cor- porate capacity. Wilmington, Charlotte and Rutherford Railroad Company v. Thompson, 7 -Tones. .">.S7. See (Action on the case. When case will or will not lie, 13.) (Evidence — Parol evidence, when admissible 40^4.) (Evi- dence — Books of original entries, accounts, receipts, &c, 11.) CORPORATIONS— I.-II. 289 (Execution — Levy, sale and application of the money raised, 59.) 'Execution — "What may be levied on and sold under execution, 28-29-30.) (Jurisdiction — Of the County and Superior Courts, 40.) (Agent and Principal — Liability of the principal for the acts of his agent, or by notice to him, 15.) II. OF PARTICULAR CORPORATIONS. 1. When an incorporated bridge company entered into certain articles, one of which was that the stockholders should liave -ion to pass toll 6 ■; as they owned stock, it was kdd, that the wagon of a sto should not be el with toll. , :- \rm>n v. Mall It, 2 tfurph., 872. 2. The state bank of North Carolina (whose charter has ex- pired) was held to be a private corporation. State Ban:: v. Clarlc, 1 Hawks, 36. 3. The act of incorporation of the Yadkin navigation com- pany makes the s* sum. and not the pay- ment tff it, essential to the 'm> po i of the subscribers. Hawks, 10. ikof Newbern, in the name of the ] stock bin the • of '1814, ex- tending charter of .... taxation • r . 5. -' ispoi t ion of the mail and of re, within the meaning of the act incorporating I ke & opany, and is sub- . . ■ Buncombe Turn- i ■ . . . Dev. 463. 6. rhat clause of 1 ombe turnpike company charter, which compels all persons \r\ ing within two miles of the road aid company, andwh . liable to work on public . to perform six di said road in each and every unconstitutional, inasmuch as they are by the • passing over the .1 Dev. and Bat., 306. 7. The board of dired i >mbe turnpike company may, under its char per or overseer of the i of the roa I bhe corporate and this a] | I may be shown by the production of the boi containing an entry of a resolution to that effect. Ibid. 8. The 11th section of i trter of the Wilmington and Raleigh railroad company, n [rich Leclares " that ifanystockholder shall fail to pay the sum required of him, on his subscription, by the president and directors, within one month after the same shall have been advertised in some newspaper published at the 19 290 CORPORATIONS.— II. seat of government, it shall be lawful for the said president and directors, without further notice, to move for judgment in the county or superior court of Wake or New Hanover, against tha delinquent stockholder or his assignee, for the amount of tha instalment required to be paid, at any court held within one year after the notice, and the court shall give judgment accord- ingly, or they may sue for the same in an action of assumpsit or by warrant, according to the jurisdiction of th tribunals of the State," does not authorize a judgment against a defaulting stockholder, without his appearance or without pro- cess to call him into court. Wilmington and Raleigh Railroad Company v. Baker, 3 Dev. and Bat., 79. 9. Upon the confirmation, by the county court, of the report of the commissioners appointed by said court to assess the dam- ages sustained by the owner of land, for its condemnation to the use of the Raleigh and Gaston railroad company, no appeal is given to the company by its charter of incorporation, i le case come within the provisions of the general law in rela- tion to appeals from the county to the superior court, ftalt igh and Gaston Railroad Company v. Jones, 1 Ired., 24. 10. Where the act incorporating the Pi ianoke railroad company declared, that after the rnent of damages for the land, to be used for the construction ol the road, the company maj enter upon the said land. &o, -and hold the said land to their own use and benefit, for the purpose .if preserving and iid railroad during the continuance of their corpora^ (sixty years,) and in all things to have the same power and autl I land so i during their existence as a eorpor ■ the laws of thisi State, as though they owned the fee simple therein;" it w that, by this clause, the tit and payment of dam.; I lant of the land, as the owner of the li tte for the t by years, subject to the earlier determination of the < : from any cause. ■'■■■ '. v. Rives, 5 Ired., 207. 11. The provision- of the ch: iid company '-shall hold the said land for the purpose of piv id keeping up the road," does not mal Li m, upon the performance of which its estate depends, but th i v only assign the reason, why the law vests the estate in the corporation. From the nature of things, as for in , i lute n cessity : of giving such a corporation a right to theaction of trespass guars ciaus! mfregit or ejectment, toprotei t its i njoyi ten! orthe road, it follows that an estate must be vested in the corporation, unless it be clear that the contrary was intended. H-iO. 12. Under the charter of the Buncombe turnpike company, tolls are only demandab^e at the gates erected on the road; and. therefore, a person who passes on the road from one point to CORPORATIONS.— IL 291 another, between which there ara no gates, is not liable for any toll. Buncombe Turnpike Qompany v. Mills, 10 Ired., 30. 13. The true construction oi the charter of the Hickory Nut turnpike company is, that the State road, where it crosses tht' Blue Itidge at the Hickory Nut Gap, is not discontinued by th*-' eaid charter, but is to be continued and kept in repair by the road Overseers in their respective counties, until the turnpike is com- Sleted, and that the company, for the purpose of constructing ie turnpike, has the privilege where it is located along thi State road, to enter upon and obstruct it, when, where and as - is reasonably □ to enable them to make their improvements, ai ! w\ h is located near the State road, the same privilege is conferred, to be exercised in . manner, in reference to the interest of the company and con- venience. of the public, the latter being made for a reasonable time to give place to the former. Adams v. Hickory Nut Turn- pike Company, 11 Ired.. 14. Under the charter of the North Carolina railroad company, (see act of 1848, cl y such benefits and advantages as are peculiar to the particular tract in epiestion, and not such as are common to all the lands in the vicinity, are to be taken into the estimate, and the amount deducted from damages to land taken . f the road. Fa ■! . v. rolinah Oom\ s, 89. 15. One of the commissioners appointed, with five others, to take subscriptions at a p: lace, under the charter of the North Carolina railroad :ht in taking the subscriptions to give a;, s as to the line of the location of the road, other than that specified in the charter. North Car- , 340. 16. j ■ I to be made on a dh of a corj !• sec. 24, as applied to the Bank of Cape Fear, m i of the eleven prin- cipal directors am ir appointed by the authorities of the bank for its branches Hank of Cape Fear, 5 Jones, 288. 17. Whether under the 7th section of theeharter of the North Carplinarailroad ci in connection with the Revised h. 17. sec. 7, the service of process upon a mere station agent is a service of it upon the corpi Wago- North Caro •/, 5 Jones, 367. (Act of Assembly, 5.) (Bonds— When a bond may be avoided, 5.) 292 COSTS.— I. COSTS. I. What costs to be taxed. II. In what court judgment to be given for them. III. In civil proceedings — When plain- tiff pays costs. IV. In civil proceedings — When defend- ant po y V. When neither party recovers i osta. VI. In cases arising on the probate oj wills, who pays costs. VII. Security lor costs. VIII. Ho lie collected. IX, Costs in tin supreme court. X. Costs in criminal prosecutions. I. WHAT COSTS TO BE TAXED. 1. Surveyors appointed in land cases, by ordei of court, are entitled to receive two dollars per day while on the premises, making the plats, &c, but white atti ading=eourt, win re their attendance is neces try, I oi i only. Sheppard v. Taylor Mar. 46(40). (Court may fegulate the allowance an ch. 31 sec. 110 an i eh. - •"'• ; )- 2. A surveyor and jury, who were appointed under separate orders in several distin paid full costs it i suit, al: Locali of d for, 1 labor ansv for all the surveys. WUi , 1 Hay., 223, (256) and 484, (557.) 3. If tin [ on the premi es in ten vents, for did i as to different parcels of Ian in all : - i -the same, but the di Pendants dif- ferent, the ji I in each i Harris v. J > noil', Conf. Rep. 85 (216). 4. In an action of slander, the plaintiff is entitled to ti for the in tg of the word'-, and two fo i ition of them ; and ; ny 1 oeet tl efendant as the court mav deem to be Byrd v. Rouse, 1, Car. L. R., 5. The costs, which the act oi 1818 requires tob : taxed double, against a party w] to the Supreme* Court, and fails to carry the case up at ' oper time, are only those of the Supreme Court. Hester v. Hester, 1, Ired. 187. (Sec Kev. ' . eh. 4, see. 6. The proceedings upon a petition, for i ausedbythe erection of a mil] being in a court of law, where viva vo mony is always preferre : . I •• pai ty has ;i right to have the at- tendance of his witnesses taxed iti the bill of costs. Bridgt rs v. Purcell, 1, Ired, 232, 7. The jury, in such a case, having assessed but one dollar as damages, the court could give the plaintiff no more costs than COSTS.— I. 293 damages, under the act of 1833. Ibid, (see Eev. Code,ch. 71, Bee. 14). 8. Although defendants in an action of trespass sever in their pleas, yet whei-e there is but one judgment in their favor, as "that they go without day," they shall have but one set of costs taxed for them. McNamara v. Kerns, ~ ; Bred., 66. 9. After a judgment, the clerk has a right t > issue execution, against a party to the suit, for his own taxed & ists, although that dec! in his suit. Clerk of David Cow. t r. i! agt .(,•, -J: Ired., 131. 10. What number of witnesses shall be taxed, for a party who r icoi e s, is a matter of discretion in the superior court, and can- not be reviewed on an appeal, Broohsl '.re, 8 Ired., 74. 11. Where the general character of a part?' in an action of slander is attacked, and several witnei i i are introduced for the purpose of sustaining the ati I ing only two witnesses to a fact to be taxed, in the bill of costs, dues not apply; it being a case forth'' F the discretion of the judge presiding at the trial. Holmes v. Johnson, 11 Ired., 55. 1l'. When costs f i.r. been taxed, upon a motion at a subsequent term as to the party by whom tney are to be paid o late to object they did not attend. Harris v. Lee, I Jones, 225. 1". Where then ,:1 counts, in a declaration for dis- tinct causes of action, and the plaintiff abandons one of the in the prog] e trial, and obtains a verdict on the • ,i. , counts, the court, on the motion of the defendant, will 'order that thee >r the attendance of witnesses to sustain aint, shall not be ■ inst him. Fox v. E< ii . 1 J< in s, 523. 14. There is no provision in the law for taxing, as the costs of suit, services rendered by a sheriff, under a writ o\ . in carrying a witness to court, b fee for the execution and return of the writ. Biggerstajf v. Cox ■ i i Rev. Code, ch. 102, sec. 21.)' 15. Where a witness was ruled by the court to be inc tent, and such decision was not apj bal the costs of his attendance could not be taxed ■ ■ I the adverse party ; even-though the witness was improp- erly excluded Keith v. Goodwin, 6 Jones, 398. 111. The taxation of costs by the clerk is subject to the super- vision and control of the court, which will decide on objections to tile taxation of witnesses, on account of their number or for impertinence, or because not having been tendered, and the court generally proceeds upon a rule obtained for the purpose. Wooley v. Robinson, 7 Jones, 30. 17- Where a party is apprehensive that the clerk will err in 294 COSTS.— L-II.-III. the taxation of costs, he should move tho court at ouce for special directions to the clerk. Ibid. See (Amendment.) (Practice — Costs.) U. IN WHAT COURT JUDGMENT TO BE GIVEN FOR TIIEH. 1. Where a judgment has been had in the Superior Court, and on an appeal to the supreme court the judgment is reversed for error, the whole judgment, as well for the costs as for the other matters, is set aside, and the costs must be taxed and a judg- ment given for them in the court below, which finally deter- mines the case. Stafford v. Neivsorn, 12, Ired., 17. 2. After an appeal from a county to a superior court, a proce- dendo will not be ordered to the county court to give judgment for the costs, because the question was to lie determined by the superior court in deciding on the appeal Pmij v. Bay, 12 Ired., 24. 3. Where there has been an appeal to the superior court, and thence to the supremo court, a pro annot issue to the county court to give judgment for costs, because that question is involved in the appeal. Ibid. See (Practice — Costs.) III. IN CIVIL PROCEEDINGS WHEN PLAINTIFF PATS COSTS. i. The plaintiff is liable for his own costs, when defendant is ihsolvi i I icution may - against him fur them. Merrit v. Merrit, 1 Hay., 20, (27.) S. P., i r Court Offiae\ v. Lockman, 1 Dev., 14G. 2. If the assignee of an unnegoti Bue in the name of his assignor and fail, lie shall, upon a rn p compelled to pay the costs. Ashe v. Smith, 2 Hay., 305, (Overruled by /.■ i, 4 Jones, 423.) of a suit by i of a plaintiff, exe- cution for co ued, until a sci fa. has issued to his representatives. Sim', • 'iff, 1 Murph., 113, S. C, i Hay, 341,(521.) 4. A plaintiff who fails in his action, is liable to the costs of all the defendant's witnesses, though they were rn d, if it appear that they wore called, sworn, and put in the care of the sheriff Venabh v. Martin, 1 Car., L. P., 515, (lis.) 5. Where severaPtfefendants, sui d in trespass, plead severally, and upon the trial a verdict is rendered in favor of some of them, they shall recover full costs against the plaintiff notwithstand- ing his recovery against the others. Stoclcstill v. Shit/ird, 1 Murph., 39, S. C, Conf. Pep., 556, (574.) 6. When one appeals from an order of the county court, grant- ing to another leave to build a mill, and the order of the county COSTS.— 1IL 295 court is affirmed, the appellant shall pay the costs of the superior court under the general law regulating appeals, but the appellee ls Gable for the costs of the county court, under the act of 1771). Green v. Ealrnan, 2 Murph., 12. (See Eev. Code, ch. 71, sec. 2.) 7. The report of the justice and two freeholders, under the act of 1777, as to the sufficiency of plaintiff 's fences upon a warrant to recover damages done by cattle, being deemed conclusive, plaintiff was ordered to pay the costs of witness summoned to prove the truth of such report. Nelson v. Stuart, 2 Murph., 298, S. C, 1 Car., L. E., 287, (29.) 8. When the lessor of the plaintiff in ejectment enters on the promises, during the pendency of the suit, he defeats his own action, and is liable to pay the costs of the suit. Gubbs v. Ellis, 2 Car. L. B., 612, (415.) 9. -V party is at all times answerable for his own costs, and h he succeed in the cause, execution may issue against him therefor, it' the same cannot be made out of the party cast in, 1 Dev., 146. 10: An infant is liable for th 'a suit conducted byhifl 'n ami, and u] i Igment of non-suit &fi. fa. may issue against his property. Howetbv. Al I Dev., 431. 11. Where the proceedings under a writ of mandamus ai !, the relator. d to pay the costs. DicJuns v. 27:"' ■ " ' . i >ev., and Bat., 12. Where a petition is filed to discontinue an old n certain points, and establish a new i i : points, and the petition is opposed, and the court, upon the hearing, ontinue the old road and establish the new one, as prayed for. but directed another road to be opened, passin only a part of the route prayed for by the petitioner, ii tifis must pay costs to the defendants. D Hill 11 Ired., 9. 13. When an administrator establishes his plea of fully administered, the plaintiff must pay the costs. T( rry v. 11 Ired , 65. 14. In an action of tree idants, where three of them were acquitted by the ibsequent to that of i he trial, to have the i defendant's witnes ■lie half of all the been summoned jointly in favor of should 1 ' by the I this, although the pleas i joint in form. Harris v. Lee, 1 Jo 15. Whore several defendants are sued in assumpsit and in their pleas, one. who has a verdict in his favor, is entitled to have the attendance of witnesses, sumrn I for him, in his bill of costs against the plaintiff, although the jury found for him on a point in the case, which made it unnecessary 296 COSTS.— III. -IV. to enquire as to the matter for which they were summoned ; provided they were not summoned fraudulently for the purposes of vexation. Mimday v. Henry, 1 Jones, 487. 1(3. If a plaintiff obtain a rule upon a defendant to show cause why he shall not be attached for a contempt, he must pay the costs if the court adjudge that there was no contempt. Weaver v. Hamilton. 2 Jour-, . I 17. Upon a plea "since the last continuance" pleaded in apt time, and found to be true, the plaintiff, under act, Rev. Stat., ch. 31, sec. 79, must pay the liol< c i of the suit. Wilson v. Pharr, 2 Jones, 451. (See Rev. Code, ch. 31, sec. 75.) See (Ejectment — Of the declaration, 20.) (Executors and Administrators — Of their liability for costs.) (Highway, 8.) IV. IN CIVIL PROCEEDINGS WHEN DEFENDANT TAYS COSTS. 1. If the plaintiff summon material witnesses and not more than the number allowed by law. and they are absent when the trial comes on, but the plaintiff nevertheless recovers, the de- fendant shall pay 111' 1 co ts of i he former attendance of the wit- nesses, upon the ; I: affidavit of their materiality. Car- penter y. Taylor, N. C. Term, R., 265. (689.) 2. Where the plaintiff declares in three counts and enters a not pros, in two of them, but obtains judgment upon the third, the defendant is not entitled to recover any costs, though he had summoned witnesses who were ad be relevant to de- fend him against the counts, on winch the nol- pros, was en- tered. Costin v. Baxter, 7 Ired., 111. 3. The recovery of c< Sts depends upon statutory regulations, and by our statute, on i 1 1 arty who obtains a judg- ment is entitled to his costs. Ibid. (See Rev. Code, ch. 31, sec. 75.) 4. When a person, who has commenced a suit 'in formapau- peris, is afterward ' i into a prosecution bond, he is entitled upon his recovery in the action to a judg- ment for his costs, as well those incum LI he was dispau- pered ■• as those incurred afterwards. Revel v. Pearson, 12 Ired.. i 5. Where a suit is pending in court for several terms, and then an order is mail.', irporj a rule to show ■ ause why the plain- tiff should not give further security, that he may "continue his suit without further si curity;' it wa • held, that this was not an order allowing the plaintiff to continue his suit in forma pau- peris^ and that being hound to pay his witnesses for their atten- dance both before and alter the order, he was entitled, upon suc- ceeding in the suit, to full costs. Biggerstaff v. Cox, 1 Jones, 534. (!, In the action of trespass vi et arm\s for beating the plain-. COSTS.— IV.-V. 297 tiff's slave, the plaintiff is entitled to full costs though his re- covery be less than four dollars, the case not being embraced in the act, Rev. Code, ch. 31, sec. 78. WatMns v. Hailey, 5 Jones. 27. 7. Where a plaintiff obtains a verdict and judgment, he is entitled under the Rev. Code, ch. 31, sec. 75 to a judgment for full costs, In In- taxed by the clerk, except in certain cases whereby statute less thai fall costs are given. Bobin- son, 7 -Jones, 30. 8. Wl al articles are sought to be recovered in an ac- tion of detinue, under a declaration containing a single count) and the plaintiff recovers part, but fails as to the r< sidue, the lely as to the articles not r& overed, are ■ '• to 1 excl ■■' If im the bill of costs, but m ty be tax to exceptions for excess in number, or for irre- levancy. 9. Where the plaintiff, in an action of slander, recovers less than four dollars in dai . ' can under the act Rev. Cede, ch. 31, sec. 78 me amounl i but the r that act, to have his costs taxed tiff, he having to pay them himself. Coatesv. S . 7 Junes. 124. and Administrators — Of their claim to, or lia- bility for costs.) (Mandamus and Quo Warranto, 1.) V. WHEN NEITHER PARTY RECOVERS COSTS. 1. Where heirs are made parties by set. fa. loan action of tres- pass .,■/,■ rinally brought against the ancestor, and aft r tli lapse of several years the sci.fa. is dismissed on de- fendants' motion, on the ground that they were not properly iarty is entitled to costs. Porter v. Knox, ICar., L. R., 521, (134.) 5. The heirs ;, i such case would have been entitled to costs had they pleaded in abatement. Ibid, 3. Where an action of detinue for a slave was referred, by a i i court, to arbitrators, who awarded the slave to theplain- ; he should pay the defendant the purch but were silent as to the costs, it was held thai, each party must par his own c n ts. Arrington v. Batik; 2 Murph., 240, S. O, l! Car.. L. E, 109. (14.) 4. When a suit abates by the death of one of the par' there is no judgment lor costs, each party is liable for his own costs Offia rs v. Taylor, 1 Dev., 99. 5. Upon an arrest of judgment neither party recovers costs, but each pays his own. State Bank v. Tivitty, 2 Dev., 386. 6. Where a person sued in forma pauperis, and recovered a ver- dict, but the judgment was for the amount of the verdict only, 298 COSTS— V.-VI. and not for the costs, he cannot, afterwards, upon a rule, 'ha"ve an order that execution shall issue against the defendant for his costs. Carter v. Wood, 11 Ired., 22. 7. Where an application is made for a mandamus by relators, who have no particular or private interest in the controversy, which was entirely of a public nature, they are not liable to pay costs to the defendants, on the dismission of their application. State v. Bonner, Busb., 257. 8. Where a defendant, in a bastardy proceeding, is acquitted of the charge by the jury, upon an issue submitted to them, he is not bound for the State's cost. Adams v. Pate, 2 Jones, 14. 9. Where a cause pending in court is, by a rule thereof, re- ferred to arbitrators, who proceed to act and make an award afi to all the matters in controversy, in favor of one of the parties, but without saying anything. as to the costs, the successful party cannot have a judgment for his costs, but each party must pay liis own. Debrule v. Scott, 8 Jones, 73. 10. The contest of a sheriff's election, before the justices of the county court, is not an afition within the meaning of the Revised Code, <-]i. 31, se ■. 75, which gives to the successful party full costs, but in such contest each party must pay his own costs. •ay, 8 Jones, 278. 11. In a matter of: nature, the officer, who acts on be- half of the- Slate, doos not pay costs to the other party, though the latter may succeed hi the suit. Houston v. Neuse River No ligation Company, 8 -Tones, 476. ( I >istribution 7,) (Mandamus and Quo Warranto, 1.) VI. IN CASES ARISING ON THE PROBATE OF WILLS, WOO PAYS COSTS. 1. A will was offered for probate in the county court, a caveat red by the defendants, and on the issue being found in favor of the will, both as to real and personal estate, the defendants appealed. On the trial in the superior court, the jury found it i good will of personal but not of real estate that the plaintiff had a right to recover from bhe di Pendants their costs both in the county and superior courts. If the dants had appealed only from so much of the judgment of the county court as related to the real estate, then the c >sts of the superior court would have followed the judgment of that court >,- 1 Ired., 561. (Wills of real and persdfca] as to their execution and probate, are now put on the same tooting. See Revised Code, ch. 119.) 2. Upon the trial of an issue of devisavitvel non, the court has no discretion to make any other than the losing party pay the whole costs. Little v. Lockman, 5 Jones, 433. (Courts have now a discretion to direct how and by whom the costs shall be paid. See acts of 1860, 2nd extra session, ch. 7.) COSTS.— VI.-VII.-YIII. 299 See (Executors and Administrators — Of their liability for octets, 4.) VTI. SECUK1TY FOR COSTS. 1. The courts have power, from time to time, to make rules for the plaintiff to give further security for the costs, and, in case of failure to comply with the rules, to dismiss the suit. Tyler v. Person, 1 Murph., 498. 2. Persons may sue in the superior court in forma pauperis, upon satisfying the court that they have a reasonable ground of action, and from extreme poverty are unable to procure security; , 2 Murp'h., 247, S. C, 1 Car. L. R. 101, (13.) (See Rev. Code. ch. 31. sec. 40.) 3. Sureties for the prosecution of a suit are bound for the costs accruing before, as well as after the execution of the bond. Wilson v. 57. 4. Where the plaintiff, at the commencement of a suit, ha* given security for cution, the court ■ cards, on his petition, allow him to prosecute it in ■curity, and obtained a rule tha irrther seci ould be given, or tiould 1 Holder v. Jones, 7 Ired,, 19L 5. In such a case the court ought either to have dismissed the suit, according to the rule, or to have made an order on ths plaintiii's petition, to permit him to carry on his action without • irity. It could not, without the defei , discharge the first surety from his responsibility. Ibid. 6. When the heirs come in and are made parties, upon the m of ejectment, the defendant may, ififcfc think proper, obtain a rule upon them to give security for tHP&sts, which the court will grant, if ; is to the prosecution ' nt, or in doubtful circumstances. Thomas v. KeUy, 13 I red., 43. Vni. EOW COSTS MAY BE COLLECTED. 1. Whi ire a plaintiff in a suit was, although successful, ordered he costs of certain w was held that the court might order afi./a. to issue .for the le in the name of the clerk's office, and that, if it appeared upon the return of thi that tlie party was insolvent, the court might properly order such costs to be paid out of certain money in the ha] ids of the sheriff, raised on an execution in favor of such insolvent party. Clerk's Office v. Allen, 7 Jones, 15G. See (Costs — What costs to be taxed, 10.) 300 COSTS— IX.-X. is; costs in the supreme court. 1. Although costs are not expressly given by any act of the General Assembly, organizing the supreme court, yet the powei of giving a judgment tor them necessarily results from the several acts of 1810, 1818 and 1825. Sparks v. Wood, 1 Dev. and Bat., 489. (See Rev. Code, eh. ?,?,, sec. 13 and 21.) 2. If a judgment against a defendant be reversed, in the supreme court as to part, and lie affirmed as to the remainder. fche defendant will be entitled to recover his costs in the supreme court. ^ 8 itterwhite v. ( 'arson, 3 Ired., 549. 3. When.-. upon an appeal to the supreme court is id in part, the appellee must pay the costs of the supreme court. Harris v. Lee, 1 Jones, 225. X. COSTS IX CRIMINAL PROSECUTIONS. 1. The court cannot order the State to pay costs on obtaining a continuance, nor indeed in any case. State v. , 1 Hay, 221, (254) 2. If the prosecutor on an indictment had probable cause, though his motives were of the worst kind, he ought not to pay costs." State v. Forsyth, Tay., 21, (16.) 3. If the county court order the prosecutor to pay costs, and at the next term .and order the defendant t< pay them, and be appeals to the superior court therefrom, tha court wiil not examine the question, though the proceeding h. improper, if the whole record of the cause have not been brough up. Ibid. 4. A defendant in an i is not bound to pay the wit 1 pon conviction. Stated. Uuryak. Conl Hep.. 63, (196.) 5. On the acquittal of a. defendant in an indictment for petit larceny,. the court may order the prosecutor to pay the costs. State v. Lambrieh, 1 (Air. L. 1!., 543, (15(3.) 6. In no ease, where the punishment extends to life, limb or member, can the court on the acquittal of the defendant order the prosecutor to pay costs. In all other eases it may be done, if the prosecution appear to be frivolous or malicious. Ibid. (See Rev. Code, eh. 35, see. 37.) 7. Wl and jury returns a bill of indictment, "not a true bill," the pn secutor is bound to pay the witness for the State, and one half the other costs. State v. Smith, 2 Murpfa., fiO. 8. Upon the removal of an indictment to another county for trial, the county from which the cause -was removed will he en- til -d to any hue that maybe imposed in the case of a conviction, and will be liable to the costs of the prosecution in the case of COSTS.— X. 301 an acquittal. FinSley v. Eririn, 2 Murph., 214, S. 0., 1 Car. L. IL 105, (14.) 9. When ; on an indictment, on ac- count of some defect, aft lepende'd for several terms,and a new bill is found, the defendant upon conviction mav be a m- jelled to pay fortheatt the witnesses the whele I imi State v. Hashaw, 2 Car. L. R., 251, (23c.) 10. [fan indictment be quashed, and the prosecutor be order- ed t" paj the costs', he is nol I r the attend- 1 witnesses on either side. Offu \ v. Gray, 2 Car. L. E P-i 11. Where the defendant in an indictment is acquitted, or a i bound to pay his*own cdsts*and no other. 223. 12. On an ap me coHft, the sure- the appeal are ts of the BU] nut prison charges are uot a part of such costs, Sto crs. 1 Hawks 13. The act i l 1787, authorizing persons convicted on indict- the co ts t( I out by tb held to be repealed by I pf 1797. State v. Hood, 1 I'-. 11. Whereasla 1 ledinjailup murder, and i ! the jail fees as well _' D» v. 47. 15. An owner, wl ! i against hie slave, i i iviction, to pay not on!" the arrying the sentence inti 16. The court can, in no c rand jury returns a bill. ■ i L" to pay the costs.— ■ 17. An indi ' one of th se "fi : or mali wev, upon jury, io ordi cuter to pay the ause at the tin a ■ • ler the pros ; u tend, and in ] case e ■ ■ .. extend i - a member. Ibid. (See Rev. Code, ch. 7, c 51.) 18. When ; from one county to another, in which the prisoner is pense oi guarding the jail in the enmity, in which the convictio] place, must !"■ defrayed by the county from which the cau removed. State v. Justices of Anson, 11 Ired., 135. 19. Upon the conviction of a slave, under the 48th section of the 111th chapter of the Rev. Stat., the owner and not the hirer 802 COSTS.— X.— COUNTERFEITING—COUNTY. is liable for the costs of the prosecution. State v. Levi, Busb. 6 (See Rev. Code, ch. 107, sec. 69.) 20. Whether a justice can or cannot give costs in a proceeding an a peace warrant against the defendant, bound by him to ap- pear in court, such court cannot revise the judgment of the jus- . tice giving costs. State v. Wilson, 1 Jones, 550. 21. The master of slaves committed to jail on the warrant oJ a, justice, for an offence cognizable in the superior court, is liable for the costs including the jail fees, although the grandjury, Upon an enquiry, may have refi l :e a presentment against the slaves. State v Peter, 6 Jones, 846. COUNTERFEITING. See (Indictment — In what cases an indictment will lie; (Indictment — Form and matters relating thereto, 36-37-40-41- 46-^64^65-124^159-160.) COUNTY. 1. As the legislature may com titute two counties out of one, it may also, as incident i ■ I hat power, direct a fair and reasonabL division, to be mad any; fund bef levies on the inh: unties in common, and to provide for pnfi ■■ ■ ■ "f by those who have it in hand. Lovev Schenck, 12 Ired., I 2. Interpretation by the court of the several acts relating to the division of the counties of Lincoln, Catawba and Gaston. Ibid. 3. The act of assembly, requiring the payment of certain moneys by the county of Lincoln to the county of Gaston, ap- plies only to such persons as had the fund, or a part of it, in hand at the passing of the act, or might have it afterwards. It does not charge one, through whose hands the money had merely passed, and from whom it had been taken by the court Before the passage of the act. Love v. Iiamsour, 12 Ired., 328. See (Corporations — Of corporations generally, 15.) (Jurisdie tion — ©f the county and superior courts, 7.) COVENANT. 3Ci3 COVENANT. 1. In covenant for the non-delivery of certain articles, upon the plea of "always ready," the plaintiff must prove a demand and refusal, or neglect. Armistead v. „ [bbalson, Mar., 25, (12.) 2. A deed acknowledged thai I bt, and. in consideration thereof, com 'editor, with authority to sell for- his sati qoI amount to a covenant to- pay the money, fo] i action can be brought, for the same deed shows it satisfied. v. May, 2 Hay., 127. <:. 3. Covenant will lie on the condition of a bond with a penalty Cat. by Haywood. Jasper v 2 Hay., 339, (518) and 351, (538.) * 4. Covenant will not lie on the assignment, under seal, of a bond for the payment or delivery of tobacco, the breach assigned being that the obligor in the not deliver the tobacco. Brich U v. Batch lor, Conf Rep. 109, (239.) 5. An assignee by estoppel cannc i an action of cov- enant. Nesbii v. Nesbit,< There the covenant in a charter p: freight day alter the delivery of the goods to the con ignee, 1 d that the el could not upon the ■ without averring and proving that he had earned the according to the terms of the covenant. Lorent v. Potts, 1 Car L. R. I 7. Defendant covenanted, ",thatin consideration of £44 paid to him, he had sold to plaintiff a note upon J. A. for £50, and ii there should any thing recovery of the said, n if J. -V. should pa ' . the depreciation, the same good to the d a receipt by one D. to him tor £18, the [f to make it good," held that tie t secured thg plaintiff against tib^e insolvem J. A., the allowance of the cE ; of D; and that an a id not m a judgment by a suit at law. Hoover v. Clark, 3 8. By the affirmative plea of the performance of covenants, the to prove whatever is necessary for his de- fence. J, dgesv. Dean*, 2 Hawks. 93. 9. Where one covenants for himself, without mentioning hie heirs, to convey land on a certain event, and dies before that even! happens, his administrator is not liable; and it seems that the only remedy is against the heir inequitv. Eark v. McBbaveU 1 Dcv.'ltJ. 304 COVENANT. 10. In an action of covenant for uncertain damages, no set off, or claim in the nature of a set off, can be allowed; and hence in an action against a lessee, for breach of his covenant to build a mill within the term, it was IheH, that he was not entitled to show, in mitigation of damages, the building of the mill after the term. But it seems that part performance of the covenant, during the term, is an answer to the damages pro tanto. Dowd v. Faua tt, 4 Dev., 92. 11. Where a party incurs an obligation by his own act, he will be bound to th at, and will not he excused from its non-performance by accident from inevitable ity, as he would be, if th on were imposed on him by law.' And for the breach of such voluntary engagement, the extent of the injury forn per measure of damages, how- b ve been defeated. Clancy v. Ovcr- 12. '■ :pressly made-, with A, but declar- ed to I benefit of B, vests the legal interest in A, yet is- not i sly declared, the inference of law, because the infere ason, is that the covenant is ivith him or them, for whose benefit it purports ti ■ en given. Therefore, where certain persons guaranteed that W would pay to the -j at om] any of stage contractors, of mon that might come to his, W's, hands," as also for the company, ; . that an action I lefault of W, shi ■at by the company, and net by their agent, to whom the money was to be paid. * /'. 7c v. Gilmer, 1 Dev. and Bat., IS. mild set up mere delay, or want o a i!i i'. M.-e i gainst, an express, al covenant, it coulcl^^eral the rown on him. Ibid. 14. Iu tomaki eyanceof land, "when called for," t,o one, with . adi ing "and to his heirs," if th il [out having called for a conveyance, th cove- lier not bound to convey to anyperson, or, if to any : he heir; and in aei > ad atee maintain an ac ovenant. 1 ' !, 4 Dev. and Bat., 15. Where it appeared ant had covenanted to put up an engine for a steam by a particular tin . in a buMi] rected by the plaintiff, whi h building \ at the specified time, it was held,, i th erectii the building by the plaintiff was necessarily a condition preci Lent, and that, therefore, the plaintiff could not recover for a I of the defendant's covenant, in not putting up the engine by the time appointed. Boyle v. Reeder, 1 Ired., 607. COVENANT. 305 1(3. Where the plaintiff had covenanted that he would build and complete a house for the defendant, by the first day of April, 1842, and the defendant in the same deed agreed to pay the plaintiff $2,50Q when the house was completed; if. was held, that the latter v. as a dependent covenant, and the plaintiff could not recover on the covenant, unless he showed that he had com- pleted the house by the first day of April, 1842. Clayton v. Blake, 4 Ired., 4D7. ' 17. The dependence or independence of covenants is to be collected from the evid I sensi and meaning of the parties. and, however transposed they may be in the deed, the prece- dency must depend i order of time, in which the intent m, requires their performance. Ibid. 18. Where a house has I een built under a cov nant, though not according to the conditions of the covenant, and the person for whom it is built, accepts it, although the party building 'cannot recover on the covenant, he may, in a proper action, y i over a remuneration tor his work, labor, &c. Ibid. 19. Where A gave by deed five hundred dollars to B after his, I'm granti •: ■ > : ath, to hi ve and to held In him, Iris executors, &c , and then warranted the said sum to take effect at his death, to the said I!, his excutors, &c, it was lield that this was not a remainder in a personal chattel after a reservation of a life estate, ticular chattel being designated, and that an action of covenant, as well as of debt, might be brought on it against the istrator of A. Taylor v. Wilson, 5 Ired., 214. 20. Covenant and debt are concurrent remedies for the recov- ery of any money demand, when there is an express or implied contract in any instrument under seal to pay it. 1 21. A, B and C coi mai 1 in January, 1842, to i>< ' amity D and E tor advances made by the two latter to F, durh 2; I ie year 1842, each (including D and E) to be responsible not exceeding $500. On the 6th January, 1843, the said parties, together with '■. the defendant, covenanted "to continue their n sponsi- bility for F for and during the year 1843, upon the • terms and for the same purposes as set forthintheforegoin covenant for the year 1842," with the same restriction as to the n 5ponsi- bilitynf the parties to Sal in. One of the parties proved ; 1 dvent; and it was held that the defendant, G, was only respi nsil for ad- vances made in the year LSI:!; and that neither of the >\ lantors Was responsible for more than $500 in either of the 3 s; and that it was a several contract so that none was res] Me for ! the share to be contributed by the one who proved ulvent. Williamson v. ChiU s, 5 Ired., 244. 22. When a covenant is once made between parti, e it binds and is lee-ally presumed to subsist, until it be showi be per- formed or resemded. Therefore, where A covenai vith B that he would pay him rent for a certain tract of Ian I rovided '20 306 COVENANT. B continued a contract, respecting the said land then; 'subsisting between him and C ; it ivas held that before A could* discharge himself from the payment of this rent, he must show that the contract between B and C had been rescinded. Love v. Edmon- ston, 5 Ired., 354. 23. On a covenant by the defendant to pay the plaintiff $524, provided the title she > acquired to her deceased husband's land by the sale of a sheriff under an execution against the heirs of her husband, should prove to be valid, in opposition to asalemade by the executor, urn lev i power in the will to sell for the benefit of volunteers, it was Mdthatthe plaintiff was entitled to recover, the creditors having a right to sell the land in preference to the right of the executor under the will. Ingram v. Sloan, 5-Ired., 565. 24. Where there is a conveyance of chattels in immediate and absolute property, and there is in the same indenture a distinct personal covenant of the grantee, that the grantor shall have certain uses of the property during life, that ought not to be construed as a reservation of a liie estate, but betaken as a cov- enant merely; chiefly because the granting part of the instru- ment would otherwise be made void, and thus thewhole contract become of none effect. Howell v. Howell, 7 Ire ■ 33. To' make a valid covei ant, it is e ssential that there should be a covenantee named in the instrument. Kent v. Edmunston. 4 Jones, 529. 34. Where .V covenanted 'that he would, on a certain day; make and tender to B a deed for a certain tract of land, arid B covenanted that thereupon he would execute and deliver bonds for the purchase money, and A tendered the oeed 'three days before the specified time, (V was held that A had not complied with his covenant, and could not maintain an action against B dthough he had declared, when the deed was tendered, that he lid not intend to comply with his covenant. 1 fatter v. Alien, ') Jones, 58. 35. A covenant containing the term-rot' the hiring of a slave, and providing that the slave is ''not to go out of the State," does act mean that the party is to prevent the slave from going out of the State at all events, and under all circumstances, but to fori iid him from taking the slave out of the State to work, and to bind him to use proper care and reasonable diligence to pre- 308 GOVENAHT. vent the slave from escaping beyond the limits of 'the State. Poyner v. McBae, 5 .5 ones, l ; 7<>. 36. Where A covenanted in writing-, under seal, to deliver a quantity of flour to a partnen hip firm, and in the same instru- ment was a stipulation by one of the partners for the linn, and Bigm .) (Warranty — Of the action upon a warranty and the evidence to support it, 4.) Warranty — Of the damages to be recovered.) (Widow— Of her dower, 0-13.) HI. WHAT WILL INCREASE OR MITIGATE DAMAGES. 1. Previous threats may be given in evidence to increase the damasres, in an actions for assault and battery. Sledge v. Pope, 2 Hay..' -1(12. (£07.) 2. In an action for an assault, any immediate, but not any re- mote provocation may lie given in evidence to mitigate dama- ages. Barry v. Ingles, 2 Hay., 102, (262.) S. C, Tay, 121, (7.2.) 3. In assessing damages for the noiv-performance of a contract, the standing of the parties is entirely immaterial, and is, there- fore, inadmissible as evidence. Rowland v. Dowe, 2 Murph., 347. S. O, N. C. Term, R. 302, (722.) 4. In an action for a malicious prosecution for a felony, the DAMAGES— III. 317 defendant may give in evidence, in mitigation of damages, that, after the prosecution instituted by him, the character of the plaintiff was bad, upon subjects unconnected with the felony, for which he was prosecuted Bostick v. Rutherford, 4 Hawks, 83. 5. In an action of trespass to try the right of the plaintiff's freed nn. the amount of damages is within the discretion of the jury, and it' it be shown that the plaintiff's mother, a free wo- man, had been bound by indentures to the t" nay the interest to G annually, it was held that A had no righted demand and recover back the moneyirom B. Parker v. Bfoks, 8 Jones, 447 See (Covenant 18-19.V, 320 DEBT. —II.— DECEIT. II. Or THE VERDICT 833 THE ACTION OF DEBT. 1. In actions of debt founded on specialty or contract, the verdict can not be for a less kebti than is demanded, unless it be found that a part of the debt is satisfied; but in debt on i stat- ute, giving an an ! ftain sum by way of penalty, the verdict will be good, although a loss sum, than is demanded, is found to In- due. Dozicrr Bray, 2 Hawks, 57. 2. In debt the plaintiff may have a verdict for less than he demands, bi I the proof must agree with his allegations. JVaugh v. Chaffin, 3 Dev., 101. 3. in debt, the exact sum demanded in the writ need not be found in the verdict, when, from the nature of the demand, it is urn ilain. But where the contract, as stated in the declaration, conclusively fixes the amount due, the verdict must agree with the writ, or the jadgment will be arrested. Do\)d v. Seawell, 3 Dev., 185. 4. The same principles apply to actions of debt on penal statutes. If the statute fixes a penalty, to be measured by refer- ence to some uncertain standard, the verdict stands well with the declaration, although they do not agree; but if the penalty be certain, the very sum demanded by the writ must be found by the jury. Ibid. 5. In an action of debt upon a penal bond, where tin; declara- tion states all the conditions to be broken, the verdict of the jury which finds, "the conditions of the bond " not to have been performed, but broken, need not specify the particular breaches upon which the damages are assessed. That is proper, only when si inie of the conditions of the bond arc found to be broken, ami others not broken. Gibson v, Windsor, 2 Dev. and Bat, DECEIT. See (Action on the case — Deceit.) DEED. 321 DEED. I. Of the execution and date'of a deed. II. Of the parties to a deed and the cus tody thereof. III. Of the consideration. IV. Of the presumption of a deed. V. Of ttie operation of a deed, and when it may be avoided or not. VI. Of the construction of deeds and their various parts. VII. Of deeds in trust. I. OF THE EXECUTION AND DAffE OF A DEED. 1. An acknowledgmei I by one of two obligors that a deecl was executed by both, is not sufficient proof of its execution. .1 Hay., is, (23.) 2. Th ■ i tes ion of witne i.tl to a deed.: and E roof of the grantor's handwriting will be proof of the sealj ut not of the delivery, which i> to be inferred from other cir- cumsta am v. Hall, Mar. 1, (1.) S. C, 1 Hay., 193, (222.) 3. The date of a deed is not of its essence, and a party theret > is imt estoppi d from proving, that it was delivered on another than the day of its date '' lav 2 Hay-, 154, (334.') 4. A delivery of the deed t( a ptj cl ad taking it back by the vendor, beti re registra rchasemoney, will passthe title to the vendi e I deed be afterwards regis- tered. Clark v. Arnold, 2 Hay., 287, j L67.) 5. The handing back of a deed, after it has been regis! I, dues not restore the title. Churchill v. Spaight, 2 Hav.. 338, (515.) G. If a deed 1 si edited bj an attorney, his power must he produce i. Ya I, Tay. 25, (19.) 7. A bill of sale, like other d effect from its delivery! A bill i : " --'" bearing ' certain time, but which was I nbscribi I i - :: ■ quent time, delivered at such latt< r time, there being no] ' i anv prior delivery. Nichols v. Palmer, 2 Car. L. R., U9.) 8. When an instrument is signed by two persons with but one seal affixed, ordinarilyit is to be taken as the deed of that party only, whose name is written nearest to it; but it may be shown by proof, either on the face of, or dehors the instrument, that the other party adopted the seal. Yarborough v. Monday, 2 Dev., 493. 9. Two parties may adopt the same seal, and then it is the deed of both; otherwise it is the deed of one and the simple contract of the other; but the question, whether both parties did adopt the seal, is one of fact and not of law. Yarborough v. Monday, 3 Dev.. 420. 21 322 DEED.— I. 10. Where the bargainor, Laving signed and sealed a deed, said to the attesting witness, " I acknowledge that to be rriy act and deed," it was held, that these words, being addressed to one who was not intended to take possession of the deed, did not amount to a delivery. Moore v. Collins, 4 Dev., 384. 11. Where, after the deed was executed as stated in the last section, the agent of the bargainee offered to take it and carry it to him, he being out of town, br.t the bargainor objected, say- ing it might thereby !»• lust, and that In.' expected the bargainee back, and that he himself would hand it to him; ii was held, that this refusal of the bargainor, to part with the custody, de- stisoyed the effect of his antecedent words ; and thai the jury could not infer a delivery at the time of the bargainee's return, but only at the time when the deed was proved to be in hi- pos- session. Ibid. 12. Where an instrument, purpoi tingto convey lamb is si sealed and delivered, by the grantor to the grantee, it is a deed and not an escrow; although the parties afterwards place it will .third person for safe keeping, until they both shall call for it. Gibson v. Fartee, 2 Dey. and Bat, 530. 13. Execution includes delivery; and when it is stated - deed as a fact, that '-its execution wis proved." it must be uu- (d that such evidence was offered as established facie itjs delivery. If it were, then the production of the deed by (Hie of the grantees, accompanied with testimony of long possession under it, is a very strong cirumstance to confirm the orimct facie proof of delivery. Eoss v. Durham, '■■ Dev. am! Bat.,:)!. 1\ The deliver- 1 ; if tv.paper, as a deed, may be either actual at tile time of the making, or I \ the donee's taking possession of it as a deed atthe making? or • iquent time, if done with the knowledge and consenl of the maker. But where there were neither acts done nor words spoken at the time of the making, from which a .delivery of the paper as-.a deed to the donee, or to any person for him, could be inferred, ami the pos* session of the paper bj the donee, long afterwards, was satisfac- torily accounted for. it was held, that there was no evidi nee el' a delivery to be left to the jury. Clayton v. Liverrrmn, 4 Dev. ami Bat,, 238: 15. V. Baerea father signed and sealed, in Soutl Carolina, a deed for a slave to his daughter, who resided in North Carolina, ami delivered it in South Carolina to his b m, to he handed to his daughter^ was held that the delivery was complete, and fcfc deed, therefore, well executed in South Carolina. Morrow \ Ale. under, :.' Lred., 388. 10. A person signed and sealed a deed for slaves to 1'.. called npoi: witnesses to attest it. ami acknowledged that it was hi.; ad 5&d_deed; tic deed was left on the table and was not again sei r DEED.— I. 323 until after the grantor's death, about a month after this trans- action, when it was found in Lis trunk- among his- valuable papers; he had previously said that he intended to give his property to B, andjast before his death said, "he was satisfied with the way he had disposed of 'bis negroes, the deed cf gift was in his trunk, and he wished it. delivered to B, immediately after his death," it was held thai these circumstances did not ■ ate a delivery of the deed, 1 or even afford evidence tend- ing to show a delivery, which could be submitted to a jury Baldwin v. Maltsby 6 Ired., 505. 17. Where there I as been no delivery in the lifetime of the grantor, a deliverj after his death, though at his request, is void Ibid. 18. Where A and ~-\. by an instrument of writing, "gave and thed" to (' 1 1 rtain slaves, "to have and to keep bhe afore- said property ar our death," and it was proved that the donors intended this as a deed of gift, and so signed, sealed and delivered ; I that it was a deed of gift and not ?. testamentary pap r ( layU n v. Liv rman, 7 lred.. 92. IV. In ar action of debt on a covenant, proof of the hand writing of the obligors, together with possession 1 y the oblige* . is evidenc i from which the .jury may presume a delivery of tie i the absence ol proof to the contrary. And the circum- if there b :ing three seals affixed, without any names bi - lore them, is uol sufficient to rebut the pr< sumption of delivery, or to show that those, who did sign, did n< t inti ncl that ti should not be delivered, until the other j ersons signed l1 " ll in ■-. 7 [red., 384. 20 Che delivery of a d lis a'questibi of fad and rescribed no particular tornij'in which it shall be made. Floyd v. Taylor, 12 Ired.. -47. 21. When any proved nomatter I i « - :; jhl or inconclusive, from which a delivery may be iuferred, the p irty relying upon them has a right to have them submitted to a jury. ibid. 22. Where a deed, by a hsisband for a slave, was signed and sealed, but not delivered, in the presence of the subscribing witness, bu1 was afterwards delivered by the husband to his wife for the benefii of the grantee; it was held first, that the ry was good and enured to the benefit of the grantee mi. secondly, I Pearson, .1. dissentiente,) that when the deed was signed, sealed ami attested by a subscribing witness, a delivery not in the presence of the attesting witness, might be proved by a. third person, s< as to saiisiy the requisitions of our statuti relating to tie tram for of slaves. Gaskitt v. King, 12 lred., 211 23. Tli' 1 date ol a deed or other writing is prima facie evidence nf the- time ,,t its execution, upon the principle" that the acts of every person, in transacting business are presumed to be coo- ,324 DEED.— 1 -sisteut with truth, in the absence of auy motive for falsehood Li/rvhj v. Wheeler, 12 Ired., 290. 24. Where a deei 1 is delivered to a third persi in, in the al iscnee of the grantee, the latter is presumed to accept it, and it tjprth- with becomes effectual to pass the property included in it. QlcLean v. Nelson, 1 Jones, 396. 25. To constitute a deed, the pa 1 7 executing it must accom- pany the acts of signing, sealing and delivering with the inten- tion of mal ' ' deed. Hi ace, w\v v ■ a per on being drunk, and receiving a siun of money, e 1 teds bond instead of a receiptfo] oient was null and void. Hyman v. tl6. 26. A deed in trust was made to on« who had no knowledge of its excution at the time, bu afterwards, on being in- formed of the fact b) the draftsman of the deed, assented to it, agreed to act as truste . ' an agent to get po&- session of the properly, who had the deed proved and regis- tered, and 00. led as agent to demand and sue forth irpp- erty, and it was held, that the deed was duly delivered, though it had never been actually in the hands of the bargainee. Green v. Kornegay, 4 Jones, 66. ,-,,.■•, 27. Thedateof a deed, which isprovedto have been delivered, \s prima facii ~ ■ ' ice hat it was executed on the day of the date; but where it is proved that it was signed and sealed, but not ,j, [ivered on that day, it lias no operation as a deed, until such time as it is shown to have been delivered, and until such time, any declaration made byth grantor, affecting the title, is evidence . Inst a person claiming under him. Ntwlin v. Osborne, 4 Jones, 157. 28. Where the donor, in a deed of gift for slaves, took it to court, acknowledged il and had it registered; it was held to be a good delivery of the de I, and that a written declaration en- dorsed thereon afterwards, that it had not been .delivered and Avas not to have an; feet, could not invalidate it. Airey v. :> Jones, 142. ..,.-, , , . x , ,, ■ , 211. Where the donor in a deed of gift handed it to a third person, signed and sealed, to have it proved and registered, without retaining any authority to control it, and when it was returned to the donor he delivered it 111 like manner and for a like purpose, to another 1 erson, who neglected to have it proved and registered until after the donor's death; it was held, that the handing the deed to the first person was a complete delivery, so that it. operated from that time. Phillips v. Hoiwkm, 5 Jonee, 302. 30. Where the maker of a deed of gift handed it to a stranger, with' instruction to hold it until he called for it, and died with- out ever having called for it, it was held that there was no de- livery of the deed. Bailey V, Bailey, 7 Jones, 44. DEED.— I.-II.-IIL 325 31. Where there is a L doubt whether a subscribing wit- ness to an instrument signed before the grantor, it was held, in the absence of proof to the contrary, that the presumption was that the donor signed it first. Hughes v. Debnam, 8 Jones, 127. 32. A square piece 6f paper, affixed with a wafer to an instru- ment, opposite to the name of the grantor, in the place where the seal is usually placed, will, in the absence of proof that fehe grantor intended otherwise, be valid as a seal: Ibid. See (Evidence — Parol evidence, when admissible 33—15.) (Registration, 1-14-23-27-29-33-37 ) U. OF TIIE PARTIES fo A DEED, AND THE CUSTODY THE 1. If one encourage the making he is bound by it though it sh aw; , his own property Hayx. Spiller, 2 Hay.. 155, i 2. The assent of | d in his tavor. Pea.rsex.Ou , '. ' 3. Where land is s< >ld witho . ith Warranty only against the grant i I eirs, the pi ill.have all . he may the bet- ad it himself. B mi warranty and to render in value, he i title at his peril. ; I I leeds that com- d warrant y, advanti Nic, 'onv. ttlliard, 2 Murph.; 4. L<< make ad mail i r.) as well as tl [easl such - [red., 277. i 21.) III. OF THE . '.TIOX. 1. A deed which is iii form a bargain .i."' 1 pt that the consideration is exj ed to be love | of moi - construed to be a coa enant Slad : mith, 1 Hay., - 2. Ad ot operate i a bargain and sale, unless it has api iniary consideration; noi ant tand seized to iless the consideration be love and affection for a near relation, or marriage. Affection forai illegitimate child is not a- s sufficient consideration. Blount v Blount -J Car. L. H. 587, i 3. Where a deed for land contains an acknowledgment by the bargainor of the receipt of tin- consideration, and a elan.se exon- erating the bargainee therefrom, it amounts to a release and is a bar to an action for the purchase ateney. Brt ■ bet V. Fostue, 1 Hawks. 64 326 DEED.— III.— IV. 4. A bargain and sale is good, although the deed does not express that the consideration money has been paid. Ibid. 5. A pecuniary consideration, mentioned in the first part of a deed of bargain and sale, extends to any land conveyed in the deed, to the person who paid that consideration. Jones v. Rvffin, 3 Dev., 404 (3. A consideration of blood, appearing upon a deed inopera- tive as a bargain and sale, will make it enure as a covenant to stand seized. Hatch v. Thompson, 3 Dev. 411. 7. Where a specific c msideratiQn is se1 forth in a convej and no others are referred to in general terms, ik ther ifa, the specific one can be averred an I proved. But if one consid- eration be specified, and ethers referred to in general terms, i. is competent to show them in evidence; guicl where the deed is wholly silent as to the consideration, proof of the actual consideration is admissible. Jones v. Sasser, 1 Dev. tnd Bat., 452. 8. Where one consideration is mention dothers referred 'to, the latter, though not specified, may be proved by parol. Ghesson v. Pettijohn, 6 [red. 121. See (Deed D ed in trust, 14.) (Evidence — Parol evi when admissible, 15-20-23.) J OF THE PRESUMPTION OF A DEED. 1. Where a mother and her illegitimate children reei led upon different parts < f J. i same trad of land, the latter under a pare; agreement for a conveyance from their mother, subject t<> a life cstalc in her, (heir respective possessions are consistent with her title, ami however long continn d, no presumption of a deed arises from them. Matthews v. Smith, 2 Dev. and Bat, 287. 2. Any disability in the owner is a circu nstance to repel th< presumption arising from lone,- continued possession, although such disability may have arisen since the commencement of the possession. Ibid. 3. A presumption of a deed, arising from twenty yi ars adverse possession, will not be rebutted by the fact of the heir's being under disability at the depth of the ancestor, where such lapse of time had begun to run against the ancestor in his life time. Seaivell v. Bunch, <> Jones, 195. 4. Twenty-one years continued possession of land, the title to which is shown to be out of the State, claimed by the posses sor under an alleged purchase from a former owner, though he is unable to produce a deed from such owner, creates a presump- tion of a deed to such possessor for the land, against any and all persons. Fireman v. Loll in. 6 Jones, 524. See (Evidence— Presumptions, H-12-19-2%26-27-30.) (Grant- Of the presumption of a grant, 9-10.) (Trespass — Of £.r,espags qimre clausum fnegit, 46.) DEED.— V, 327 V. OF THE OPEKATION OF A DEED, AND WHEN IT MAT BE AVOIDED. 1. That the bond was given to release the son of the principal obligor, from duresSj is no defence for the other obligor, who exe- cuted the deed as a surety. jQwoere by Haywood. Svmms v. Bar- foot, 2 Hay., 402, (606.) 2. Ad deed, in itself invalid and inoperative, is rendered valid by Registration. Stanly v. Smith, 1 Car. I.. I!.. 511, (l-'4.) 3. Any alteration of ;i deed or writing, if made by the party claiming benefit nnder il. avoids it. whether the alteration be in ■ material or obligatory part, or in an immaterial and useless part, provided it were (lone with design. Nunnery v. Cotton, 1 Hawks, -2-22. 4. A deed altered after its execution is good, if the alteration lie made with theknowl dgi andconsei i of the grantor, and the Itered need not he registered to make it color of titl . for an unn d is color of title. Campbell v. McAvtlier, 2 Hawks. .",;;. 5. An alteration in a deed, as in a bond, which is prejudicial to tin' obligee as where the date was alter d s< as to deprive him of i i interest, must be presia ied b; I tjurytohave : ion. Tullen v. Shaw, 3 Dev., 238. 6. 'U hen a deed was proved, but before its registration the boundaries of another trai t were inserted in it. it was h& evidence of that fact did not impeach the deed, but that as to the tract, the boundaries of which were inserted after probate, the deed was unregistered. McLendonv. Winfree, 3 Dev, 262. 7. Y\ here one is ousted and afterwards enters and seals a di ed upon the land, the entry determines the estate of the dis and the deed is operative. Bui if he be ousted of separate parts of the land by two trespassers, and mak is a deed for the whole to one oi them, it does not convey the land held by the oilier. v. Burnett. 1 Dev. and Bat., 54(1. |S - Fraud in he execution of a deed will avoid it at law. v i 'ar • 2 I lev. and Bat,, 530. '•*. ihe party signing a deed or instrument, or any person claiming under him, may show that at the time such deed oi instrumehl was signed, he was of insane mind: the old doctrine that a «nan ca Itify himself having been long exploded. Bdllew v. Clark, 2 Ired., 23. In. Sanity is presumed primafai it, and, tin- party, who alleges iiisauife to avoid a deed, must prove it, but if a general mental deraogemenl or lunacy is shown, previous to the execution of the instrument, the burthen of proof as to the sanity of the per- son executing the instrument at the time of its execution, is thrown upon the person offering the instrument in evidence, Ibid. 11- ^Improper Jaaftuence" constitutes no legal objection to the 328 DEED.— V. -VI. validity of a deed, but only furnishes a ground for the interpo- sition of a court of equity. Clary v. Clary, 2 Ired., 78. 12. The mental capacity, sufficient to enable a party to execute a deed, is that he shall be able to understand what he is about, and not that lie shall have capacity to manage his business with "judgment and discernment. " Moffit v. Withersjpoon, 10 Ired., 185. 13. If a conveyance of land be made to A and B, and the deed be delivered to A without the knowledge of B, and he upon in- formation thereof from A, dissents therefrom, the deed is a roided as to him and nothing passes to him by it. But whethei the whole vests in A, or the deed is inoperative as to a moiety, quaere. Baxter v. Baxter, Busb. 341. See (Deed — Of the construction of deeds and their vari©HB parts, 18.) VI. OF THE CONSTRUCTION OF DEEDS AND THEIR VARIOUS TARTS. 1. Where a deed conveyed the whole estate absolutely to the bargainee, but in bl es, though net in the habendum, there was a i ! .. grantor's life time in any part or parcel of the I i held, that the fee passed immediately to the grantee and bl ttion was \ id. Ward v. Ward, Man,. 28, (18.) (Seems to have been overruled by Sasser v. Blythe, 1 Hay., 259, (299) and Smith v. Grady, 2 Dev., 395.) 2. A, seized in fee of the premises in question, executed a deed to his son, in which he stated that, "for the | I of his I the land to him and his heirs forever, "pro- vided that this deed should not take effect during the lives of the grantor and his wife, but the pr< mises should remain first to him for his natural life, and thi n to In r for her life," held, that jfche last claus fthed d wa ■ ■ servation of life estates, and that the fee is a good remainder 'upon ter v Btythe, 1 Hay., 359, (299.) .".. A deed, made since the statute of uses, is not to be constru- ed by the samerulee of interpretation, as were applied to deeds befi re that statute. Therefore, it' a. deed give an estate to a wo- man during her life or widowhood, it determines by her mar- riage. Pe>rsev. Owem, 2 Hay, 234, (415.) 4. A deed purporting to-, convey all the lands the bargainor then had, and all he should subsequently acquire, can only operate en all the lands he then had, and lands subsequently ac- quired do not pass under it. Arrington v. Arrmgton, 2 <3ar. L. ];., 253, (232.) 5. A deed, after describing a ttaet of land conveyed by it-, ad- ded, "one-half: acre ofland.whera my grave yard is, &c, is ex.-- DEED.— V. 329 cepted. Together with forty-five acres, &c. ; also another tract containing fifty acres," &c. The exception extends only to the grave van!, and the two last tracts are granted. Jordan v. Hd- hweU. K C:T. R. 173. (605.) 6. The recital in a deed is not an essential part of it. its use being to explain more fully theobject of the parties. It affirms no fact andcannol operate as an estoppel;and if the recital be er- roneous, it will not affect the operation of the deed. Hah D to; 3 Murph, 260. 7. Where .V conveyed a slave to B, ami on the by a' deed, declared thai ""he put the in the poss< ion of A, and did give ami grant the sei le said slave to A. during her natural life, free irom any charge or claim for such gervices during her natural life," it this did not operate to convey the title to the negroto A. but parted with the possession only, withoul compensation for his services. S 8. Where there is a full and i of the thing to be c ■ part, of the deed I part one less full and clear, which c; ith the first, the weaker shall give be i ntirely i 9; Where land wis a uveyed toone by his i ■■< \ after- iety of it d vised to h deed th f 1 - ■iv of the lands, Ilrid. 10. Where a pej son, for a \ r the I : .i gain and sale land, reserving to one of his own sons a life i , ; . i - life estate under the i v. 6 - 395. 11. Th rd "heirs" is absolute!; both in deeds at common law, an 1 in th e op> rating under the 'mi 1 a life estate is I into a tee either by a c • ojoyment to the id his heirs. Roberts v. Forsylhe, 3 Dev., 26. 12. A deed to tb ■ children of one, reserving to him the use and i qi B.1 of the land, vests in him an estate for life. Hatchv. j m, 3 Dev., 411. 13. Where an informal deed conveyed to A a n< gro woman and her issue, except I wo children which were givi n to B, and thenad- dedas follows: '"I also give.to my daughter, B, a negro man named, &c, to her, &c, to have, after my death, and to hold all the said. &c, to them fche said. A and B, their heir,-. &c, from hi nce- forth. as their property absolutely, without any manner of condi- tion," it was held that, the reservation of the life interest applied only to the negro-man given to B, notwithstanding the addition 330 DEED.— V. of a clause, that if A should die without issue the property should revert to the donor. Branch v. Byrd, 4 Dev., 142. 14. The appointment of a guardian to a donee does not give a testamentary character to a deed nt' gift. Nor does the reser- vation to the donor of a life estate in a slave. Ibid. 15. If the description in a deed be so vague or contradictory that it cannot be ascertained what thine,' in particular is meant, the deed is void. But different d< cripl rill be reconciled if' possible, or if irreeoncilabli ie of them point to the thing with certainty, a false or mistaken reference to another ■ •til not avoid it. Pro-tor v. Pool, 4 Dev., 370. Ill Quantity is not generally descriptive, but it may be so, as ■;■ son own ton lots, i me of half an acre, and the other of an t,nd granl his "acre lot," the larger lot will pass, though a few feet more or less th; n an acre. Ibid. 17. No positive rule can be laid down, for ascertaining the in- tention of the maker of a di id, n- other instrument, as to the subject matter of con ^ yance. But his intention i i : collected • n the whole instrumenl taken together. Ibid. 18. W hether an instrumenl I i a de< I or no; is a question for th m t, bu1 whethi r t1 ha-, been c SicelL ■! or nol - a question lie jury. Norton. . \ subject matter of a conveyance is completely identified by its name, its localities and by certain other marks :ription, the addition of another partieular, which doesnot apply to it, or to any thine; else, will nut a \ dd the conveyance, hut will be rejected, as having been insert* d through misappre- hen ion or inadvertence. BelJcv. Love, 1 Dev. ami Bat., 65. 20. General words-in a deed, as "my estate," or "my property," or "all the property I possess," do not pass, or profess to pass any thing which was not held by the grantor as his own prop- erty, although la' tnighl have the possession. The courl cannot assume as a. fact that prbperty, the title to whielj is in one i i session in another, is held adversely, and, upon the faith of that fact, declare the property to he included in a, general description used by the person in t, of "all my property." Jonesv. Sasser, 1 Dev. and Bat, t5#. 21. Any inaccuracy or deficiency, in the description contained i d, may be corrected or supplied by arefere ice to another deed, if the deed referred to contains a im re particular and cer- tain description of the land intended to b< conveyed. Thus, it to the description by courses and distances in a deed, be added the further description "containing .'i<>n acres sold by Jacob Mc- Lindonto Isaac Suwell," the courses and distance's shall he con- trolled, if necessary, by the description in the deed, given for the land by McLindon to Sawell. lUUrrx. BarnttA 1 >ev. andBat., 133 22. Where a debtor eonveyed property in trust to secure the payment of certain debts, anil among others, "a note for $500 DEED.— V. 331 payable to J. \V., and by him transferred to K. D.," the trustee and proceeded to direct that "the l>alance of the money, if any, after paying the debts in this deed, the said R, D. is to pay" to the grantor, and the trustee sold the property, and received the proceeds sufficient to pay the debts mentioned Lathe deed in trust, it was held, that in a suit by 11. I>. against J. W., as en- dorser upon a note for $430 made by the debtor, the jury were not at liberty to infer without any extrinsic evidence, that there wasbul one note to which these persi me re parties, andtb ribed in the deed by mistak :; and that no evidence could be received at la\ to mistake. Dkmukes v. JVrigJtf, 4 Dev. and B; 23. tn the construction of d Is I e first nil is, that the in- tention of the parties is. if possible, to be su] ad the rule is, that this intention is to be ascertai I by the deed itself, that is, from all the parts of it taken Ibid. 24. Omissions in a deed cannot lie supplied from arbitrary though founded upon the highest degree of proba- bility. Ibid. nrveySj which are referred to in deed of veyance whether annexed to the deed mechanically or not, be- come incorporated as part of them. But whether such map or could be read in evidence, when not registered with the deed, qucere. Hams v. MadweU, ! Dev. and Bat., 241. le id, wherein the grantor, in consideration of the sum I >lla rs paid by the grantees, " remised, released and quit claim" to tkem certain land, may operate as a deed of bargain and sale, to pass the title to the grantei s, if il ca o] erate as ■ w.mi of some interest in them. Bronsonv. Paynter, 4 Dev. and Bat, 393 il. Where the who! ■ inten st in property is conveyed to one misi s of a deed, 1ml in the habendum is limited . . the?,.- the latter is repugnant to the former and void, and is vQt ed in the grantee named in the premises, who may consequently maintain an action for it in his own name. Huffier v. Irwin, 4 Dev. and Bat. 433. 28. If the name of a grantee appear first in tl m of a de il will be good, provided there \vas not another grantee named in the premises; or, if there were, provided the estate given by the habendum to the new grantee was not immediate, but by way of remainder. Ibid. 29. V* here ina deed of covenant to stand seized, from an i node ■Xo his nephew. T. S., the donor used these words: "1 give and grant, alter the decease of my wife, two tracts of land, lying, &c, to be possessed by him in fee simple, after the decease of my raid wife, upon condition that he, the said T. S., shall then, im- mediately, or as soon after a reasonable time as may be, .settle the same, and continue on the said premises during his natural 332 DEED.— V. life, so that the said premises shall not be sold or alienated dur- ing the life time of him, the saidT. S. Also, I give and grant to my said nephew, T. S., one negro fellow named H., to him Ins heirs and assigns for ever;" it'ioas held, that the words "to him, his heirs and assigns forever," applied only to the limita- tion of the slave, and that the nephew took but a life estate in the lands, for want of the words of inheritance, "to him and his heirs." Wiggs ^.-Sanders, 4 Dev. and Bat., 480. 30. By a proper reference from one deed to another, the des- cription in the latter may be consider! d as incorporated in the former and both be read as one instruifaent, for the purpose of identifying the thing intended to be conveyed. But there must be no inconsistency between the calls of the latter di d and the former deed or ."'rant: as for instance, where the former deed or 'grant calls for a line of another patent, and the latter deed omits that call, but goes for a particular course and distance, and only profes ■ to ci y a pari i ' the tract, embraced bythegr it or former conveyance. In such a case the course and distance called for, being the specified description in the deed, must pro- vail. Tho i Lin d., 252. 31. ii ie construction of a" deed that a per- fect description, which fully ascertains theeo . 'be de- feated by a further and I ription. But the c url has no right to strike out om part of the d more than another, unless the part retained compli tely fits the subject claime I, and the rejected pari does not and imle: s, further, ii appeal that the whole description, in I ught to"be rejected, /..'.; cab other thing. It musl be shown, a1 leasf to the" degree of moral probability, that there i ; that will an- swer the description in every particular. Mayo v. Blount, 1 Ired., 283. 32. If the words in a deed f il of oods and chattels plainly evideni nt without technical words. Such a deed of sale may be made withouf anywords of "bargain and sale, as well as with those word's: Fortescue v. Sat* , I Ired., 566. 33. E. S. was entitled to two tracts of land, an upper and lower, and the water from the former was drained off by ditches through the latter. By deed bearing date the 12th May, 1797, he conveyed to his son, j. S., the lower tract, "a privilege of two leading ditches to T. S. (another son) cx< epted," and by deed lated the 13th* May, 1797, he conveyed to the said T. S. the upper tract, but without saying any thing of the privilege of those ditches, // was held, that, -'"wen admitting the words in the deed to J. S. to have amounted to a grant of the privilege to T. $., still there is nothing to annex that grant to the upper tract of land, so as to transmit it to an assignee.' JSpencePVi Spencer, 2 Ired, 96. DEER— V. 333 34. Every deed of conveyance of land -must set forth a subject matter, either eertain in itself or capable of being reduced to a certainty, by reference to Bomethmg extrinsic to which the deed refers Massey v. BeUslq, 2 Ired., 170. 35. A deed for a feraal .1 "ber it .i only ■ the woman and her issue bora after the execution of tbe deed." Morrow v. Alexander^ - [red. 3<>. Where, in a deed for land, a I ttioned in 1 % it cannot be enlarged into a fee, either by a warranty in i mt for quiet enjoyment, to the grantee and his heirs. SneU v. Toting, 3 Ired.. MT'J. 37. A by deed conveyed to Ba negro woman, in exchai a negro boy, with this condition m the i convey their right derived from their ei to A, and if they did net. each party was to resume the right to his ■ it washeld, that before B's heirs refui ed to make this con- veyance of their right, the right of B t< the negro woman was not divested out of, hut remained in him. Walker v. Seed, 4 Ired., 152. 38. Where the grantor of a tract of land reserved, to himself and bis heirs, "all the saw mill ti land standing or being, or which may hereafter stand or he, on the said land or any part thereof;" I that the grantor and hi ily a right to the saw mill timber then on the land such trees as miglrl thereafter become fit for saw mill timber, when th sy became so iit. but that they had no rigbl to prevent the grantee of the' land from cutting down pine saplins, thongh t undisturbed, have become saw mill timber at some future time. Robinson v. Gee, 4 Ired., 186. 39. A deed un can eonvey no title to land, unless a good or a valuable c ion is expn the face of it, or if not so expn ■■ d, can I e. Con T veyances at common law, which < [trans- mutation of Jims- ivired ao consideration to I them; but those under the statute are void without a c< nsideration, because the statute only converts into i tte the use, which was before an equitable interest: and equity would en- fore' ■ no use, where there was not a good or a valuable consid- eration tn support it. Springs v. Hawks, 5 Ired., 30. 4u. Where an -indenture made between J. L'., and J. S„ wife nesseth that I, the said J. 11, have this day sold a certain tract of land lying, &c, for and in consideration of, &c, to me in hand paid by the said J. S, the right and title of the above de- scribed land I will forever warrant and defend, from me, my heirs and every of them, and every other person lawfully claiming unto J. S„ his heirs and assigns forever; to have and to hold with all its profits and advantages appertaining," it icas held, that the 334 DEED.— V. deed, though informal, was sufficient to convey the fee simple to J. S. Armfeld v. Walker, . r > [red., 580. 41. A person may, by deed, covenant to stand seized to the use of another infuturo, as for instance alter his death Daven- l<>,,i v. Wynne, 6 Ired., 128. 42. A, by deed poll, in consideration of love and affection, conveyed to his smi Hand grandson C certain lands, wit lithe usual habendum andtenendum clause: then follow these words "andfur- thermore, we, the said B and < '. their heirs and assigns, are not to interrupt the said A during his lifetime, on the said premises, by them terms I have hereunto se1 my hand and seal. &c," it was held that this was a cox enant l >y A, for himself* and his heirs, td stand seized to the use of V> and C and their heirs, on his death. Ibid. 4.">. A deed conveying a storehouse wherein A B had a store, now occupied by him asa [iostoffice, with the outhouse and office adjoining, conveys also the lot on which the hauses stand, there being nothing in the oth i part of the deed to control i Bcription and exclude the l< t. Wise v. Wheeler, 6 Ired., l!l(j. 44. Where one conveyed by deed, in consideration of natural love and affection, land to his'son B, "to have and to hold, it c, unto the said B his natural life ofily, and then to return to the m i child or children of the said ' :., "and covenanted with tl I B and his lawfully begotten male heirs, thai he, the said B, arid his heirs as aforesaid, &c, shall and may lawfully, peaci b] ■ have, hold, &'c, it was held that this was a covenanf bythe donor tn stand seized tu the use of B for his life, and for any son or smis of his after his death: that, il B Kad a son born at the time the deed was executed, the remaindei "was then vested in him; if horn afterwards, the seizin reman ikg in the covenantor was sufficienl to feed the contingent use *hen it came w esse, and enabled th i statute of uses to transfei the equitable use into a legal estate in fee in remainder, B having had a son who sur- vived him. Borden v. Thomas, ii Ired.; 209. to. A deed, alter recitin > a sale of laud by execution, pro- ceeded thus, "in consideration, &c, the said P. 1!. sheriff, &c, doth hereby bargain, sell and confirm >«ilf, the said J. T. B., &c, their heirs, assigns, M., to have and hold the same to the said J. T. P>., &c, their heirs and assigns;' it was held that the i the word " with " did not affect the sense or operation of* the instrument, as upon the context, it was evident between or with whom the contract was. and by and to whom the estate was conveyed. Broolcsv. Ratdiff, 11 Ired., 321. 46. What the descriptiocrin a deed fur land means, or whether it convevs any definite idea, are questions for the court, and ought not to be left to the jury. And where the description is too vasrue and' uncertain hi the court to ascertain itsmeaniag, DEED.— Y. 335 the deed will not pass any thing. Edmundson v. Hooks, 11 Ired., 373. 47. A, having- a life estate in two negroes, executed an instru- ment, attesti >!. sealed and delivered, in which was the expres- sion, "which right -and title 1 relinquish to B for value received;" it was held that if this were not i:;^ <\ as a release techni ■■ally, it was good as a bill of sale or deed of gift. McAllister v. McAllister, 12 Ired., 184. 48. However nntechnical and ungrammatical a deed i lay be, yet it will be valid, if its words declare sufficiently and legally the party',-- intention. Therefore, where by a very informal deed A. "in com ideration of good will and affection tor his son-indaw, H," gave certain slaves, and then followed this clause, "I also appoint II agent of the following property, to wit. &c, and the following tracts of land, &c, tobe to the use and benefit of my daughter < !," who was the wife of II: it was held that, the inten- tion to 1 to the daughter being plain, the deed i operate as a covenant to stand sei i i '. eithei tb the use of H as trustee for C, or to the use of G ; and tie via, the titl passed from A, and hi ill not recover in ejectmenl against I!. Cobb v. B b ■ 49. In a de i I of bargain and \1< . the bargainor covena ned vt' a g I. &c, estate," &c, and if was held aid in 'l by constru :tion substitute "seized" f ■ "signed," so as to make makel ent ace intelligible and 0] er- . ,. 50. An exception in a de< cl "of all the pme timber that will square one fo t," to the vendors, "theirheirs and assigns fi ■< with the privilege of cutting and carrying away said timber al any time that it may b to the vendors, their and assigns," only embra • o that size at the dal it such as attained to it after- wards. Win ■ I v. Smith, 2 • . 51. V\ here il appears tl i there are pine trees lit for making turpentine, which are no1 tit for tun timber, an exception of tun timber i i a di I . given for the declaim d purposi i I e, is not inconsistent with The granting part of od. Grio. v. Wrifjht, t Jones, 184. 52. Where the metes and bounds, given in a deed, leek in a mill house and half of the mill dam and pond, and then were added these words, "also all my mill on the safid ci-eek tobe 1 to the above mentioned tract;" it was held that the soil of the dam and mill pond, outside of the nn tes and hounds, di i nol pass by the deed, but that an easement tb use the dam and pond, as an incident to the mill, did pass. Whitehead v Garris, 3 Jones, 171. 53. A lif -taie. conveyed in the premises and habendum of a deed, cannot be enlarged into a fee by words of inheritance 33G DEED.— V. .eotttained 'in the warranty or covenant for quiet enjoyment 'Begistt r v. Howell, 3 Jones, 312. 54 A description in a deed "of a piece of the A. M. tract of 'land, that belongs to the hi irs of Z. P., lying and being in the connty of Macon, on Ella Joy . Where* land was granted, with the reservation to the grantor of a certain space out of the land described, for an ave- nue, winch had been before used for the same purpose, it was held, thai the Legal effect of the dei d was to grant the soil, sub- ject to an easement in the grantor for his avenue. Hays v. Ash 10, 5 Jones, 63. 57. Where A, supposing he had only a life estate in a female slave and her two children, but in fact lie owned the entire pro- perty, in the slavei made a deed to his brother 15, reciting that lie owned such life interest, and had procured it from B, and added, "winch right and title I relinquish to him (the said B, ) and -'her two childn n Valentine and Caroline also;" it was held, that only a life > state in the slaves passed by the deed. McAlis- ter v. Holt m, 6 Jon s, 331. 58. Where a dei d purported to convey all the grantor's prop- erty "except such part as the law allows poor debtors," it was held, that property exempt from execution under the Rev. Code, eh. 45, see. 7, was excepted from the operation oi the deed, but not such as might have been, but had not been, set apart for the grantor, under the 8th and 9th sections of the act. Massey v. Warren, 7 Jones, 143. 59. Where the owner of a tract of land, having a mill on it, sold a part of the land including the mill, it was held, that the deed conveyed to the purchaser an easement on the lands reserved, entitling him to overflow them by a pond to the same extent as they were overflowed at the time of his purchase; and that if the owner of the reserved lands complained that the dam had been since, raised, he was bound to show it. K-estler v. Ver- ble, 7 Jones, 185. CO. A deed conveying a tract of land contained the words, DEED.— Y.-VI. 337 "C's luili Beat I," and i! was held, that the exception did not embrace the soil of the mill pond, but only an easement for ponding the water upon it. Everett v. Dockery, 7 Jones, 390. 61. A description in a deed of "my house and lot in the town of J., in A. county, North Carolina," where the grantor had but one house and lot in that town, was held, to be sufficiently defin* |te to pass them. I Ray, 7 Jones, 609. Si e (Ferry and Toll bridge, 9.) VI. OF DEEDS IX TRUST. 1, A trust may l>r created for the benefit of creditors by a ■ f which they are ignorant, and their assent to it may be presumed; y t, where the Trust is created upon the express con- dition that they shall execute the deed by a certain day, and thereupon certain obligations are imposed on them, they cannot incur the obligations, without a performance of the condition. If the creditors, in such a case, never sign the deed, the trust, if : at all, will be for the benefit ofthe bargainor, and is such an interest as may be reached by execution, under the act of 1812. Moore v. McDuffy, 3 Hawks, 578. (See Rev. Code, eh 45, see. 4. ) 2. It seems thai a deed in trust, made after the passage of the act of 1820, and before the 1st day of June, 1821, need not be red within six months; but deeds of trust ofthatdate are, :ed upon the footing of mortgages, in res] t to ere liters and purchasers, so far as to except them out of the oper- ation of ill" usual aets, extending the time for the registration of i c. Ridley v. Mb Gehee, 2 Dev., 40. (See Rev. Code, ch. 37, see. 22 and 23. I _ ?.. Where a deed of trust was proved within the prescribed time, and an entry made by the clerk of the probate i ml order i itration, but the I ing p id, the clerk informed ! it, that it should not be registered, and . it was held, that while the entry remain- ed, parol evidence was n it admissible to contradict it, and that , in not handing it to the register, did not vendee. Ibid. ■h v ' din trust was duly proved, but by reason of the death ofthe n I the neglect of the county court to appointa su - not registered within six months, but gistered as soon as a successor was appointed, it was held, that the deed was available, as if duly registered. Moore v. Col- lins, 3 Dev., 126. (Overruled by S. C. in 4 Dev.. 384.) 5. Where a deed of trust was duly proved and delivered to the register within six weeks after its probate, but because of the sickness and death of the register was not registered within six months, but was registered as soon as a successor was ap- 22 t 338 DEED.— Yl. pointed. // was held to be void as to the creditors of the bargainor. Moore v. Coffins, 4 Dev., 384. li. Where a creditor, knowing that another creditor has taken a deed of trust, which is not registered, takes another deed of trusl on the same property to secure his ownddbt, and procures it to be first registered, this is ao fraud on any person, at leapt at law; more especially is it not a fraud against those who do not claim under the creditor secured by the first deed. Burgin v. Burg-iHtl Ired., 453. 7. 11 is no ground for the court to pronounce a deed in trust Iraudulent, per se, as against other creditors, thai the property conveyed wa rivate sale, or that the surplus, after payment of the di I d, was to be return, t] to the bar- gainor, or thai the property conveyed is greater in value than the debts sec :es to be submitted to a jury, to aid thei ' whether the intention of the parties was / / bid. 8. Neither .villa" selling under a deed in trust, which was bonafi ''■'■'■ '• the delay and the u of the property, I r, were such as to give him i credit, and h e world a of the prop- erty. Ibid. 9. Though a of this State, by a deed of trust, to convey all his property for the purpose of pay- ing cea tain cred ts in . y I there musl be no condition, direct or indi] oiling this application. Hefner v. Erwin, I [red 10. Such a deed must 1 d for the purpose il prol to have in view, and any provision by which a sale under it is unreasoj ably postponed, or by which the debtor is to obtain a benefit for himself or iamily, or any agreement by which the transaction is to b I >p1 - ■.<■!, until the debtor has an oppor- tunity of getting beyond the reach oi proi ss issued by his other creditors, or by which tb not to be registered until the other creditors sue, or threaten I > sue, will maketta deed Iraud- ulent, because it shows that one-objeel of the deed was to hinder, defeat or defraud some creditors. Ibid. 11. If only a part of the conside ation of a di ed it- fraudulent against creditors, the wholi ! raid. Ibid. 12. Where cue had a deed in trust forperson I rty other than slaves, to secure a debt, and he admitted : debt to have been paid, and permitted the person who gavi ' I to keep possession of the prop< t'ty, and si i up uo clai i I it. il was held that the title to the property revested in the person who had conveyed it in tiust, withoul any formal reconveyance. Alex L ander v. Springs, 5 ln-d., 475. 13. The endorsement by a trustee on a deed, made in trust &o swure debts, "that he had sold (a certain slave) and satisfied DEED.— VI.— DEMAND. 339 the claims mentioned in the within deed and retained a balance of $ — in my hands" does not purport to be, or amount to, a conveyance by him, but only shows that he no longer held the title for the creditors secured in the deed, as one of the trusts on which lie took it originally, but only for the maker of the deed, or for such persons, as might 1"- entitled through him, either by contract or act of law. Thompson v. Ford, 7 Itvil. 418. 14. A deed of trust for land, which has no consideration ex cept that the land should be sold for the payment of djgbts, for which the bargainee was bound as surety, will not operate as a .if bargain ami .-ale Jackson v. Hampton, s [red., 457. l.'i. A conveyed to-B a tract oi laud, 'together witb horses, tattle, &c, and all crops on the ground," in trust to sell for the :nt of debts. At the date of the deed there was a corn erop on the it it was e. rv irds .1 $1 roj i d by a frost, and a new crop was planted by A, who had been permi remain in possession. Afterwards* seized this nev crop and irtsd it to his own use; and it was lield, that B was entitled • 3ui l new c and ci ul I n over its value in an action of .-. Black v. Eason, 10 Ifed., 308. lii. Where i deed of trust is giv - curity of several ■ . 1 si mi I <• with usury, • ill as to bo 'e 1 thi se debts in' separati d unconnected with the usurious debts. Rrannock v. Brannock, 10 [red., 428. 17. Whether a trustee ha undertaken the burden of execu- ting the trust is not a question thai i i calid execu- leed of trust, but can only be raised in a court oi equity b] thi < titi que trust, after its due execution is.estab lished at law. McLean v. Nelson, 1 Jones, 3! ; Si e (Deed—* H u a and date of a - (Deed — 'it' thi construction of deeds and their various parts, u 22. ) (Fraud — Conveyances, agreements, &c, fraudulent as to credi- tors, 20-21-25-47-50 62 63 64 67-75-77-86-94-95-96.) (Fraud ■ — Conveyances fraudulent as to subsequent purchasers, 18.) (Hu band and Wife — Of marriage settlements and agreements, :;. ) (Registration, 7-8-11-12-13-14-15-16-17-18- 19-24-32-34.) (Usury — What transactions are usurious, 15-19-20.) (Widow— Of her dower. 9-17-21.) DEMAND. 1. Where one has a cause of action against another, accruing after a demand made, the siiin^- out of a writ for that cause of 340 DEMAND.— DEMURRAGE.— DESCENT. — . action though the writ was in assumpsit when it should have been in covenant, is a denial id in the strongest form. Nixon v. Long.. 11 Ired., 428. See (Contract— Construction of contracts .and when an action will lie, 2-20.) (Detinue— When a demand is necessary.) (Evidence — Subscribing witness — Proof of handwriting, 33.) demurpwY(;e. See (Vessel, 10.) DESCENT. lit. Rules of 'I' 1 :i .: before the act of IV. Rules of. descent under, and j-ince, I. Whether one lakes by descent as heir, or by purchase. II. Where the claim is through an alien. i the act of 1808. 1. WHETHER ONE CAKES B DESCEK1 IS HEIR, OE BY PURCHASE. 1. When a person seized in iee, b 'fact 1784, devised lands to one in tail, who was hi ' atlaw,he bypurchase; and when the act changed the e te tail into an estah in fee he still held by purchase; and the descent from him was as from a purchaser, and no1 as one who took the estate by descent. 'v. Griffin, 2 Car. 1, R, 258, (237.) _'. When one has the same estate given him by will, as he would have taken had the devisor died intestate, he shall take by descent; thus where a devisor gives his land to his two dan-liters in fee, to he equallj di\id. d between them, (they being his only children^) they take as tenants in common, as they would have done had he died intestate; and upon the death of both the daughters intestate and without issue, their mother took an estate fi'ir life un ler the act of 1784. University v. Hdstead, -2 ( !ar. L. R., 406, (289.) 3. Where A, having several tracts of land, devises one tract fee to B, who is one of his heirs, and another tract to C, who DESCENT.— T.-1I.-III. 341 is another heir, each takes hy devise and not by descent. Rai- ford v. Peden 10 Ired., 466. See (Tenants in common, 31.) II. WHERE THE CLAIM IS THROUGH AN ALIEN - . 1. The act of 1801, permitting the nearest descendant or rela- tion, not an alien, to inherit where there are nearer relations who are aliens, is not repealed by the act of 1808, which provides iralsystem of descents, because the act of 1808 provides a question oity, and theref ; the law of alienage. I lawks. 272. (See Rev. Code, ch. 38, rule 9.) See the case in equity of ( 5Jonesj K'j. 246, which affirms iple. III. RULES OF DESCENT BEFORE THE ACT OF 1808. 1. A son inherited lands from his father, and died under age, without chilil, brother or sister, but leaving a mother and a nal aunt of th ■ half bloo at, under the act of 1784, the estate di ant of -the half blood, and did not vest in tin ra r, 2 Hay.. 115, (276,) and 246, (434.) (The rules of descent are now altered, see Rev. Code, eh. ."y purchase and die 342 DESCENT.— III. intestate and without issue, his half-blood are entitled to inherit equally with the whole blood. Sheppard v. Sheppard, 3 Murph. 333, S. P. Ross v. Toms, 2 Hawks, 9. 7. Under the act of 1784, where lands caineto the person last seized by descent from a paternal ancestor, the half blood of the maternal line, who were nearer in degree than the relations on the father's side, were entitled to the lands. Ballard v. Hill, 3 Murph., 410. 8. Where an estate descended to the person last seized from his mother, and he died intestate and without issue, leaving a mV " of the whole blood, and a sist< r of the half blood on his father's sill', it was held that tin- uiece was entitled, under the act of 1-784, In the estate. Hum v. Mar/in. 1 Hawks. -1-'."'. 9. If a man purchase land and die without issue, it will de- scend at first upon his brothers and sisters then living, but if any others are born subsequently, tl iialb iititled; and the same law must prevail relative to half blood are entitled to inl 2 Hawks, 32J the present law, see Rev. Code, ch 10. When those, who claimed the inheritance, were of equal of them could .claim a preference by represent- ing the acquirin li i pally entitled undi r th ■ ad oi 1784, although some of them were of the half blood. Pi li ■ in v. Turner, 2 1 [awks, 135. 11. Where thr< i brothers, before the act of 1784, took by de- vise an estate tail which by that actwas converted into a fee sim- ple, and then ine • died, leaving issue, and afterward another died I sue, held thai bis i hare was equally to be divided between his brothers and sisters of the half blood, and those of the whole blood and their representatives. Beasley v. Whitehurst, 2 Bawkf 137. 12. The next collateral relation of the person last seized, though exparte paterna*, shall inherit, under the act of 1784, an estate descended exparte mat rna, though this collateral relation be of the half blood, and coi ifter the death if the person last seized. ,V< r lie v. Wlieclb'ee, 1 Dev., 160. 13. Where one who was seized of lands in fee, which she took by descent from her father, died before the act of 1808, intestate, leaving no issue, nor brothers nor sisters, but a mother and pa- ternal uncles, it was held that the mother took no estate in the lands, but they di 31 mded immediately to the uncles; that, upon the subsequent birth of half sisters of the propositus, the estate of the uncles was divested, and became vested in the half sisters as the heirs of the propositus; and further, that although a half brother was born subsequently to the act of 1808, yet, as his sisters were born before that period, and the estate of the uncles had thereby become divested, the last born son was equally en- titled with his sisters to a share in the inheritance. If the-es- DESCENT.— III.-IV. 343 tate of the uncles had not been divested by the birth of the half sisters before the act of 1809, it would not have been divested by the birth of the son subsequent to that act. which altered the course of descent with regard to the half blood. Caldwell v. Black, 5 [red., 163. " IV. BTTLES OF DESCENT UNDER, ASH SINCE, THE ACT OF 1808. 1. In the descent of acquired estates since tin- act of 1808, the only qualification for a collateral is that he be the nearest rela- f the person last seized; but in descended estates he roust also be of the blood of the first purchaser. Belly. Doder, 1 TJ&v. i. Where an estate was purchased hy a father, and descend? od froiu him to his spn, who died leaving a mother, a maternal half brother, pati mal uncles of the half iilo.nl. and other more distant paternal collaterals, .' the proviso in the (Jth rul its applied to cases, where a surviving brother or sis; inherit, well a n tses where non were 1- ft, and therefore, thai til.' 'and descended to the mother . with the remainder in I e to it ■ paternal uncles of the half blood. Ibid. (See Rev. Code, ch. 38, for the present rides i ait.) 3. Where land was devised by a grand father to his grand son, who would have been one of the heirs oi his grand father, if I [ di d intestate, it 3hall, up' tl d 's dying without issue, de cend to h in 1 1 part of his grand father.; than to a half brother, who is not of the blood of the de- visor. Felton v. Bittups, 2 Dev. and Bat., 308. 4. Whore an estate had been transmitted by descent, and the blood of the acquiring ancestor had become extinct, upon the of the person last seized intestate and without issue, the estate, which had c e to ber from a maternal ancestor, u held to descend to her nearest collateral relations, who were s a brother and two sisters of the half blood on her father's side. University v. Brown, 1 [red., 387. 5. A died in the year 1777, leaving two sons, Thomas and George, of whom Thomas was the eider, and was, by the law i>i' the State as it then stood, sole hear to his father. A devised the land in controversy to his second son, George, who died in 1839, intestate and without issue, leaving surviving him a sister of the whole blood under whom the defendant claimed, and the issue of a sister of the half lilo.nl on the mother's side, who arc the lessors of the plaintiff; if was held that, by the rules of descent prescribed in the act of 1808, the issue of the sister of the half blood took one moiety of the land. Burgwynv. Dev- eroix. 1 Ired., 588. (See Rev. Code, ch. 38, Rules, 4 and 5.) 6. Where an estate comes to a person through a series of 344 DESCENT.— IV. descents or settlements, and that person dies without issue, it results back to those of his collateral relations, who would be heirs of the ancestor from whom it originally descended, or by whom it was originally settled. Therefore, where B, a daughter, took by descent from A, her father, and C, the daughter of B, took by descent from B, and then died intestate and without issue, leaving uncles and aunts who were not of the blood of A, and great uncles and aunts who were brothers and sisters of A, it was held, that the land descended to the latter. WUkerson v. Brach n, 2 lied., 315. 7. Tarnar Sanderlin had issue, a legitimate son, fcaac Sander- lin, and an illegitimate daughter, named Zelia, who inter-mar- ried with Lemuel Sawyer, and they afterwards died leaving an only child, tii whin. i the land in dispute was ■■'" rised by her grandmother Tamar. This child then died without issue, lcav- ber neares an uncle and aunt who were the brother and sister ol lier deceased father, and her maternal uncle, the said Isaac Sanderlin; and it , C. J. that no part of the bind descended to Isaac Sander- lin, under whom tb it cla I but the win I ent t< the paternal uncle and aunt, who are the lessors of the plaintiff. Ehfpin, C. J., was of opinion that the land descended equally to the paternal and maternal uncles and aunt. Sawyer v. tfnaijcr. 6 [red., 407. 8. [fa sister be illegitimate, her brother, who is also a ba cannot take by descent from the legitimate daughter of his sister. Ehringhavs v. Carticright, 8 [red., 39. 9. A testator devised as follows : "I lend the trad of land I now live on unto my wife, during the time she remains a widow; and immediately after her marriage or death, I give all the be- fore mentioned estate to my loving wife's heirs by consanguinity, with the exception of '.. M.' The testator died in May, 1837, and his will was proved in the same month, when the widow dis- sented;and in August following, she married A F and shortly af- terwards was delivered of a child, of which she was pregnanl at tin.' death of the testator. The child lived about six months and died, and within a few months after the death of that child, she had', by A E, a child, the lessor of the plaintiff. The testa- tor's wife had five brothers and sisters, when the testator made his will and when he died. The defendant is the heir ex , arte •paterna of the testator's posthumous child, who was the heir of the testator; it was held that the lessor of the plaintiff could not claim as heir- of the, deceased child, because it did not appear that he was horn within ten months after the death of such child, and because even if so bora, he was only an heir ex parte ma- terna, and therefore was not extitled to the land devised to the child, either by devise or descent from the father; and it washeleC further, that, on the marriage of the widow, the land, vested abso- DESCENT.— IV.— DETINUE— I. 345 lutely in the child, and upon its death descended to its heirs ex parte paterna. Flora v. Wilson, 13 [red., 344. 10. Where, by the death other grandfather, (who was the person last seized,) ;i child was entitled to reversion in land, i x- pectanl on the termination of a life estate, and the child died, without isssue, before tin:- expiration of the lit.- estate, it was held that thi' inheritance did not vest for life in the parent of the de ased child, under the 6th rule of decents; but that th pi c son entitled to take was one who was heir to the person last seized, to wit, the grandfather. Lawrence v. Pitt, 1 Jones, 344. (The rules of ire now altered. See Rev. Code, ch. 38, sees. ] and •!. ) 11. Where real estate belonging to infants ha: ! con into money, under the deer if a court of equity for partition, the fund will continue to have too character of real : rid ding to the la w of descents, until the owner lias co i ■ upon 'i I \ some .- of i . 'dwards, 8 Jones, 336. See (Tenants in common : DETIiN I. .. hen the action will or will not lie. II. Parties to the action. III. When a demand is necessary, and n iot IV. Of the pleadings, evidence judg raent and execution. I. WHEN TH!J ACTION WILL OB WILL NOT LIE. 1. Detinue will lie for a negro, which had been demanded while in possession of the defendant, but which he had deliver- ed, before the issuing of the writ, to the perscaa of whom he had hired him, so that the negro was not thee in his possession. Merritt v. Warmouth, 1 Hay., 12, (16.) "2. Where, on a demand previous to bringing detinue, the de- fendant acknowledged that the negroes wore in his possession, held that he could not defeat the action byproving that he had given them to his son-in-law previous to the demand. Flowers v- Glasgow, 1 Hay., 122, (141.) 3. Detinue will not lie against an executor for the detainer of his testator. Walker v. Hawkins, 1 Hay., 398, (458.) 4. To support detinue, the plaintiff must have the right of action at the time ol the trial, as well as at the time when the action was brought. Here the slave had been sold by execution 346 DETINUE.— I. pending the trial, by direction of plaintiff. Shepard v. Edwards, 2 Hay., 186, (387.) 5. A special property in a trustei . derived from the order of a court in Virginia, accompanied by possession raider the ord$r, is sufficient to maintain detinue for slaves. Wade v. Edtoards, Conf. R >p. IK',, (482.) S. C, 2 Hay., 221, (395.) 6. Detinue lies in every case where the property is detained, and no regard is had to the manner in which the defendant ac- quired possession. Johnston v. Pasteur, Conf. Rep. Hi!. (520.) S. C, 2 Hay., 306, (495.) 7. The possession, necessaryto renders defendant liable in an action of detinue, need not be an actual possession, but may be one in a legal sense, as where another holds as bailee a1 will, or tor the benefil of the deti ndant. Therefore, where it appeared merely, that the defendant, before suit brought, "put the slave in question in possession of his brother-in-law," but without any written transfer and without consideration, it was held that it was proper te b 1 i. to thejurj to say how the_ possession was — whether in tl brother-in-law — and that the plaintiff could not be non-suited, upon the ground that there was no eA'ideuce of his possession at the time of bringing the suit. Jones v. Green, 1 Dev. and Bat., 354. 8. The gist of the action of detinue is the wrongful detainer at the date of the writ, and not the original taking of the chattel. It is generally, therefore, incumbent on the plaintiff in this action, to showan actual possession or a general controlling power over thi chattel by the defendant, at the date of the writ. And if the defendant had not the actual possession at the time when the writ was sued out, it cannot be said that he is in law liable to the action, but only that he is liable, if, upon the evidence, the jury should infer that he had a general controlling power ovei the possession at 'that time. Charles v. Elliott, 4 Dev. and Bat., 468. 9. If one, having a right to the possession of chatties, make a demand therefor, which is refused, and thereupon, and before the writ is sued out, the defendant part with the possession, the action of detinue may be maintained; for the transfer of posses- sion after demand is treated as an act done in elusion of the plaintiff's action. Ibid. 10. Where two persons took from the plaintiff, at the same time, several negroes, oni claiming and keeping possession of a certain portion of them as his own, and the other in like manner claiming and holding possession of another portion as I is, it was hel'.', that the plaintiff could not maintain a joint action of de- tinue against them, though he might have had a joint action of trespass. Blade v. Washburn, '1 I red., 414. 11. The gist, of the action of detinue is not the original taking, but the wrongful detainer. Ibid. DETINUE— I. 347 12. A conveyance of slaves was made to a trustee, in trust for the sole and separate use of a married woman, who after the death of her husband conveyed them to the plaintiff, and It \d, that he could not recover the slaves a1 law, as he had acanired only an equitable interest by his purchase, the legal title being still in the trustee Jones v. Strong, 6 [red., 367. 13. In an action of detinue, the plaintiff must show ai actual possession in the defendanl of the thing •'■ mandi d or a control- ling power over it, atthe time, or shortb before, the writ issues. Hence, where A, having a claim for a negro slave, sued out a writ of replevin, under which the sherifl seized a ii ;n a the ion ofB, which writ, for som • cans.-, was quashed it was held, that A could not sustain an action d linst B, until t ! id actually 1- tored to the possession of B. Foscue v. Ei bank, 10 h-ed., 424. 14. Where A was entitled bo a threatened with a s ii i ng the slaves out of the Slate, in con ii -' ; sh uld be . reed that the ' h >uld be ] e pos- . of B, who ws payhei the mies i ually, and they ccordingly placed in B's po ■d all her legal interest in the slaves to B, there being i sufE :ient cons ider it ion and an a< tual di ! s ■ ; of the slaves; tha A, therefore, could nut supporl nor any other action at law for them: but h if B jaded to pay ever the hires, was in equity. Henry v. Wilson, 11 I red., 285. 15. Wherea slave was stipulated to be thereafter conveyedin writing to a trustee, to the separate i me covert, and was put into the possi ssion of the trustee for another purpose, but it was afterwards formally agreed by the seller and the trustee, that the latter was to be thenceforth invested with the title to the negro, though such negro was absent at the time; it was held that the trustee was,.a1 least, the bailee of the former owner, and. as such, was entitled, to recover him in an action of detinue against one wrongfully withholding him. Thompson v. Bryan, 1 Jones, 340. 16. In order to sustain the action of detinue, even against a wrong-doer, the plaintiff must shew net only a right of prop- erty, but a right of -presenl possession also. O'Neal v. Baker, % Jones, 168. 17. An action of detinue cannot be maintained by one of sev- eral tenants in common of a chattel, even though the defendant should fail to plead the non-joinder of the others in abatement; but the objection may be taken upon the general issue, or by demurrer, or by a motion in arrest. Cain v. Wright, 5 -Jones. 282. See (Bailment, 5.) (Limitations — When the statute will or fill not bar, 18-23-48.) (Tenants in common, 15.) 348 DETINUE.— II.-III.-IV. II. PATIES TO THE ACTION. 1. The action of detinue survives against the 'personal repre- sentatives of the defendant. Daniel x. (Mb, .Mar., 42, (.'55,) and 77. (.SO.) (See llev. Code, ch. 1, see, 1.) 2. A gaye a slave to his niece, agreeing to keep him during his life, and afterwards, during A's life, B married the niece, and, after A's death, he was permitted to sustain detinue in his own name for the slave. Walker v. Mebane, 1 Murph, 41. III. WHEN A DEMAND IS NECESSARY, AND WHEN NOT. 1. A demand is necessary to sustain this action, and it must le by the plaintiff himi ae one by his autl ■; known tin- authority at the v. Bush, 1 Hay., 28, (37.) • contra An 2 Hay., 13&, I 2. No demand is neci -■• ny previous to an action of d :ars thai when the action was brought, the defendanl i hem as his own. But if i necessary, a \ ''ml plaintiffs would he sufficient, where it was not objected to by the defendant, at the time it was made. Knight v. //«/'/, 2 Dev. ami Bat., 125. 3. In the action of detinue, a previous demand is ml neces- sary, if the defendant had th pi on med the prop- erty at the institu -nit; and, it seems, that a demand is not necessary in any < p1 to fix onethen in possession with a. liability to this kind of action, although he may part with the possession before suit actually brought, or except for the purpose nt putting an end to a bailment. Jones v. Green, 4 Dev. and Bat. 354. 4. Persons entitled to a legacy of a remainder in slaves, after the death of a tenant lor life, nerd not make a demand of one wh®- claims them as his own, and they may recover damages from the death of the tenant for life, when their right of action accrued. Miles v. Allen, Li Ired., 88. IV. OF THE PLEADINGS, EVIDENCE, VERDICT, JUDGDMENT AND EXECUTION. 1. In detinue for a slave, the plaintiff may proceed for dam- ages and costs, though the slave has been restored to him by tiie defendant after issue joined. Merritt v. Merritt, Mar.* 18, (1.) (Overruled by Morgan v. Cone, 1 Dev. and Bat., 234.) 2. In detinue the plaintiff shall have judgment, though the slave, for which the action was brought, has died since the de- mand Skipper v. Barg,mve, Mar., 74, (7(5.) (Overruled by Bethea v. McLmnon, 1 Ired., 523.) 3. Where detinue is brought for several articles, whether the DETINUE.— IV, 349 jury must assess the value of. and dam . each article separately, and 3ome otl ed, in the note to Leuris v.' Williams, 1 Hay.. 150, (172.) 4. A recovery in trespass is not a bar in detinue, unL damage lasswere given for the value of the property, uid that must be left to the jury upon tl id lci Holhman, 2 Hay. 328, I 5. When a writ in detinue laid no value forthe negroesnamed in the writ, the defendant should demur, -is it forms no ground for am judgment, after a \. rdict finding the value. Hutchins v. McLean, Conf., Rep., 110, (240.) 6. It' in detinue the jury find for the plaintiff a;id assess :s forthe detention oi I but do nut find their value, the court will not order a i ■ vv trial in toto, but will order a distringas to issue, and, ifuponthat thi b tv< '■•■• no! d to the plaintiff, then a writ of enquiry si all issue to ascertain the value of the slaves, and for such value the plaintiff m his option, take out either ay/, fa. or a ca. so. Key v. , Murpn., 523. 7. In detinue, if the defendant relies upon his possession, either as a bar to the action, or as part of his title, the burthen of proving its length lies upon him. Darden v. Allen, 1 JJev.. 466. 8. Every possession is presumed : n the title and for the benefit of the pos : or. When the title and possession have been shown to ha'* on pi intiff, that posses- sion is taken to have continued until another arose in some other person : audit is not incumbent on the plaintiff to prove an ac lal a in himself ■within three years before action dv a divestment of ossession, bj an adverse one in himself, or some other i with whom he could connect hi i - ion. But in a i i in lee will either de- stroy tii ir the acti '.). VV or a slave, he was ' ■ " r y U1 not evidence oi title int te plaintiff, in another suit brought againsi the purchaser at the sheriff's sale. Briley v. r, 2 I),- v.. 2. lit. A verdict and judgment in detinue are conclusive as to the tit I' te parti : but a purchaser at a sheri f's sale is not a privy to the defendant iu the execu- tion. Ibid. 11. An action of detinue is an affirmance of a continuing title to the thing detained; the plaintiff does not, as lie does in an action of trover, disaffirm a continuance of title in himself, but may sustain an action for the same chattel against a third per- son, or even against the same party, although he may have ob- 350 PF.TISTE.— IV. tained a Former judgment for it. provided that judgment has - itisfied [bid. 12. Where the plaintiff bailed a slave for life, and after the death of the bailee, lus executors continuedin possession, it teas execu- ition after the death of the testa! dnedin the pre* : there was do pi ation. Mobley \ , Dev., 13. \\ onal property was levied on, but no1 takeninto the sheriff, and afterwards an action of detinue ced for the j1 the original de- fendant, pending whicl riff, it was held that elated back to the levy, and there- 3 Dev.j 338. 14. 1 luponth thing sued t. suit, obtains defeats his own suit, and i . 1 Dev. and l'>at.- . i detinue for slaves, the execution . the defend- aintiff, the title to the propi rty will defendant, by rel: the time of ssue born of _ the execution, will, in elong to bim. I . I ' ■ ■ 16. The plaintiff has a rigid to the . li' to be had: audit is not in the ssessed - 1 _ 17. : mes to the fachattel pend action of deti mima fetch claims under the defendant, and i fi 3 1 »ev. and 18 Fh an action of di tinue, the defendant may be pel •e the last continuance, the d( ath of a slave named in the declaration; and in such a ease the jury such death has happened wl without his fault, they part of the value of the slave in t. _ ■ . i ut if it Las happen dant, then they may inch le the value in su< 16. Evid i I of the all s icially presented by plea: and this pleu, DETINUE— IV,— DEVISE.— I. 351 may be received, if properly verified, at any moment I- fore the verdict is rendered. And when received, under a proper plea, the jury should, nevertheless, gn e d; tli'' slave while he was living. Ibid. 20. In an action of 'I' tinue, a pL c] fcoole " pported; bui added the words "being the same formerly owned by one Bur- kett," I March v. Leckie, 13 [red., L72. 21. Where; was brought for a !. upon carried 1 i judg- ments L there in favor of the plaintifl covery of such ■ final judgment, a child was born of the that tli" plaintiff might recover such child by from th 266. \)\\ [SE. who can takf - uction, as to what i r, i; Construction, as t<> what it inclnd I. CONSTRUCTION, AS TO WHO TAN T LA - sr their main! void, slaves canni t take it. Cunningham v. ( Conf. Rep., 353, (432.) S. C. Tay. 29a, I I 2. A testator devised as follows: "1 give to my son T. and my da lighter P., who v. a iow the wife "1' < '. B., all the remaining pari i qually divided in fee t not- withstanding for those wiS how that sin was born in lawful wedlock, and that this mi ription in was C ' the other more certain acres each. Williams v. Lane, 2 Car. 1.. R. 266, (246.) 7. The description of a tract of land, as containing a. specific ■ of acres, is the same as the description of a tract con- taining so many acres more or less. Ibid. 8. < )ne devised to A his large tavern in Fayetteville, excepting the room over the store which is to belong to the store, and. by another clause, lie devised to his wife the store adjoining the tavern; it was held that the ground in the rear of both, buildings which adjoined each other, passed under the devise of the tavern: forthe exception of the room over the store evinces that tin ■ devi- sor belii red that that too would have passed with the tavern but for ill e cception, and further that n curtilage is necessary to a tavern in town, but not to a store. Barge v. Wilson 2 C r I !:.. 396, (278.) 9. Winn.' mie devises a mill to on.' of his sons, and an entry of land to another, the land covered by the mill pond will pas's 'vise of the mill, though it is within the boundaries of the entry. Lee y. Woodward., X. C. Term 1,'., LOO, (537.) 10. Where a. devisor, who owned a large body of land, composed of several tracts, acquired at differenl times, and known by differ- ent names, and was living on one of the tracts known by a distinct bame, devised as follows: "] give and bequeath to my son, W. II. t;., the tract of laud whereori 1 now live, including the plan- tation, together with all the appurtenances thereunto belonging; ;/ w is //c/(/that ~V\ H.G. took only the tract on which the devisor lived, the word appurtenances comprehending only thingsinthe nature of incidents to that tract. Had the devisor said tiie lands on which he lived, the construction might have been different Hehne v. Guy, 2 Murph., 341. 11. Where there was a devise of land by a devisor to his sou 23 354 DEVISE.— II. H, and others, with a provision that, upon the coming of age of the son, the executor might sell the land, if the son wished, and divide the money; and the son, after he came of age, sold tho land, and the executor, afterwards, confirmed the sale and exe- cuted a deed for it, it wns held that ejectment would not lie against the purchaser, by cue claiming title under the devise, either to try that title to the land, or to recover the rents which may have accrued therefrom before the sale. Whitted v. William*, ?> Murph., 156. 12. These words in a devise, " I give and bequeath all I possess in d s -and out of doors," will pass real estate. Tolar v. Tolar, :'. Hawks, 74. 13. In a will, real estate does not pass by the words "all my properly and possessions, consisting of both personal and perish: able," with the further expressions "that they should pay my debts out of it. and the residue to be equally divided between tjiem, to have' ami to hold to them, their heirs and assigns fore- ver." Clark v. Hyman, 1 Dev., 382. 14. The rule is clear that the heirs at law are not to he disin- herited, unless the intention of the devisor is so expressed as to convey a necessary implication. ll>iev. and Bat., 479. 18. The words "all my property" include everything which the testator has, unless the intention to the contrary be plain. Ibid. 19. A devise by a testator, of his -'home plantation." will not carry town lots, laid off on a part of that tract of land by com- missioners under an act of the legislature', passed at the instance of the devisor, when it appears that the lots have been occupied for many years as part of the town, although the title to the lots DEVISE.— IT. 355 may still be in the devisor. Hampton v. Cowles, 4 Dev. and Bat, 16. 20. A testator devised to his wife as follows: " It is my will that my wife, Margaret, shall retain and keep in her possession all that I may be possessed of at my death, during- her natural life." It appeared in evidence that the testator had lived for many years, and at the date of his will, and at the time of his death, on a certain plantation. The will was made in 1815. In 1811, upon tlic marriage of the defendant, his son. he had permitted him to occupy a small portion of the plantation, with an under- standing that his son was to remove as soon as he built a house on his own land. In 1813 the testator insisted his soh should remove, which he refused to do until his house should be com- pleted, which would he in 1814 The testator, and not the de- • Pendant, always gave in the land for taxation, and paid thetaxes. H:hh thai under the words of the devise the land passed, and that from other clauses of the will, and the parol testimony, it was clear; the testator intended to devise the pari occupied by his son, which occupation was in fact only the possession of the tefetator. And held further, that parol testimony was admissible to explain an obvious ambiguity of expression, as to the descrip- tion of the subject of the devise, as, for instance, to show the si- tuation or occupation of the land at any given time, or whether parcel or not pa devised. Bolide v. BoUck, 1 Ired., 244. 21. A devise of •■all my property of any nature or kind what- soever, whirl i 1 1 Is. | apers and moveables will show," can. by no intendment or construction, be taken to indicate an intention in itator to devise the land, which belonged to his wife. — Mitchell v. Mitchell, 1 lred.. 257. 22. A testator 'i; i ised one tract of land in fee to his daughter E, and another to his daughter F, and added, in" a subsequent clause as follows: "I further will that my daughter E shall be entitled to all the wood of every di to be taken off, as suits her convenience, of that tract of 300 acres of laud, be- queathed to ]•'. most convenient and adjacenl to her plantation." &c, lying west and south of certain other lands, it was hid, first, thai E took all that portion of the vegetable kingdom, growing on the land, of a woody or arborescent nature, with liberty of ingress and egress to take it away: secondly, that she took it in fee and could, therefore, com ey it in fee; thirdly, that she, did not take all the woed growing on the land devised to F, bul only such as was convenient, and was on that portion of F's tract, thai lay south and west of the designated tracts. Gain, i v. Murray, 1 lred., 517. 23. The act of 1844, ch. 83, making devises operate upon such real or personal estate as the testator may own at the time of death, does not apply to wills made before that act, and 35(5 DEVISE.— II. therefore such wills do not include after purchased lands. JJatilc v. Speight, S> [red., 288. 24 A testator devised as follows: "1 give to the lawful heirs of my son B deceased the plantation whereon I now live; I give to mj son C and D, and their children, the residue of my estate. both real personal," & c. ; it was held, that a tract of land, which the v had bought adjoining that <>n which lie had previously lived, passed under the devi "of i 1 i plantation on which he then lived," it appearing that he had cultivated the two as one tarm for many years. Stowe v. Davis, 1" [red., 431. 25. li is nut competent in tie' construction of a. will, to prove by witnesses, that tin.; testator meant a clause in his will to be different from what it was written, or afterwards declared that the clause as written, was different from th ■ purport of it on its lace; though evidence of parcel or not parcel of the thing de* vised, or any .'tier thai serves to lit a thing to the descriptions is admissible. Ibid. 26. Where a lather, in consideration of live shillings and of his love and affection for his daughter, conveyed land by deed to her husband, and the husband, by his will, devised In Ins wife "all the property to 'which he became entitled by his marriage with her,' in lien of her dower, and there was no express dispo- sition of the land in question in any other part of the will, it was held that the land was embraced in the devise to the wile. Drake v. Ufarritt, 2 denes, 368. 27. Where a testator, owning a tract of land with known metes and hounds, showed by the whole sco] f his will that In- intended to provide a home for his wile and one daughter, at one end of the' tract, and for his children as a class at the other end, but called for no particulars boundary except a dividing line made up of several lines which together ran nearly, butnol quite through i aal tract, it was held that, to ascertain the land oi I he w ife end daughl a-, the outi r boundaries of the old i itended lor tie m were to be followed, (though not described in the will,) from the place where the dividing line intersected with one of them. pie, 6 Jones, 533. 28. Vi here a man had signed and seal if gift which he per delivered, and then made a will as follows: " I give to my son S, in addition to what 1 hail given him by deed ol gift"? i notes. &c, it was held, thai there was not a sufl reference to the deed above mentioned to incorporate it into the will, and so pass the land by devise; ami it was in-Ill further, that the ambiguity was a patent one which could not be aided by paml proof. Bailey v. Bailey, 7 Jones, 44. 29. Where a testator, owning two adjacent town lots, settled a woman on one on which he built a dwelling house, and put an outdiouse on the other, and permitted her to have a garden DEVISE.— II.-III. 357 which was partly on each lot, the whole being enclosed by one fence, devised to her "the lot of ground and the house thereon, on which she now lives;" it was held that the whole parcel in her possession, embracing both lots, passed by the devise. Jones v. Norfla t, 7 Jones, 473. 30. A testator gave to his wife a tract of land for her life, and after disposing of several other articles of property and sums of mom y, -aid. "All my property that is not named, both real and personal, is to be sold, and after paying all my .just debts, to be equally divided between my lawful heirs, in such a way as to mala.' I : ieM, that the reversion in the land. d to the wife for life, fell into the residue and was to be sold for an equal division. Clinev. Latimore, 1 Winst. 207. mtion to dispose by his will of all his property, and uses general words sufficient for state in reversion will pass. Page v. Atkins, 1 Winst, 273. 32. A testatoi I of land to his wife for life, and . added the followii- is that all the property, that I have not willed away, shall ! . and equally di- vided between mj a.' &c. ; it was held, that the re- version in the land after the life estate given to the wife p by the residuary clause. Ibid. Si (Evidence — Parol evidence, when admissible, 47.) III. CONSTRUCTION, AS TO WHAT INTEREST IT PASSES. 1. Devise "to J). J., his heirs male, and assigns forever,and for want of such, to the male heirs of S. J.," &c. D. J., had daugh- ters at the date of the will, but never hada son; held, that D. J., took an estate tail male which, by act of 1784, was converted into a fee simple, which on his death descended on his heirs ge- nerally. Jeffries v. Hunt, 2 Hay., 130, (294.) 2. Devise to two sous, charged with tin.- education of their two younger brothers, will give a for. especially where an estate for life w is expressly given to the widow in another part of the will. Evansv. James, 2 Hay., 152, (330.) (Devisesare now to be con- strued in fee unless otherwise expressed. Rev. Code, eh. 119, see. 26. ) 3. A devise to A in foe, ami if he die without issue lawfully begotten, then to I',; the devise- to lj is too remote, and, therefore, void. Suttonv. Wood, Conf. hep.. 202, (312.) 4. If there be a devise of lands to A, for life, and after his deatli to his son John and his heirs, and if no heir, then over, the limitation is too remote and void. Bryant v. Deberry, 2 Hay., 356, (.')4li.) (For such limitations now, see Rev. Code, ch. 43, see. 3.) 358 DEVISE.— III. 5. Where a testator devised as follows : " I give to the children of G. W. L., provided he has any, if not, to the heirs of my sister S., the land, &c," and it did not appear from the will that the testator knew of his sister S. being alive, it was held that the word "heirs" must be taken in its legal acceptation and will not operate as a descriptio personarv/m. Stith v. Barnes, 1 Car. L. 11. 484, (96.) 6. A devise of land " to A and the heirs male of his body law- fully issuing, and if A dies without leaving lawful issue as afore- said, I give the lands to the eldest son of B," is a good executory devise to B's oldest son. Jones v. Spaight, 1 Car. L. R.. 544, (157.) 7. A devised "to his son B three hundred and fifty acres of land." By another clause, he devised thus: "I give and bequeath to my son B and my four daughters all the rest of my estate^ consisting of various articles ton tedious to mention. This was before the act of 17-84, and the first clause gave B only a life estate; and it was held that the reversion did not pass under the residuary clause, hut descended to the heir at law, although there was a clause in the will giving him twelve shillings. Har- ris v. Mills, 1 Car. L. R., 535, (149.) (Since 1784 such a devise to. B would give him the fee. See Rev. Code, ch. 119, sec: 2& 8. A devises to his grandson B a tract of land, "and in ease B died before he arrived at lawful age, or leaving no issue, then to his grandson C;" held that, upon B's arrival at lull age, the estate became absolute in him, though he afterwards died without issue. Dickerson v. Jordan, 1 Murph. 380., 9. Devise of lands by a father "to be divided between his daughters, B and ( '. and if either of them died before they came (if age <>r married, the share of the one so dying to vest in and belong to the other." B marriedand died before she became of age; held that the land vested absolutely in B, upon her mar- riage, and upon her death descended to her heirs at law. Lind- say v. Bin-foot, 1 Murph., 494. 10. A mother devised to her son A one part of a tract of land, to her son B the residue, and directed that "if either of them died, leaving no heir lawfully begotton of his body, the living should be the lawful heir of all the land;" held, upon A's dying without issue, that B took the whole land, as the contingency of the one dying leaving no lawful heir of his body was tied up to the lifetime of the other. Pendleton v. Pendleton, -' Murph. 82. 11. A father devised lands "to his daughter A for life, and at her decease, to descend to her first male child, but if she should die without such male heir of her body, then to her present daughter M, to her and her heirs forever." A, had several male children after the death of the devisor, but the eldest died in her life time. JJeld, that the land vested in him, and defeated DEVISE.— III. 359 the limitation to A's daughter M. }Vooten v. Shdton, 2 Murph., 188. 12. Where one devised lands to his "daughter A B, to her and her husband during each of their lives, and no longer if dying without any lawful heirs begotten of their bodies, and if any lawful heir, to that and its heirs forever; otherwise tore- turn to my heirs at law. and their heirs forever:" it was held that the limitation came within the rule in SheUy's case, and that upon the death of the husband, the land survived to the wife in fee. Williams v. Holly, 2 Car. L. I!.. 286, (266.) 13. Where one devised lands ''unto ]'>. B., to him and his heirs el' Ins body lawfully begotten, and for want of such, to the heirs of M. T. l'> .," and in other parts of his will noticed that M. T. 1!. was then living, but she had no children then, or after- wards, it was lull], that the limitation to the heirs of M. T. B. was contingent, dependent upon the estate in B. T>., and that, upon his dying without issue in the life time of M. T. IS, the remainder never took effect. Chesson v. Smith, 2 Car. L. h'.. 392, (274.) 11. \\ here one devised to each oi his three daughters a tract of land, providing that if 1 either of them should die before mar- riage, the lands of each should go to the survivors, and in case all should die before marriage, their lands should goto P> and ('. U was held, thai the limitation in this clause was not affected by the limitation in the residuary clause, in which all his estate. real and personal, was given to his three daughters to be equally divide 1 between them, when the two oldest arrive at the age of nor marry, and that if either of them should die before they arrive at eighteen or marry, then the share of the one so dying should go to t lie survivors: bul if they should all die before they arrive at eighteen years, or mayy and have issue, then the said personal estate, and all other property which thej >' ere entitled to by hi^ will, should go to l'>. 1>. R. and A. Arrington v. Alston. 2 Murph., 321, S. C. \. C. Term R., 310, (727.) 15. Where a devisor directed that, upon the failure of the issue of-histwo sons, part of the lands devised to them should be rented out for the benefit of the daughter during her life, and after her death to her children: and another part of the same land to pass at the same time to J. S.; if the limitation to J. S. be good, yet he cannot recover the lands without showing that the issue of the sons had failed in the life time of the daughter. Stevenson v. Juror/,:: 3 Murph., 558. 16. Devise to A, and if he die without any lawfully begotten heir of hisbody,then to his brothers and sisters, gave an estate tail, which, by the act of 17*4. was changed into a fee. and the ulterior limitation was void. Sanders v. Hyatt, 1 Hawks, 247. S. P., Beasley v. Whitehurst, i Hawks, 437. 17. Where a devisor gave a portion of his land to his wile 360 DEVISE.— III. for life, and then to the child of which she was then pregnant if a male, and in the event of the death of his son W., to whom he had given other lands, or the death of the child, with which his wife was then pregnant, if a male, the survivor skoidd have the whole, if either died without issue; and it both died without issue, then J. S., a nephew, should have portion of the land: the child of which the wile was pregnanl was a female; and it, was held thai the nephew took nothing, for that the gilt to the nephew depended upon the birth and death without issue of a male, which, under the circumstances, was to be construed a condition precedent, and that event not having happened the estate designed for the nephew could not take effect. St son v. Jacocks, 1 Hawks, 285. 18. Devise as follows: " It is my will that all the remaining part of my estate, real and personal, be equally divided among the heirs of my brother, -I. I'.. the heirs of my sister, X. S.. the in;;, sister, S. \Y., deceased, and nephew, L. W. The brother J. F. was noticed in the will as being alive, and the nephew L. W. was one of the children of the deceasi d sister, S. W. Held that the words "heirs" meant children, and that the lands must he divided per mqnia among them all: ami that the nephew, L. W., should Etavean additional share. Stowe v. Ward, 8 Hawks, 604. (Overruled by S. C, 1 Dev. 67, but reaffirmed in Wardr. Stowe, 2 Dev., Eq. 509.) 19. Where one devised as much land as his wife could culti- vate, during her life or widowhood, and that his executors should rent out the residue of his cleared land, until his children should Some of age to take it into possession ; and the life estate ex- pired during the nonage of some of the children, i was 7,eld that those of full age had a right to an immediate partition of the whole ot tin.' lands devised. Hoyle v. Hu&on, 1 Dev., 348. 20. The words "alter all my just debts are paid," annexed to a devise oi lamls. do no1 confer upon the executor a power of sale. The act of 1789 avoids, as againsl creditors, all devises for the payment of debts, and renders words of the above kind nug- atory. Dunn v. Keeling, 2 Dev., 283. (As to the manner in which the debts of a decedent are to he paid out of his land, see Rev. ('ode, ch. -Hi. sec. 44. and following.) 21. Where a devisor directed that his widow should cultivate as much of hisland during her life or widowhood as she pleased, and the "balance" was to be rented out by his executors, Mid that the power of leasing extended to the whole estate, upon the determination of the widow's estate for life. Hoyle v. Stowe, 2 Dev., 318. 22. Where a father, by will, gave one child a specific legacy, and added, " with which he must be contented, without re- ceiving any further dividend from my estate," and then devised DEVISE.— III. 361 • is land "to my children," it was held that the words "my chil- dren," were to be construed "the rest of my children." Ibid. 23. A devise to two, "but if either of them at their death should leave no issue, that the whole should go to the survivor," is a good executory devise — and the devisees take as tenants in commonm fee, with a contingent limitation toeach of them of an estate in severalty. Southerland v. Cox, •"> Dev., 394. 24. One, by his will, devised certain Lands and slaves to his son B; he then devised other lands and property to be sol ; ona Long credit, ami all tin' residue of his estate to be sold on a shorter credit, " lands rented and negroi cep< B's lot of land and negroes," of which he wished him to have the possession at his ile. tih. He then directed the mom from the; sale, rent, hire. &c, to be a] plied to the settlemenl of his estate; held, that, o i the construction of the whole will, B's share was n I from the ; I the fund appropriat id for that purpose by the testator. Croorr\ v. Groom, i Dev. 250. 25. lands " to A for life, and after her death to be i le heirs of her body, and ■s then over," &c, g i \ es A an esl which, i" the act of 1784, is converted into a lei- simple'. Ross v. Toms, i Dev.. 376. 2ii. When there is a particular intent, and also a general par- i nit intent apparent in the same will, and they clash, the ai ral intent must prevail. Ibid. 21. In a will, the words "I leave all my land, not given away, to be sold, and after my debts are paid, the residue of my tween my wife, son and daughter," to- gether with the following in a codi'cil, ''I nominate M. S. to be my executor to this my last will, to make sale of my land before mentioned, and to execute this instrument of writing in every respect," do not vest an estate in the executor, but only confer on him a power of sale. Neither are they a devise of the lands to the wile- and children. Ferebee v. Proctor, 2 Dev. and Eat., 439. 28. A devise to an executor, for the purpose of sale, is not to be presumed without a necessary implication, because giving ldm simply a power of sale effects the same results, and is more beneficial to the heirs. Ibid. •2'J. Where a testator devised a certain tract of land to his eldest sen. and the residue of his hinds to his widow and other suns, and bequeathed his slave to his widow, all his sons and his daughter, and in a subsequent clause directed as follows: "At the death of my said wife all the land and negroes, that may fall to her, shall return to J. Z. "(one of his sons,) and in ease of the death of either of my aforenamed children, without a lawful heir, begotton of his or her body, that then las or her part shall 362 DEVISE.— HE be equally divided among the survivors," it was held that upon the death of J. Z,, without children, subsequent to the death of the widow, all the lands, which he acquired under his father's will, both thai part which was given to him immediately, and that part which was limited to him after the death of his mother, went over to the surviving brothers and sister, and that the lim- itation was not too remote. Zollicoffer v. ZoUicqffer, 4 Dev. and Bat., 438. 30. Since the act of 1784, for converting estates tail into estates in fee simple, executory limitations of land and chattels are to lie construed alike, upon the presumed intention of the testator, that, in each ease, the estate should go over on the same event. J hi, I. (See Rev. Code, ch. 43, see. 1.) 31. Where a testator, who had three tracts of land adjacent to each other, over parts of ad which his plantation extended, and had three sons, 11., J. and W., of whom 11. and J. were married, and resided upon the testator's lands, devised to his wife "full posses- sion of all the plantation and stock, &c, durifTg hernatural life, or widowhood, except the particulars that may In reafter he men- tioned," and then devised to his sen R. "all the 200 acre tract of land that he now lives on, and so much of the old track as lies on Ih- same side of Homony creek, &c," and in a subsequent part of his will devised as follows: " I will to my son J. all the remaining part of the old tract of land, exclusive of the part above mentioned to my son PL, and bequeath unto my son .1 my still, and all her furniture, at the death or marriage of my wife. Also my wagon and hind gearing, at her death." It wax held that the testator's son J. took an immediate estate in fee in the lands devised to him, and not an estate in remainder after the death or marriage of the testator's widow. Jones v. P'osten, 1 [red., 166. 32. In expounding a will, the grammatical construction must prevail, when an intent to the contrary does not plainly appear. Ibid. 33. In a devise before the act of 1827, the words "if my son should diewithout lawful issue," unexplained, impelled in a legal sense the failure of issue at any indefinite time, whenever it might happen; and a remainder limited upon such a contingency was void. Brown v. Brown, 3 Ired., 134. (See Revised Code, ch. 43, sec. 3.) 34. A person having several children, devised to his two sons, W. W. and II. \V.,a tract of land, to them and their heirs fen , er In a subsequent clause, after many previous devises, he devised as follows: "I will that if any of my children die without issue, leaving a wife or husband, it is mv will such wife er husband shall lie entitled to one-half of the property, the other half to be equally divided between my other children or their heirs;" it was held tliat the contingent limitations over were good, and, there- DEVISE.— III. 363 fore, that W. W. and R. W. could not convey an absolute and unconditional estate in fee simple, free from these limitations. Garland v. Watt, 5 Ired. 287. 35. A testator djevised to his two grandchildren, W. andC.a certain tract of land called Whitehall, to be equally divided be- tween them, provided that if \V. -'within a reasonable time, would transfer, by deed to his sister C, all the titli and estate his father should confer on him, or may accrue to him in that tract of land now owned by his father, called Bell's Chapel, then my will is. that the said W. have and hold the whole of said tract called Whitehall." Afterwards the father of the said W. died. seized of the tract called Bell's Chapel, but by his will devised the whole of it to C. Although he had no title to th Bell ( !hapel land. W. tendered a deed to his sister C for all his right and interest in the same, and insisted that he thus ! came en* titled, under his grandfather's will, to the whole of the White- hall tract; it was held, that as W. had no rigid or it in the Bel] Chapel land, Ids d operative, and tin- event. on which the title to one-half of the' Whitehall tract was to be : 1 outof C, and vested in W.. had not occurred, and of course he had no right to it. BeUv. Doris. 4 Ired.. 521. 36. When tin- event, which actually happens, comprehends that for which the gift in the will provided, as the greater in- cludes the less, so that the one of necessity involved the other in substance and effect, then the court will adjudge the estate dependent upon the condition to have vested. But where there is no such necessary consequence, the court must say. that the event, on the happening of which, by the will, the estate is to go over, has not occurred. Ibid. .">7. A devisor, by his will executed before the act of 1827. gave lands to Ins two daughters, "and if they should die with- out an heir, then to his wife;" itwasheld, upon the daughters dy- ing without issue, that the limitation overwastoo remote, and therefore void Brantleyv. Wltitaker, 5 Ired., 225. 38. "Where there is an express estate to one for life, with a power to appoint the estate among certain persons, the first taker gets but an estate for life. Alexander v. t Ired.. 430 39. Where the estate is not given expressly for life, but indefi- nitely to a devisee, with power to appoint at his discretion or as he pleases, among- certain named person or to a class, the better opinion in England is, that the devise should be construed to be a devise for lift-, with a power to appoint the inheritance, unless the words of the will clearly negative such a construc- tion. And the law is the same in this State, notwithstanding our act of 1784, which declares that devises of land are to bo construed in fee, unless by the express words of the will, or by plain intendment, it may be held to be a less estate; for tha 364 DEVISE.— III. only purpose of that provision was to establish a rule between the heir and the devisee, in respect to the beneficial interest of the latter. Ibid. (See Rev. Code, ch. 119, sec. 26.) 40. Where one devised as follows: "I give to my wife a life estate in the land and plantation whereon I live," &c. After other provisions he adds; "to my son Aaron I give a horse, &c., my land and plantation that J have before mentioned in (his will with all iiie farming utensils, &c.; and ii is my will that he tak care of his mother and smoothe the pillow of her age," it was held, that the devise oi the land to the sou, in the subsequent ] tart of the will, must be construed as subject In the. devise of the life estate- to the wife in the first part, and not as revoking oi- controlling it. Crissman v. Crissman, 5 [red., 198. 41. A testator di i Hows: "I give to i .- d on J. S., son of S. S., the tract of land I now live on, with the reserve and privilege of my son S. S.. the father of the said ,!. S., the full privilege of the I ad, and all the- profits aiising therefrom during his natural lite. I fin '■ all my lands, that 1 am seized and possessed of at this time, or the profits arising therefrom, to my wife during her life or widowhood, then for ii to fall back to bhe sai I heir as above mentioned:" it was tat, even if J. S., were the heir intended in the second clause of the will, yel lie could only tab 'yet to the reservation in the first clause of a life estate to his father; and ol' couse, he could not ti recover tin.' land in th" life rime of Ins father .. Ragsdale, 7 [red., l'J4. 42. .V person devi d in 17'Sti a tract of lain! to his son, ami added, "an 1 my di sire is. that if my son die without heir law- fully begotten of his body, tor it U ■ to he divided between his own sisters," and ii was in!,! that the limita- tion over was too remote, and that estates tail having b< en con- verted by the act of 1784 into estates in fee simple, the son took an abolute estate in the land devised. Moliowell v. Kornegay, 7 Ired., 261. (Such a limitation is not now too remote. See Rev. ( 'ode, ch. 43, sec. 3.) 43. A testator in 1817 devised as follows. "1 give to my son, J., the trad of land he now lives on, but if he should die without an heir, the land then to be divided between my sons A. and W., ii was held that the limitation over was too remote, the devise to J., creatine' an estate tail, which by the act was converted into a fee simple. Weatherly v. Armfield, 8 Ired., 2'j. (But see Rev. Code. ch. 43, sec. 3.) 44 A testator in 17hl devised as follows, "I lend unto B. W. all the lands I own in Conehoe Island, &c, during his natural life, and after his death I give the lands to his heirs lawfully be- gotten, to them and their heirs forever; and in case he should die without lawful issue of his body, then I lend the above men- tioned lands to his brother, H. W." &C-, and it was held that the DEVISE.-JII. 3(55 words "heirs lawfully begotten," were words of limitation and not ol purchase; thai 15. W., therefore, took an estate tail by the rule in Shelby's case, which by the act of 1784 was convert- ed into a fee simple, and that the remainder over was void ; and, further, that the words "to them and their heirs," superadded words ■■ his heirs lawfully begotten," did not affect this construction of the d< rise. Folk v. Whitley, 8 Ired., 133. A'i. Where one devisi d as follows, " for the love and affection which 1 have for J. M., and to enable him to take care of my two old negroes. B and R, who 1 wish to remain where 1 now li d support themsi Ives, 1 give the land whereon 1 now live [.," &c, it was held thai J. M. took a valid legal estate in the land, without L'egai alleged in favor of the ders, 9 [red., 329. 46. A mere wrong-doer, who has only a. color of title, cannot any estate by his will to his di .. Bryan, 12 Ired., 11 47. A testator devised to his son a tract of land "fi r and during his natural life," and alter his death "to the heirs of his body, to be equally divided between them, to them and their heirs forever," and if he die without heirs of his body, living at the time <•'( his death, then to hisdaughti r; it was held that the sou took only an estate for life. Moore v. Purler, 12 [red., 123. 48. A testator devised land to "P.. daughter of 1!., reserving to B. the use of the land until 1'. should become ten years of , ge, then the rents to 1.- applied to educating her, and in case without lawful heir, begotten of her body, then to be sold. &c!!' 1'.. the daughter, died at lour years of age; 'oil it was held that B., the fa tin r. took an estate to his own use until the time when P. would have attained the age i f ten years. Urol!,, rs v. Brothers, Busb., 265. [9. A testator devised land to I... "provided the said I., shall pay to my gt hundred dollars, and E. died in the lifetime !t was held that the proviso did not make the devise to L. conditional, bu1 gavea legacytoE., charged upon the land; and that by the death <., 290. 50. Where a testator devised to his daughter his real estate, one-third to do with as she pleased, and the other to he vested in trustees as a fund, '-for her benefit and her heirs forever," she .< cen ing the nett profits for and during her natural life and then to such of her children as she may have or leave surviving her. with a declaration that he did not make '-this provision to de- prive her or her husband, if she marries, of the free use and enjoy- ment of the fruits of my labor and industry, but to provide, as far as I can, for her and her children against any misfortune 366 DEVISE.— III. that might happen;" it was held that the daughter took an estate in fee, with an executory devise to her children, should she marry and have any. Winder v. Smith, - .'ones, 327. 51. Where, in a will made before the act of 1827, the testator devised as follows: "If any of my children should die without lawful issue, then their property to return and be equally divided among all my children," and it appeared from other parts of the will, that dying without issue, as applied to the testator's daughters, meant children living at their respective deaths, it was held that the same construction must be applied to the property given to his son, and, therefore, the limitation over of the prop- erty given to him was not too remote. Gibson v. Gibson, 4 Jones, t25. fyl. Where a testator devised land to his daughter and her children, sin- having children at the time of the making of the will, who survived the testator, it was held, that the daughter and her children took a joint estate in tee. Moore v. Leach, 5 Jones, 88. 53. A codieil should be so construed as to interfere with the dispi sitions ma le in the will only to the extent necessary to give full effect to the codicil. Where, therefore, a testator gave, in the body of his will, a fee simple in a tract of land to his grand son,. and then by a codicil directed the land to he sold by his executor, and the proceeds divided among other persons, it was held that until a sale was made by the exeeutor, the legal estate of the tract of land remained in the devisor's grand son. Jen- Mns v. Maxwell, 7 Jones, (>12. 54 A devise to the testators's wife during her life, and then as follows, "it is my wish my son W. should live with his mother, and after her death, then &ie part of my land a hove described to belong to my son VV. ami his heirs forever," loas held not to con- vey any estate in the land to \\ . during his mother's life. Head v.'llxt'd, 7 Jones, 620. ."»"-. Where a person in 1828 devised land and slaves to a trus- tee for the use of his daughter tor her life, remainder to the use of all Her children, it was held that by virtue of the statute of uses, which was then in force in this State, tic legal estate for life was vested in the daughter, and the remainder was vested in the children then born, subject to be divested in favor of such as might thereafter be born. Wilder v. Ireland, 8 Jones, 85. 56. Whether a devise to a trustee for the use of another pier- son can now he executed, since the passage of the Revised Statutes and Revised. Code, quaire. Hid. (See Rev. Stat., ch \:\, sec. l and Rev. Code, ch. 13, sec. 6.) 57. Where a father gave by deed to his daughter, and the heirs of her body, a tract of land, and provided that "if the said daughter should die and leave an heir or heirs of her body, in that ease said heirs, being her children or child, is to have all DEVISE.— III.— DISORDERLY HOUSE. &c. 367 the property herein given to them ami their heirs forever," it was held, that the children of the daughter took as purchasers, the rule in Shelly's case not applying. Williams v. Iknshi, 1 Winst.. 102. 58. Whether the rule in Shelly's case would apply, where the limitation isto A for life, remainder to the heirs other body and their heirs, quaere. Ibid. 59. A di *nse "to A. R, for him and his mother and th - rest of the children to live on until the youngest becomes of age," is a gilt of the fee simple in the land to A. R. Riley v. Buch- anan, 1 Winst . 89. DISORDERLY HOUSE. See (Indictment — When an indictment will lie, 78-88-131, ) DISTILLING. 1 A person who leases his still house and still, knowing that the lessee takes them for the purpose of distilling spirits from corn, and who 'lues so distill, isnot guilty ofa violation of theaot prohibiting distillation of spirits from corn, if he have no interest in the liquor distilled. State v. Summey, 2 Winst., 108. 2. Liquor obtained by running the beer once through thesti'l, which is called • singlinge, is "spirituous liqi iin the meaning of the act. Ibid. DISTRIBUTION. 1. The mother shall have an equal share, and that only, with the brothersand sisters of her son, dying without issue, possessed of personal property, whether that propertywas acquired by his lather or otherwise. Anonymous, 2 Hay., 62, (230.) 2. Every person who is an heir, by the law of the country is entitled to the benefit of it, and is not obliged to account for the ?,GS DISTRIBUTION. land settled on him by his parent, in a distribution of the per- gonal estate. Unci* v. Duke, 2 Hay., 224, (400.) _ (For- the law of distribution and advancements, as it now exists, see Rev. Code, ch. 32, rule 2 and ch. 64, sees. 1, 2,3 and 4.) 3. Advancements of personal property, made by an intestate, in his lifetime, to his children, are to be brought into distribution for the benefit of the widow. Davis v. Duke, Tay., 213, (102.) S. C. Conf. Rep., 361, (439.) 4. If the administrator purchase at the sale of the intestate, for the widow, he shall dedud the amounl of her distributive share, although she has transferred half toa third person before the sal,-. Dafar. Duke, 2 Hay., 224, (400.) 5. An advancement i — dd bi valued according to its worth at the time of the advancement. King v. Worsley, 2 Hay., 366, (559.) 6. Th> personal estate of an intestate, no matter where situate, is distributable according to the laws of the country when- the intestate was resident, or had Ids domicil, at the time of his death. Hence, slaves in Virginia, belonging toa citizen and inhabitant of lids State, must be distributed according to the laws of this State. WiUiamson v. Smart, Conf. Rep. 146, (268.) S. C, day. 219, (108.) 7. Petitions for distribution are in the nature of equity pro- ceedings, and must be governed by the rules of chancery prac- tice; and. therefore, if witnesses be summoned by either party, they must be paid by the party summoning them, as their depo- sitions ought to have been taken. Ryden v. Jones, 3 Hawks, 24. 8. Courts of law afforded no remedy for a distributive share, because their forms were fixed before the right to distribution was given. But the right being now given by statute, it is ized in courts of Law. Holmes v. Hall, 3 Dev. 98. '.I. (lifts of personalty by a husband to .children, whether those of his present wife, or by a former marriage, are to be brought into hotchpot, tea' the benefit of the wife, she being I, in this respect, upon the same footing with children not fully advanced. Littleton v. Littleton, 1 Dev. and Bat., 327. 10. A provision by a parent for a child in any manner, or at any time, or however inadequate, (except in the case' of partial intestacy,) excludes such child from the benefit of the act of 1808, providing for children born after the making of their Father's will; yet \<< have that effect, the estate derived by such child must be ex provisione parentis, and not from any other source. Meares v. Meares, 4 lred., 192. (See Rev. Code, ch. 119, sec. 29.) 11. The illegitimate child of a mother, who had died before her father, is not entitled under the statute to any distributive DISTRIBUTION. 369 share in t,he estate of his grandfather. Waggoner v. MiUer, 4 [red-, 480. (See Rev. Code, ch. 64, sec. 5.) 12. The value of an advancement is to be estimated as of the time when the advancement was made, and not as of any subse- quent time. Lamb v. Carroll, 6 Ired., 4. 13. [i ■ count and distribution of an tate's i word "distributees" was held (Eri-nx. C. J. dissent proper to d who are entitled under our sta i tributions. Henry v. Henry, 9 Ired., 278. (See Rev. Cod 14. In the distribution of an i advancement to a hns- band by his father-in-law is an advancement to his wife- kins, 11 Ired., 68. 15. ! '■■ i ticelling of the bond of a child, with an intentiontb re yto prefer him in lite, is as much an advancement as so much cash. Ibid. 16. In ord :r to constitute an advancement of a slave by a parol gift, there must be an actual delivery and change of pose And while a son continues to reside with his father, the gift has but when I s and takes the slave with hi r becomes effectual and its value must ! : - ' os v. Meadows, 1 1 !rcd.. 148. 17. A child does not lose the benefit of an advancement of a lling it. Ibi ' . its' are und be gifts of mom p :rsonal property, for the preferment and settling of a child in nd not such of small value, or such ired for the mainteuace and education of the child. 19. '. male mulatto child was found at the door of a nan, who took charge of her and retained possession for more il > no1 to claim her as a slave, as ■. and he refused to deliver her to any i, who could not show a good title to her as a slave; and at his death he left her $200; it was !■ Id that if the girl was I :1 of kin could not claim distribution oi her, nor of but if she was a slave, then the next of kin were en- titled to distribution both of her and the legacy, if the decedent had had adverse possession of her for more than than three and that to vest the title of the slave in him, by virtue of the statute, it was not necessary that he should have claimed her as a slave. State v. Jones, Hired., 154. 20. Where the administrator of a person, who died intestate before the act of 1844. ch. 51, sold land belonging to the heirs, by their consent, and one of the heirs, who were also the next of kin, had been advanced in personalty, it was held 1 hat in the dis- tribution of the fund arising from the sale of the land among 24 370 DISTRIBUTION.— DIVORCE AND ALIMONY.— I. the next of kin, the said advancement could not be taken into account; that fund being considered as realty. Lawrence v. Rayner, Bush., 113. (Sec Revised Code, ch. 38, wee. 1, rule 2, and ell. 64, sec. 2.) 21. Where a father put his son in possession of land, and after- wards treated it as liis, but gave him no deed therefor, and hy agreement between the father, his son and a son-rn-la w, the latter conveyed to the son several slaves in exchange fir the land given to him by the father ; it i advance- ment of the slaves, and not of 'the land, i<> the son. Credkv Busb., 225. 22. Slaves advanced to a daughter, by her father, on her mar- riage, and remaining in tin p issession of her lie, Kami until the if her latin r, isue, an F the time of the marri ig to the !■: tid, notwithstanding the death ofthewrfe ir father. Him < • 56. 23. Where a father put a slave in the po ne of his children, and afterwards became no d died in- testate, without revoking the gift of thi remained in the possession of his child until the fath th; it wok held to be an advancement, notwithstand I guardian appointed for the father ha'd done all he could to revoke the bailment, and had demandi d the possession of the slave before the father's death. Largent v. Berry, ?> Jones, 531. See (Donatio causa mo\ tis. ) (Jurisdiction — Of the County and Superior Courts, 34.) (Parties, 2-3.) DIVORCE AND ALIMONY. I. When both or either will be granted. I IT. Proce of divorce and alimony. 1. WHEN BOTB OR EITHER WILL BE GRANTED. 1. Where, in a petition for divorce from the bonds of matri- mony for the cause of adultery, it appeared that the adultery was committed before the act of 1814 was passed, the petition wasdismissed, because that was Hi ■ first law which gave authority to the courts to take cognizance 'if the subject of divorce, and ■ I shall nut lie so construed as to have a retroactive effect DicUnson v. Diclanson, '-'> Murph., 327. 2. The act of 1814 authorized a dissolution of the marriage contract for two causes only; and a single art of adultery in-a DIVORCE AND ALIMONY. 371 married man, whereby he became infected with a disease, which he communicated to his wife, was held no sufficient cause for a divorce, because the injury received by the wife was not commu- nicated under such circumstances, as constituted any one of the causes provided for in the act. Long v. Long, '2 Hawks., 189. ;'.. Fraud in the contract of marriage, to entitle a party to a divorce under the act of 1827, must consist of something more than mere defects; there must be such niisn p ms as would deceive a person of ordinary prudence; and therefore, the husband, at the marriage, might have known that his intended wife was pregnant, and five months afterwards she had a mulati i child, it was hdd, thai he he was not entitled to a divori S r. 3 Dev. 535. 4. Where a mail was induced to marry a woman, the mother of a bastard, by her representing to him that the child was his (he being a white man, ) and that as to all the world but him i i virtuous, a id aft a* tl lie discovered that the child was a mulatto, it ti it ttewasenti livorce, if the c ilor was so indistinct as to misl i of ordinary if the child had been carefully kept from his view. ■ 3 Dev., 548. '>. Thi t of 1827 is n ctive in m. Ibid. (See Rev: Code, eh. 39, sec. 1 and -■) 6. A p itition, praying for a divorce a vinculo > only, dismissed, it' the petitioner be not entitled to that relief, and, upon that being refused, declines asking for any cither; for ■ for a divo i v&a in a proper case for it. will never b( made by the court, unless at the instance of the m, 2 Dev. and Bat, 64. 7. The adult r , of th anient of her by id, will nol entitle him to a divorce from bed and board. Ibid. 8. An unreasonable delay by one' party, after a probable kn.iwt I riminal conduct of the other, will, if unaccouted for, pr< i ch party from obtaining a divorce from bed and board. 1 !). Every objection, which can be u inst a divorce from bed and board, will apply more strongly against one a vinculo though a divorce from bed and board may be some instances, to a person nol entirely fautless. yet p lioy of the law, the interest of the offspring, the tranquility and happiness of families in general forbid the total dissolution of the marriage, at the suit of a person, to whom default in any of the essential duties of married life can be fairly imputed. Ibid. 10. The law will not be active to protect a husband from his wife, if his acts have "been conducive to her turpitude, or if his 372 DIVORCE AND ALIMONY.— I conduct evince indifference on his part to her profligacy, in its inception or progress. And whore a, wife openly prostitutes her- self through a period of several years, in the neighborhood of her husband, and he makes no enquiry; does not interpose nor even utter a, murmer, it implies a license to the wife, so far as his rights and honor are involved, to act aw she pleases, and amounts by fair intendment, and constructively, to i ondonation. Ibid. 11. Suit for a divorce ought to be brought within soshort.a time, as reasonably to show that the party is smarting under^ and acting on, a proper sense of the wrong itself and that lie has not acquiesced, until he finds i1 neoi himself to others, or becomes desirous of a divorce for some other ulte- rior purpose. Ibid. 12. The discretionary authority given by the ad of 1814, to the court, to decree a dissolution of the marrias aration of the parties, when one of then) leaves the other, and is living in adultery, is not an arbitrary discretion, but a sound and judi- cial cue. founded on reasonable and fixed principles. Ibid. (See Rev. Code, ch 39, sec. 2.) 13. The courts of this State have no power, in petitions for divorce and alimony, under our law, to allow ; lite. Wilson v. Wilson, 2 Dev. and Bat., 377. power is now given them. See Rev. Code, ch. oi). sec. 15.) 14. A petition, which states that the husband has treated the wife with cruelty, and offered indignites to on, but no particular of either, is not sufficient, to author- ize a decree For a divorce. Ibid. 15. A husband cannot obtain a divorce from his ground of adultery committed by her after a separate it if such ition has been caused by the fault, or at the instigation of the husband. Moss v. Moss, - Ired., 55. 1(>. Where husband and wits are living in a voluntary state of separation, the court may, in some rases, --rant a divorce a mensa fo ' the cause of adultery committed during such sepa- ration. But in no ease will the r.-uri decree a divorce y. 2. Two things must concur to constitute a domicil; first, res- idence, and secondly, the intention to make it a home. If these two concur, it makes no difference how short his residence may be in the new domicil. Ibid. See (Constitution — Construction of various clauses of the con- stitution, 14.) (Evidence — Hearsay and common reputation, 5.) DONATIO CAUSA MORTIS. 1. A on his death had directed B to go into his field, to a place pointed out, and get a sum of money there deposited, which, in Hie event of A's death, 15 was to divide among A's children, held, that this was not a donatio causa mortis to A's children; and that the defendant's acknowldgement of the above facts, and of his having received the money, was not good evidence thereof to vest the money in him as trustee for the children, i < as to defeat the statute of distributions. Windows v. Mitchell, 1 Murph., 127. 2. A negotiable bond or note, not payable to bearer, cannot pass at law as a donatio causa mortis; and the executor of the donor may recover its value in trover from the donee. Overton v. Sawyer, 7 Jones, b - . DOWER. See (Widow — Of her dower. ) DRAINING LOW LANDS. 1. In the case of a petition to the county court, to permit a party to cut a ditch for the purpose of draining his land through DRAINING LOW LARDS-.. 377 the land of another, the .jury alone have the power to decide ■whether the ditch is needed, how it shall be dug, and the dam- ages to be paid to the owner of the land; and the county court can only direct the verdict to be recorded or order a new jury. Collins v. Haughton, 4 [red . 420. (See Rev. Code, ch. 40.) 2. Where A and B, owning lands adjoining each other, agreed by parol, that B might cut ditches on A's land, to be use- ful both to A and B, and they should be dug under the di- rection of A, and until he was satisfied and when the ditches were dug accordingly by B, and used and enjoyed by him during A's lifetime and for three years afterwards without com- plaint; it us is held that although the license to use the ditches on,. A's land expired witb A's death, and the person succeeding to his title might fill up the ditches, if he thought proper to do so, yet he could not sue B for a nuisance, especially without .•I reasonable no ice to discontinue the ditchea Ghri rv. Paget 4 [red., 111. 3. A land owner has a right, even without the benefit of a prescription, to have the water from his land to flow through the natural channels and drains, on the land of another person convenient to it ; and when a third person cuts him oil' from such right by an i mbankment, be may lawfully remove such embank- ment. Overton v. Sawyer, 1 Jones, 308. 4. Whether the owner of the land, on which the embankment was made could sue the person going on his land to remove it. But certainly no one else could complain of it. Ibid. 5. Where the owner of a trad of land, upon which there is a ditch, sells i rt offlie land, including a portion of the ditch, he has no right to stop up, or obstruct even partially, the ditch below, so as to throw the water back upon the other part; and this is so, whether the ditcli was originally made to drain the upper part of the tract or not : for if it actually answered purpose, the purchaser was entitled to the unmolested use ot it. Shaw v. Eth ridge, 3 Jones, 300. ti. Where there was a ditch, which drained the lands of two proprietors respectively, and the owner of the lower tract so obstructed the ditch, as to injure the other party's crop by the ponding of the water, it was In 1,1 that an action of trespass cai the case was the proper remedy. Sliaio v. Etheridge, 7 Jones, 225. 7. Two or more separate proprietors of land cannot join in the same petition to drain their lands, without alleging that a com- mon ditch would drain the lands o£ all the petitioners. Shaw v. Burfoot, 8 Jones ?A\. See (License, 3-4.) 378 DRUNKENNESS.— EASEMENT.— EJECTMENT— I. DRUNKENNESS. See (Indictment — From and matters relating (Indictment — When an indictment will lie, 68.)" thereto, 30.) EASEMENT. See (Evidence— Presumptions, 34-36-37-40-44.) (Grant— Of the presumption of a grant, 6-7-11-12-13-1 4. ) EJECTMENT. I. For what the action will lie. II. Conimeno mei l oi the action. III. 01 the declaration. IV. Of the defendant's bond. V. Entry, when necessary and its effect. VI. Of the defendant's possession. VII. Survey. VIII. Of the title necessary to support the action. .XI. Of the defence, and herein of the consent rule. X. Judgment and writ of possession. XI. Trespass for mesne profits. XII. When tie action abates. 7. FOR WHAT THE ACTION WILL LIE. 1. A house, or even the upper chamber of a house, may be hold separately from the soil on which it stands, and an action of ejectment will lie to recover it. Gilliam v. Bird, 8 Ired., 280. 2. "Where A agreed to permit B to put a saw mill, and houses and fixtures on his land, for the purpose of carrying on the busi- ness of sawing lumber, " as long as B wished," lie having the Erivilege of taking away the improvements, it was held, that B ad a determinable life interest in the casement on A's land, and that ejectment would lie to recover the house and other im- provements, together with the easement on the land. Stancd v. Calvert, 1 Winst., 104. EJECTMENT— II. III. 379 II. COMMENCEMENT OF TnE ACTION. 1. The commencement of an action of ejectment is the service of the c^eclaration on the tenant in possession: and if the title of the lessor of the plaintiff be complete at that time, he may recover. Thompson v. Red, 2 Jones, 412. S. P., Attcrllx. McLure, 4 Jones, 371. in. 'of the declaration. 1. A declaration lor a "tenement," bounded by metes and bounds particularly expressed, is sufficiently certain. ( '■' v. Wood , , 1 Hay.. 24, (32.) 2. In a demise in a declaration, the words "from the date," and •' from the day of the date," signify the- same thing, and are either inclusive or exclusive, according to the intent. Ho Beynokls, 1 Hay., Ill (132:) 3. A declaration in ejectment, served on a t arant i cannol tded, so as to comprise more lands than thos i al- ready described. Carter v. Branch, 1 Hay., 135, (155.) S. P.. Troxler v. Gibson, Ibid. 465, (536.) 4. Where the demise, Laid in a d< claration in ejectment, is about to expire 1" fore a tri il can ; '- had, the court will ] i rmit the plaintifl to amend by extending the term. Tour, v. Erwin, 1 Hay., 323, (371.) S. P., Faircloth v. i, Ibid., 501, (577.) 5. A corporation must make its leases under seal, but the lease which is stated in a declaration in ejeectment is not to be proved, and will be presumed to be a legal one. University v. Johnson, 1 Hay.. 373, (429.) 6. If ejectment be brought for a moiety, a third may be re- coven '. Sq ' es v. Eiggs, 2 Hay.. 150, (326.) S. P., Botvden v. Evans, Ibid, 222. (396!) (Tin eemto overrule Young v. Drew, 2 Hay., 100, (260,) S. C. Tay., 119, (70.) 7. When a devise was laid to have commenced on the 1st of February, 1801, and possession taken under it, and " afterwards, to wit, on the 1st of January, 1801," defendant entered ; it was held, grind, by lorce of the words "afterwards," and the other words may be rejected as surplusage Brown v. Lutterloh, Conf. Rep., 425, (489.) S. C, 2 Hay., 220, (394.) 8. Where the date of the demise and the commencement of the term were left blank in the declaration, it ivas held bad, and the judgment was arrested. Hogg v. Shaw, Conf. Rep., 457, < 514 } ■ ■ , • • , 9. Motion to file a new declaration in ejectment, the original being lost out of the office and the defendant served with a notice to produce a copy, was disallowed. Cleaveland v. Grimes, 1 Murph., 268. 380 EJECTMENT.— III. 10. No very strict certainty in the desription of lands in a declaration in ejectment is necessary, to warrant the writ of pos- sesion. Hence, the following description was held sufficient: "one tract of land containing 150 acres lying in the county of Martin, in the low grounds of Roanoke on the the south-side, it being part of 350 acres granted to J. M., the 7th of November, 1730, beginning at a sycamore tree, supposed to he Colonel C. P.'s line, and so extending in and out, according to courses of patent aforementioned to include and' make out the abovefsaid 150 acres with the appurtenances." Byrd v. Clark, 2 Car. L. E., 622, (425.) 11. A return of "executed" by the sheriff, on ;i declaration in ejectment, is not a sufficient foundation for a judgment by default against the casual ejector. Affidavit should be made of per- sonal service on the tenant in possession. Bledsoe v. Wilson, 2 Dev., 314. 12. When a declaration is served by leaving a copy at the house, or with the servant of the tenant, judgment l>y default against the casual ejector should not be entered, without a ride upon the tenant to show cause why such service should not be deemed sufficient. Ibid. lo. One tenant in common may declare upon a several demise of the whole 1 reel of land, ami recover possession of his propor- tion. Hatch v. Thompson, 3 Dev. 411. 14. In all cases of permis ive occupations, the demise in the declaration must be laid after the determination of the license. Carson v. Bo 15. On the I demise of one tenant in common, the plaintiff, in ejectment, may recover his term in the undivided share of that tenant, but the lessors of the plaintiff must, at their peril, take oul a wril of possession only for the land to which they have title. Godfrey v. Cartwright, 4 Dev., 4S7-. 1(3. Where a d -ease in ejectment is laid from two or more lessors, and it appears 1hai those lessors are tenants in common with one who has not joined in the demise, the plaintiff may yet lie entitled to recover, according to the interest of his lessors, though if one of the joint lessors had no title, the plaintiff could not recover a1 all. Bronson v. Paynter, 4 Dev. and Bat., 393. 17. In an action of ejectment, the quantity of land mentioned in the declaration need not correspond with that which the lessor of the plaintiff claims. He may declare tor an indefinite number of tracts of land, and recover according to the quantity to which he proves title; especially when it appears that all the tracts join each other and constitute, in fact, but one tract in the possession of the defendant, Haggins v. Ketchum, 4 Dev. and Bat., 415. 18. A plaintiff, kv ejectment,, may declare upon the same title against as many persons as are in possession of the land claimed, EJECTMENT.— III.-IV. • 381 though then posses ions maj h several and distinct of di parcels of tin' land. Lovex. M'tlli- • I 1,344. 19. A declaration in ejecl ' parcel :of th< ai v. B, anson, 5 [re I., 20. • die ■ ■' :'. lessi rs in an actio i i ight to ha i t to a liability o his plantiff, he will be entitled abursed for such out of li fendant. .' ears, ! [red., 87. 21.1 rient, In ha i action .in the . . ' 22. In ejectment all the co-tei i . _ [red., 369. 23. eirs at law can i 'in ejectmen his se] arate i j >intly with not join ii a. Dowel v 1 bound i • ■ ' where ti marked i survi obtainin he grant, and . ion, the and re< t in ej insb me count, and thci om one aiming. See (E ■ Of the defence and herein of the >■ '■'•'■ ) IV. OF THE DEFENDANT'S BOND. 1. A bond given by one who app] [ant in an ejectment, with a condition to be void, if he shall pay all costs, which I : adjudged against him, doi - not comply with the requisitions of the act of 1804, and a sci. fa. cannot b< brought on it as a bail bond; but it is valid as a common law bond, and will sustah an action of debt Eiclcs v. Hayworth, 4 Dev., 584. (See Rev. Code, ch. 31, sec. 46.) 2. The bond of a person, seeking to defend an action of eject- 382 EJECTMENT,— IVC-V.-VI. ment, may be made to the lessor of the plaintiff, but it is more proper to make it payable to the nominal plaintiff. Ibid, 3. That bond is in all respects similar to a bail bond required by the law in civil suits, except that it is not made to the sher- iff, and does u it require the defendant to enter his appearance!, Its delivery may lie inferred from proof of its being signed, sealed, and deposited in the office of the clerk of the court, where the action is pending. Ibid. v. e:-ti:y, when necessary and n 1. In this ma! entry is necessary, until an ad ion to bar an entry must be a continued oie for seven years, withoul i claim on the other side. fay. 8, I 2. Tli i in all where an individual woi Blount v. . . 2 Hay., 17.) S. P., i told, U - 1J4 !.) 3. A conv of 1 ityis n it valid, ipossessio f srsely Ibid. 4. If sen long out of possession, makes a conveyance on th land, it will not be the c .i. so a, right of entry. Anonymous, 2 Bay., 134, (302.) 5. An entry, to divesl an e a other, must be on the lands claim ! by him; and if there be ors en patented lands, the entry mast be on ich , possessed i s, 2 Hay., 284, (479.) 6. A deliberate avowal, on the part ot a pi of title in the claimant, or a serious assent to the validity of his title, will ssary, and is equivalent in its effects to an entry or claim. Ibid. 7. A by the University is not valid, when some person is in : lob of the land. The grantee of the State is not in on without entry, tho ■ i the State herself mi ? h i Arnold, '1 Hay., 287, ( 67.) See (Ej sctmen -Of the title necessary to support the action, 63.) VI. OF THE DEFENDANT'S POSSE! 1. Where i that, several years befoi he ction wjaa brought, the defendant had possessed a building, which was in- tersected by the line between him and the less;.: i f the plaintiff, and the building had two rooms, one of whit h was a corn crib, which was on the laud of the plaintiff's lessor, and which, hav- ing an outer door, was kept locked by the defendant, who was requested but refused to remove the building to his own side of EJECTMENT,— Vl.-VII.-VHi: 383 the line; it was held, that if the defendant, at the time when the suit was commenced, kept the crib locked, it was a sufficient possession by him to sustain the action of the plaintiff's lessor. I [red., 293. 2. A i ejectment is entitled to a verdict, if he can show a wrongful possession in the defei ij . i part, no matter how small, of what he claims in i. Gil- 280. 3. Th plain- tifl cam • without showing i title i I he de- 1 . land of which the defendant to have Hipp v. Fon - ', 7 Jo 4. V. ilaration in ejectment in ole of a tract of Ian I, and the evide n ait was of.the plaintifl of .ill but I in the possession to which the Id, that it tiei essary for tin- i to have made a dis :laimer, in order to prevent t him for the land ou1 i I session. See i — Of the defence and herein of the consent ride, 3-5-7-19-20-37.) VII. SURVEY. 1. If a survey be returned, and a new one moved for, the court v er it, unless the foi to be imper- fect. MiUerv. White, 2 Hay., 148, - VIII. OP Tin; TITLE NECESSARY TO SUPPORT THE A 1. The purchaser of the lands of If. E. M tider a sale bj the ioners of eonfj - ated pi iperl Mowed evidence of a title in fee simple, tl I > .. under a deed which he ha ister's office having been destroyed. I. , - v Smith, Mar., 21. id.) 2. Lai ted in 1728 to one who !7,'>0, and B so nt io England. In 1'. on the Ian i and lived on it thirtee n : o D who never took possession, made claim or brought suit until 1787. The sou of Ca rson who assigned to the defendant, who obtain before the suit was brought. Under these circumstaii i as held, that the plaintiff's jus possessionis was lost. Shaw, 1 Hay., 5, (8.) S. <'.. Mar. 34, (24.) o. Iii the case of lapped patents, where both parties are in possession of their respective tracts, but neither actually settled 384 EJECTMENT.— VIII. on the lapped part, the oldest grantee will be in possession -oi that part. Wright v Bogan, 1 Hay., 176, (203.) 4. When one lias obtained a grant for land, he thereby gains a constructive possession, whicn continues until an adverse ion commences-; and that adverse possession must be con- tinued seven years before the right of possession of the first e is lost.' Slade v Smith, 1 Hay., 248, (286.) 5. A bare right of entry cannoi be assi ned, so ■ enabli the a i ; ■: i to on his demis ;. Tbi '. S. I'.. Farrar i, (7.) Gob) \ 'rid, 123, (74.) Dennis v Fan, 1 Murph., 138. 6. Cattle ranging on land is not s i c ilcu- lated to givi notice to the adverse claimant, that his cupied and claimed l>\ a : therefore not such a | sion as will give a title ta An- drewi ' 7. A single act □ i ton will not do to give a under the statute, bul sion must I i as and continued for seven years, without entry, claim on the other side. Ibid. 8. Articles under seal, for the conveyance of land upon the payment of the prio , v ill no1 create such a trust on the part of the plaintiff (at leasl before the money is paid) as to prevent Ins recovery in ejectment from the person to whom the articles were mad ■ ' . I I [ay., 331, (380.) 9. A claimant, by esc ■.'•" main- tain ejectment, i m Jinston, 1 Hay., 373, (429.) 10. An alien cannot maintain ejectment. Barges v. fl Hay., tl 5, (558.) 11. The pi one, who enters under a contract of pur- chase, is not ad 1 the vendor. Young v. Erw in, 2 Hay., 9,(157.) 12. A title undei L gives i d ive possi s- ■sion, which preserves hi Lit of entry, until it is lost by a con- tinued adveri n- seven years under color of title. Ibid. . ' 13. The possession, which giv< s title under the statute of lim- Lti tions, is one under color of title, taken by a man himself, his servants, slaves or tenants, and by him or them continued unin- terruptedly for seven years. Grant v. Winbourne, 2 Hay., 56, 14. Whether getting wood upon land to make tar is a pos session under the statute of limitations, quaere. Anonymous, - Hay., 16, (262.) 15. Where two patents, or deeds, lap, and neither party is set- EJECTMENT.— VIII. 385 tied on the lapped part, the possession is in the oldest patentee or bagainee; but if the junior be actually settled upon the lapped part, the possession will be in him, and when continued for seven years will bar the other party. Bryant v. Allen, 2 Hay., 74, (241,) S. C. Tay., 103, (59.) Barrets v. Turner, 2 Hay., 113, (273,) S. < '. Tay- ]1 -- (66.) Slade v. Griffin, 2 Hay.. 178, (373.) Sawyer v. , Ibid, 235, (416.) 16. If a smaller patent be Laid on land included in a gri and tin- grantee of the smaller pari take possession, and be apt interrupted but continue possession for vi i years, though pos- session of the larger patent betaken in other parts, the sion of the smaller patentee will give him a title. Swain v. BeU, 2 Hay.. 17'.). (374.) 17. if the husband sell his wife's land in fee, the possession of- the. purchaser is no1 adverse until after the "husband's death. jjl oss v. , 2 Hay.. 223, (397.) \8. Possession of a part of a tract of land is possession of the whole, both parties having color of title Lariin v. Miller, 2 Hay.,' 345, (528.) 19. If A have a deed for om I ra ! - : o a deed for an ajoining tract, and they are both comprel i flier, and A is in possession of one, and not of the , the title to the other will not be aided by the statute i limitations. Hoc izie, 2 Hay., 365, (559,) S. P. Steele v. Batch, 381, (597.) 20. .V person, who claims under a pure! i, sheriff mri I prove a title in him, agai I execution i v. Hunt -'. Conf. Rep., ' .) [n ejectment, if the lessor c! under a grant de- ig the lands as confisi . b ty of a partic- rson, he must show that the lands had been confiscated, to issuing oftbegr. ut. Hardy v. Jot s, 1 Car. L. 1L I 144,) S. C, 2 Murph., 52. 22. A deed executed I : n r is in ] v. Ashe, 2 Hay. L03, (264,) S. P. Gibson v. Shearer, 1 Murph., 114. _ ■. A constructive possession of lauds, under color of title for -one years, under known and visible boundaries or lines. I bar the right of entry under I 1 '" Stati ; nor will the ssion for twenty-one yeare oJ diff i u1 parts of the lands, covered by color of title, bypurchasers from him to whom th 'olor of title was made, avail him as to those lands not sol. I ■a tually possessed, for they are distinct tracts held by dif- persons in different rights. Clinton v. Herring, 1 Murph., 414. 24. If the owner of land contract to sell it to one who pays lie- purchase money, but before he gets a conveyance the owner sells and conveys it, to another person, having notice of the pre- '25 386 EJECTMENT.— VIII. vious contract and payment, the person having the first contract cannot maintain an ejectment at law, his only remedy being in equity. Dunstan v, Smithvrick, 2 Murph., 59. 25. In ejectment, the purchaser at sheriff's sale is bound to show the judgment on which the execution issued. And where lie purchases under an order of sale, made by the county court, upon a constable's return, he must show the judgment recov- ered before the justice of the peace. Hamilton v. Adams, 2 Murph., 161. rid. Constructive possession esastsonlj when the claimant has title to the land, and there is no one in actual possession, claim- ing under an adverse title. McMillan v. Hafley, - Car. L. K., 89* (186.) 21. It' one convey lands with warranty, and his grantge also convey with warranty, and the last purchaser be evicted and his grantor pay him the consideration money, and then the first grantor pay, he will not thereby be enabled to maintain eject- ment for the land, for the payment of damages on the warranty cannot amount to a reconveyance of the land. Claytonv. Marh- ham, 2 Car. L. LI, 115, (213.) 28. It is a fixed rule in ejectment, that the possession of a plaintiff, under color of title, must be a continued one. for seven years, to enable him to recover. Jows v. Ridley, 2 Car L. H., 397, (280.) 29. Where a mortgagor is permitted to remain in possession of the hmd. and, after the mortgage is forfeited, he sells to another person without notice, the alienee or his vendee, by re- maining in possession seven years, will acquire title. Baber v. /<>, ns, 2 Car. I, R., 614, (417.) 30. A color of title, without seven years continued possession, will not entitle the plaintiff in ejectment to recover, even against an intruder. Shepard v. Shepard, N. C. Term R., l'o,s. (545.) 31. Possession if a part if a tract of land is possession of the whole claimed by a deed, when there is no adverse possession, nor superior title Fitzrandolph v. Norman, N. C. Term, Rep., 127. (564.) 32. Whereone, mants in common of a tract of land, conveys the whole tract, and his alienee and those claiming under him remain in poi e sion for seven years, (the adverse claimants not being uttder any disability, )they will acquire a com- plete title by the statute of limits ions. Burtonv. Murphy, 2 Murph., 339^ S. c. X. ('. reran !>.. 259, (684.) 32. A possession cannoi be set up as adver se so as to complete a title, when it is common to both parties, as where they claim by descent from the same ancestor. Midford v. Hardison, ■'> Murph., 164. 34. In ejectment for lands purchased under execution, the EJECTMENT.— VIII. 387 plaintiff, as against the defendant in the execution, need show- only, 1st, a judgment, 2nd, an execution, and' 3rd, the sheriff's deed. If, therefore, in the sheriff's deed there be a mistake in reciting the judgment or the execution, or the return endorsed on the execution, or the day of sale, it is immaterial, if it appear that there was a judgment, and an execution issuing thereon, giving the sheriff authority to sell. Thompson v. Hodqes, 3 Murph., 546: S. P., Button v. Dew, Ibid, 260. Smith v. Kelly, Ibid, 507. 35. Where two patents cover in part the same land, and each grantee is settled on his own land, outside of the interference, the title will be in the person having the elder patent; but if the junior patentee has been in the actual possession of the in- terference, or lapped put. for seyen years, he will have thereby acquired a good title under the statute of limitations to that part. Orbison v. Morrison, I Hawks, 467. .">ii. Tenants in common "!' land may recover upon a joint de- mise. Nixon v. Potts, 1 Hawks, 469. .">7. Where A and 1! are in possession of the same tract of land adversely to each other, and ( ', who has both possession and title, executes a deed tor the land to A, the law will adjudge his pos- sos^ion to be the rightful on* ; and the acknowledgment of C, at i i. ti ae ofhisi xeetiting liis deed to A, that B had tin- posses- sion, shall not be sufficient to destroy the title conveyed by his d 1 to A. ne having title to land, part of which is under cultiva- tion and part in wo6ds unenclosed, is taken to be in actual possession of the whole tract. Grist v. Hodges, 3 Dev., L98. 44. An executory devisfee has no ripht of entry, until the con- tingency happens, upon which his estate Vests. Soui i \i 'and v. 3 Dev., 394. 45. Where A has two coterminous grants and B anothei, which covi n a part of one of them and is the oldest, and a fence of A, upon a tract to which he has title, runs very m of the two tracts, and encloses a small portion of B's land, which was also coveri d by A's grant, if was lielfi, B not being in possession; 1st, that aii adverse possession of - seven A a title to all the land within his enclosure; 2ndly| th; end isure being of a pari so small that B might reasbnaj ly con- clude it was a mere mistake in running the fence < T was not of itself, as to liini, an entry upon the land to which he hn and was not an ouster of him beyond the enclosure; ordly, that alihoe, timber and overflowing the land of BbyA were not in themselves ousters ofj B, so as to constiti i ion by V, yet these facts, taken in connection with the fence running upon his land, were proper to be left to the jury, as testimony from which they might infer an ouster. Green v. Harmon, 4 Dev., 158. 46. Overflowing land, by st< ippinga stream below, is not a pos- session, which will perfects defective paper title. Neither is cutting timber; for there- must be some act, which is equivalent to residence or cultivation; and making turpentine on land is probablj a sufficient possession for that purpose. Ibid. 47. A person entering into the possession of lands, under a voluntary parol agreement to convey, no rent being reserved, is not a tenant from year to year, and is not entitled to a notice to quit. But there must be some act, as a demand of possession By one party, or a refusal to deliver by the other, to convert the defendant into a, trespasser, before an ejectment can be main- tained against him. Carson v. Baker, 4 Dev., 220. 48. If an actual ouster be made by one tenant in common of his co-tenant, (and the sole enjoyment by one for many years EJECTMENT.— VIII. 389 without claim by another, who is under no disability, is evidence of such ouster,) there is no longer a common possession, and the remedy is not by petition for partition, but by ejectment. Thomas v. Garvan, 4 Dev., 223. 4H. Under the act of 1791, a possession of twenty-one years with color of title, under known and visible boundaries, consti- tutes a valid title, and no evidence, tending to rebut the pre- sumption thai a grant had in fact issued, can defeat such title. Graham v. Houston, t Dev. 232. 50. Possession of a whole of a tract of land, in virtue of the actual possession of a part, holds only when no other person is in the actual possession of any part, for as soon as another takes actual possession of part, either with or without a paper title, the plaintiff loses possession of that part. Ibid. 51. Under that part of the revemae law, which directs the sheriff in certain cases to bid off land for the governor, he can- not strike off less than the who]'-; if he do. the sale will be void. being beyond his restricted power. Nor can be vest the title in the State after the period for making the deed, prescribed by that act, has elapsed; therefore, a grantee from the State, claiming under such a sale made h\ th< sheriff, has no title, and cannot mafnti at. Avery v. Bose, 4 Dev., 549. 52. The cutting of grass in i ladow for seven years succes- sively, stacking i1 on the land, a*nd fencing the sfc : ■ such a possession, as will, with color of title, her the entry of one claim- ing adversely. Burton v. Carruth, 1 Dev. and Bat, 2. 53. Eji ciuK-nt may be sustained, although it appear that the less. a- - i tiff and the defendant are both living on dif- ferent pafts of the tract " f land in dispute, claiming adversely to each other. Dobbins v. Stephens, 1 Dev. and Bat., 5. fit. Although the 1 possession of a part of a tract of land is in law the possession qf the whole, when there is no adverse possession, ye1 if the land be composed of different held under different grants, and described in the deed to the person in possession by different boundaries, an actual pos- ■ upon one does not in law extend to the other; and if I y an elder grant, the statute of limitations per- be title of that only, on which there was an actual posses- sion, ('arson v. Burnett, 1 Dev. and Bat., 546. 55. If part of a tract of land be covered by two titles, and lie, who has the b( tter title, be in possession of another part of it. he has in law the possession of the whole, unless the person holding under the other title has actual possession of the inter- ference. But, if the person having that better title is not in the actual possession of any part of the land, and the owner of the other is in possession outside of the interference, he has in law possession of lie- interference. Ibid. 56. In ejectment for land purchased at a sheriff's sale, under an order of sale made by the county court, upon a return of a 390 EJECTMENT.— VIII. constable that he had levied on the lands of the defendant, the purchaser must show the justice's judgment, returned to court according to law; and an entry on the trial docket of the court, at the foot of the case, "order of sale," is not such a judgment as the law requires to be shown. Inc/ram v. Kirbu, 2 f)ev. and Bat, 21. 57. Neither is such an entry, together with the testimony of the clerk, that alter diligent search he had been unable to find the original papers in the suit, sufficient evidence of the loss of the justice's judgment, if evidence of such Loss were admissible Ibid. 58. In an action of ejectment by one tenant in common against another, proof of a demand to be let into | ssion by the lessor of the plaintiff, subsequent to the demise laid in his declaration, and a refusal by the defendant denying the plaintiff"' a right, is evidence li-->in which the jury may infer a previous ouster, or adverse possession at (he time of the demise laid in the declaration. Hargrove v. Powell, 2 Dev. and Bat., 97. 59. in ejectmenl I hie defendant, who has executed to the I of the plaintiff a deed for the land in controversy, to which femes covirls were parties, but which had not been regularly proved as to them, cannot deny the plaintiff's right to recover. Matthews v. Matthews, '2 Ired., 217. 60. Ejectment cannol he maintained in this State upon a naked ; ion once had, where tin re is no presumption of a con- veyance h1' the legal title, but it appears affirmatively to be in- another person. Duncan v. Duncan, 3 [red., 31*7. til. In ejectment the purchaser, at an execution sale, need only show, as against the defendant in the execution, the judg- ment, execution, sale and sheriff's daed. Ibid. 62. A possession of twenty -one years, under colorable title and under known and visible boundaries, will confer a good title and bar the entry of any person claiming under the State, without any reference to the period at which the person, so entering on the previous possessor, acquired his right or claim tinder the State. Pave r. Statov, 1 Ired. 32. 63. The word "entry" in the act Rev. Stat., ch. 65, sec. 2, means an actual entry into the land, as the exercise of a right under a valid legal title derived from the State, and nut an entry in a public office, as of vacant and unappropriated land, towhich the party intends i to perfect a title. Ibid. (See Revised Code, .ch. 65, sec. 2.) 64. A plaintiff, in ejectment, can only recover upon the strength of his own title, as being good against all the world, or as good against the defendant by estoppel. Clark v. Digys, 6 Ired., 159. 65. When land is conveyed in fee to a person upon certain trusts mentioned in the deed, the trustee can convey, a fegr«? .title EJECTMENT.— VIII. 391 to the property, so as to enable the alienee to maintain an action of ejectment. The question, as to his equitable right to convey for a different purpose from that authorized by the trust, is one of purely equitable jurisdiction, and cannot be entertained in a court of law. Canoyv. Troutman, 7 [red., 155. lili. Under the acl of 1848, ch, 5;i, on the trial of an ejectroentj brought by a purchaser at an execution sale against the dei'end- ant in the execution, or one bound by its f, stt . qo judgment need be shown; a1 all events, unless the plaintiff be the purchaser in ihe execution. Rutlterford v. Raburn, 10 Ired, 144. (See Rev ( iode, ill. 4 1, see. l;;. ) t>7. In cases where it is necessary to produce the judgment, as where the opposite party claims under a prior conveyance, a variance between the judgment and the execution will not avoid the proceedings under the execution, provided enough appears to enable the court to see, with reasonable certainty, thai in fact the execution was issued and intended to enforce the particular judgment. Ibid. 68. Where the note, on which the judgm ut was obtained, was payal le to the firm of "Lester, Kilgore '.). Where the lessor of the plaintiff in ejectment claims as purchaser at an execution side,, made undi r a judgment in which he himself was plaintiff, be must show the judgment as well as th execution; and it' the sale was by execution under a decree in equity, he must not only show the decree, hut also the bill and answer, and so much of the pleadings and orders, as will show that ih" decree was pronounced in a cause properly constituted between the parties. Lyerly v. Wheeler, 11 Ired.. 288. 60. Where A had leased land to P>, in the year 1848, and during that year while B was in possession under the lease, A executed to C a deed, purporting to convey to him the fee sim- ple, and thereupon C, on the 25th of Decembi r, 1848, commen- ced an action oi ejectment against B, it teas held, that the ac- tion would not lie, because at the date of the demise, C had not the righl of entry. l J rir, v. Osborne, 12 Ired., 26. 71. A purchaser of land is a privy in estate with the bargain- or, and has the right, where necessary, to uso the name of the bargainor to effect a recovery in ejectment, and alse to take pos- session in his name. Posten v. Henry, 12 Ired., 339. 72. If at the time when the lessor purchased and took his con- veyance., the defendant was in possession of t)ie premises de. 392 EJECTMENT— VIII. scribed in the declaration, claiming them adversely, the plaintiff cannot recover. Mercer v. Ealstead, Busb. 311. 73. In ejectment, the plaintiff's lessor must recover, if at all, upon the strength ofhis own legal title, either as being in itself g 1 against all the world, or good against the defendant by es- toppel. Taylor v, Gooch, 3 Jones, 467. 74. A possession of seven years, under color of title, gives a good title against all the world, except the State, and a subse- quent possession of thirty years maks a good the title against the State, although a large part of this thirty years possession was adverse to the person suing, who will not be entitled to the be- nefit of it, as against the Slate, if her right is saved from the ef- fect of it as to the possessor, by the accumulated disabilities of infancy and coverture. Ibid. 75. An interval of "tweh e months or thereabouts," in the ac- tual, occupation of land, is fatal to a title based upon an alleged adverse possession of seven years under color of title. Ward v. Herrin, 4 Jones. 23. 76. Where the only question in an action of ejectment was, whether there was an o title superior to that of the plaintiff, it was heldto be immaterial to consider whether the defendant could connect himself with such outstanding title or not. Gleggv. Field*, 7 Jones, 37. 77. An adverse possession of seven years under color of title, against a trustee, will confi o ood title not only against him but against the cestui que trust, though she may be an infant and under coverture. Wellborn v. Finley, 7 Jones, 228. 78. Where A mortgagi d his land for a term of years, and then assigned the equity of redemption, and the mortgagee permitted an adverse claim, under a color of title, to ripen into a good title by adverse possession, it was held thai the reversioner, on the pay- ment of the purchase money and a reconveyance of the term, was yet barred ofhis entry until alter the expiration of the ten a. Ibid,. 71». Where a bill was hied to settle all litigation concerning the titles to several tract i of land bhat ha< confused by the non-payment of mortgage money, and adverse claims under junior grants, and one ol is was withdrawn from the litigation, it was held that n d 'cr< > . as to the remaining tracts in controversy, did not prevent an adverse possession of the tract withdrawn from the suit from ripening into a good title as to that. Ibid. 80. The obligee, in a bond to make title to land, who goes into possession under a parol agreement, that he is to occupy the premises until the money becomes due, is but a tenant at will to the obligor, and cannot maintain ejectment or trespass against, the latter, or one taking title from him. Hichardson v. Tliorntcm, 7 Jones, 458. EJECTMENT.— Vm.-IX 393 See (Alien — When an alien can, or cannot sue in this State, 3.) (Estoppel— By 1 teed, 2(5-33.) (Estoppel— Rv matter other t dan by recorder deed, 2-16-24-25-33-34-36-37-38-39-40-42.) ( Ex- execution — Purchaser at an execution sale, 42-43-44.) (Mort- gage, 11-23.) (Tenants in common, 7-9-10-18-20-26-27 28.) XT. OF THE DEFENCE, .VXD HEREIN OF THE CONSENT BCLE. 1. The defendant in an ejectment will not be allowed to defend only as to so much as the plaintiff can prove him to be in pus- session of. Carter v. Branch, lHay, 135, (155.) 2. If the defendant defend for that part of the land, of which he has been in possession for seven years, and also of a part ad- joining, of which the plaintiff has had possession,, the whole defended for shall be deemed one tract, of which, as both have ..had possession, the legal possession shall be in him who has title. Oil. by Hay wood, Symondsv. Trueblood r 2H&j., 235,(417.) 3. In all ca , itment, whether the consent rule be gen- era) or special, the lessor of the plaintiff is bound to prove the defendant in poss :ssk>ii of the premises he seeks to recover. Al~ hertson v. R ding, 2 Murph., 283, S. C. 1 Car. L. R., 274, (28.) 4. If the defendant neither claim the land, nor have the pos- session i, ma; enter a "disclaimer, when called upon to plead; and if he be unable to decide upon a view of the whether he is in possession of the lands claimed by the plaintiff, he may enter into the common rule, and also have leave to dis- claim, if he should afterwards discover upon a survey, that he ought to do so. Ibid. 5. The general rule in ejectment is, 1jiat the defendant must be proved to be in actu I ; ion, notwithstanding the con- sent rule; but if a defendant, before suit brought, admit himself to be in possession, and b< nes a defendant to try the title, proof o; rission will be sufficient, as in his possession, to sustain the action. Mordecai v. Oliver, I! Hawks, 479. 6. Where erne, upon his own motion, procures himself to be ndant to an ejectment bronghl against anotln i offers no newplea or evidence of title in himself, it is pw that he adopts the plea and defends the title of his co-defeii Gforkam v. Bremon^ :'. Dev., 174 7. Although the ejectment is bound to prove the person he makes defendant to be in possession, yet where one procures himself tube made defendant, thte plaintiff is not bound to prove him in poss- ssion; and even it such voluntary defend- ant be proved not to. be in possession, still the plaintiff will be entitled to a verdict. Ibid. 8. When a landlord makes himself defendant to protect the possession of his tenant* the plaintiff cannot, on the trial, proves 394 EJECTMENT.— IX. other trespasses committed by the landlord himself. Carson v. Burnett, 1 Dev. and Bat., 546. 9. By entering into the general consent rule, a tenant in com- mon admits the ouster of his companion. Tt> avoid such admis- sion where there has been no actual ouster, he must apply to the court, upon affidavit, for leave to enter into a special rule, re- quiring him to confess lease and entry at the trial, but not ous- ter also; and this special rule will be granted; when the tenant does not dispute his co-tenant's title; but when lie does dispute Ids co-tenant's title, he shall be compelled to conf ss lease, entry and 's title to be paramount to A's and that he, B, was tenant of D. — Jordan v. Marsh, 9 [red, 234. 22. Where a defendant in an execution is sued in ejectment by the purchaser under that execution, he is- not prevented from contesting the right to recover, unless the execution was a valid one. Smith v, Furr. 10 Irech, 37. 23. In the action ofjgectment, one, who-comesin as landlord, is generally to be taken as admitting possession, of all the lam! described in the declaration, to have been in the tenant, and to be in himself. Bu1 when the declaration embraces severaraacts, held separately by different tenants, the admission of possessiop by the landlord should lie referred only to the' tract occupied by the tenant on whom the proi ess was served. King v. Britiain, 10 Led, 116. 24. In an ejectrnenl brought by a purchaser at a sheriff's sale against th rl fen laht in the execution, the latter, while still in possession, cannot resist a recovery, upon the ground that he, the defendant, has a better title. Li/irli/y. JVJieeler, 11 Ired , 288. 25. Where the lai d of a debtor has been soft} under execution, and ejei broug-ht to recover possession, he has no rigtit to object that the sheriff has 1101 made the deed to the pm> chaser at \ contract, Bronlcsv. Batdifi 1! [red., 321. 2(i. The rule is well established in ejectment, that when a person is a duel ted by the court to defi nd as landlord, which, he has a right to claim, he stands in the place of his tenant, and can make no derence which the tenant could not have made. Wig- gins v. Reddick, 11 [red., 380. 27. Where A lives upon land together with B, who claims the title, and the land is sold under an execution against A, in an action of ejectment, by the purchaser, under the execution against A, the latter cannot protect himself by setting up the title of B. But (by oue of the Judges) if B, in such a case, after judgment; can satisfy the court by proper afhVhivits,. that he had a honafnh ETECTMEKr.— IX 397 claim of title, and is in poseegeioiij the court has power to order the writ of possession not to be issued, until the plaintiff brings an action of ejects^ A atgemsit himv Judge v. Houston, 12 Ired., 108. 28. When a per . ■ land is subject to a levy, under which it is afl 1, he stands in no better situation, in defencbbig an ejectrnenl tha -d ibtor, win is.- place he lias taken. Carson v. Smart, 1 : 2'.'. lu England, at common few, a failure of th< confess, atth trial, I ase, entry and; ousti i ace igto the con- sent rule, the fessor of tin plaintiff was non si it '. th iugh he mighl aft rwards signjudgim at against the ca r; but in ce, where the judgment is- entered ii me court v.-lii ■!■■■ I I iigs ar< ii - up and the trial tal e, the I ion-suited, but has his ji Lai ejector. Johnson v. J;'. ;ood defenci igahasl th tion of ej mt that : 'I lainl lit' I,;.-, siaee its eon p ' pre rises; but su* b fi ti Jo, WHIT OF POSSESSION. 1. Where a judgment was taken by default against a casual ejector, and a writ of possession executed, the judgment was set aside upon the payment of full costs, by the tenant in poss- ession, who was made defendant, and he had, thereupon, a writ EJECTMENT— X. 399 to restore him to the possession. Mcllwene v. Shine, Mar. 54, (52.) 2. On a disclaimer, the plaintiff may take out execution for the part disclaimed. Squires v. Riggs, 2 Hay.. 150, (326.) .'). No formal judgment is required, in this State, in an action of ejectment, more thanin any other action; if the judgment be entered as in other similar eases, it must be deemed sufficient. — Murphy v. Gi tow, 2 Murph, 238. 4. W" 1 1' -ii a judgment has been given against a defendant, be- iriven bond and security for costs as required by law, and the plaintiff put into possession by a writ for thai purpose. uiKin good canst' shown to the court, at the next term. By affidavit, the judgment may be set aside and the defendant restored to the land, with permision to plead upon giving the |eci irv bond and security. Beany v. PiUey, 2 Car. L. R., 444, (329.) 5. Judgments by default againsthe casual ejector will be set aside, when the declaration has not been served on the tenant in possession. Bh hoe. v. fVilson, 2 Dev., M14. 6. Where a general verdict is found in an action of ejectment, ; lent, that the plaintiff recover his term, is proper in point of form. Bronson v. Paynter, 4 Dev. and Bat., 393. 7. Upon a judgment by default against a casual" ejector, if it be shown to the court that there are other persons in posses- sion, holding parcels in severalty, judgment will not be allowed for the whole' tract sued for, bill only for the part of which the person on whom] the declaration was served, was in -ion. Thomas v. Orrell, 5 Ired., 569. 6. A plaintiff may recovi r in ejectment upon the di mise of Only on i oi al tenants in common, to the extent, of his inter- est; and there may be a general verdict and judgment that he ri ver his term, as the plaintiff will proceed at his pi ril under the writ of possession. Shaw v. Shepard, 6 Ired., 361. 9. In I lie jury may find the precise interest of the lessor of the plaintiff and find the defendant guilty as to that, and judgment shall I titered accordingly Lenoir v. South, 10 [red., 237. 10. When the real plaintiff in ejectment is a tenant in com- mon, thougl i Luc for the whole, he has not an abso lute right to have a verdict for the whole, but the jury may 1 such a verdict, leaving the plaintiff to take possession at his peril. The more correal course, however, is when the ex- tent of the 1 I in be seen with reasonable certainty, to set forth in the verdict the undivided share, to which the title was apparent; and to enter the judgment accordingly. Pierce v. Wanett, 10 Ired.. 11. If, in ejectment, the lessor die, the suit will not abate, but a judgment may be rendered, though, when the lessor was only 400 EJECTMENT.— X.-XI. a tenant for life, the court will not award a writ of possession. Wilson v. Hall, 13 Irei t 489. 12. When the deceased lessor claimed a fee, judgment may be rendered as if he were alive: and a writ of po ion may be awarded, though it will be under the direction and control of the court, as to the persons entitled to be put in, as heirs, by the sheriff. Ibid. 13. Where the defendants arc some of the heirs of the de- er;!:-!'. I lessor, the proceedings under the judgment ami o\< cation should he accordingly modified, by not putting the de< alants out of possession, but by putting in the other heirs with them. Ibid. 14. If a plaintiff in ejectment shows title to any par. of the land contained in his demise, frhich is in the deli ,,,i ml' posses- sion, the jury may render a general verdict. Or they may. under the direction of the court, find sp< ci illy, so as to enable the par- tics to run their lines. McKay v. Glover, 7 -Tones, 41. 15. Where there was two counts in an action of ejectment on the demises of several heirs at law, and a general verdict was rendered, giving nominal damages, 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 urn th I the plaintiff was, nevertheless, entitled to his judgdment on tin he other lessor. ( lildersv. Bnmgarn< r, ■'■ Jones, 297. It'). A judgment that the del over his costs, from the lessor i lintifi in an ;■■ I when 1 he plain- e suit, and an executio i lied i, were held to be proper. Bl ■ right, 1 Winst., 89. 17. After a plaintiff in ejectment has obtained a jndgmeivl against the tenant in possession, upon v tion has anol be deprived of the fruit Igrnent by an order of the court to stay the writ of po: ses :ion, on tl e suggestion that the title was in some other person. '<'■, h i v. Worthy, 1 Winst., 114. Si e ( Ejectment — Of the declaration, 11-12.) (Ejectment — Of the defence and herein of the consent ruli . 29. ) XI. TRESPASS FOB MESNE PROFITS. 1. The action of tresspass for mesne profits does not accrue. until possession is given, after judgment in the action of eject- ment, and from that time only the statute of limitations begins to run. Murphy v. Guion, 2 Hay., 145, (318,) 162, (347) and 381, (580.,) S. C, 2 Murph., 238 ami 1 Car., L.l.\, 95, (12.) •2. Where an action of trespass tor mesne profits was la-ought two years after the decision of the action of the ejectment, in which the demise had expired before the decision; held that the plaintiff was entitled to recover for the wiiole time, from the EJECTMENT.— XI. 401 commencement of the demise to the taking possession; it being eleven years. Murphy v. Ghrion, - Murph., 238. 3. After a plaintiff in ejectment has obtained judgment and been put into possession, it is too late for the defendant, when sued for the mesne profits, to object that the demise had expired before the judgment in ejectment Ibid. 4. If ejectment be brought against one who dies pending the action, and the guardian of the infant heirs, Upon a sei. fa. to make them parties, comes forward and in their names defends the suit, and receives the rents and profits of the land during the suit, the plaintiff may, upon a recovery in the action, sus- tain trespass tor the mesne profits againsl such heirs. Molton v. Miuuford, •"> Hawks, 483. 5. An action of trespass for mesne profits may be brought against an administrator, to n cover profits received by an intes- tate in his life time; and the record of tne recovery against the heirs, against whom the suit had been revived, will be evidence for the plaintiff in the suit against the administrator. Molton v. MUer, 3 1 lawks, 490. 6. It seems that in an action for mesne profits, the jury may consider, in mitigation of damage ;l improvements, honestly made by the defendant, and actually enjoyed by the plaintiff. Dowdv. FaucetL 4 Dev.. 92. 7. In trespass for mesne profits, the record of recovery in snt is conclusive evidence of the title of the lessor of the plaintiff at the date of the demise ; but it is no evidence at all that the defendant's possession commenced at that time, or at any time before the commencement of the action of ejectment; and the fact of its having commenced earlier than the last men- tioned time must be proved aliim.de. Poston v. Jones, 2 Dev.and Bat, 294. 8. The record of the recovery in ejectment is conclusive in tin : ii for mesne profits, to establish the defendant's possession's at the commnecement of the ejectment; and it is also prima facie evidence of that possession being continued till the judg* .■lid execution ; 1 nit the defendant may, on the contrary, show that his possession terminated earlier than that time, under such circumstances as to relieve him from further liability. Ibid. 9. 'Whore a recovery in ejectm ad is effected on the demises of two only of several tenants, and afterwards an action is brought for mesne profits, none but the shares of such mesne pri i s to which those two tenants are entitled can be recovered; and it makes no differeu er the action for mesne profits be brougMt in the name of the fictitious lessee, or of his lessors. Hold) v. Shepara, 9 Ired., 222. 10. A plaintiff who has recovered in an action of ejectment, has no right to seize upon the produce of the land, which was severed before the writ of possession was executed. 26 402 EJECTMENT.— Xl.-XII.— ELECTION— I. His remedy is by an action for the mesne profits. Brothers v. Hurdle, 10 lied., 490. 11. Where a recove^r is had in ejectment, upon the several demises of different persons, all the lessors may unite in a joint action for the mesne profits. Camp v. Holmesly, Hired., 211. 12. A recovery in ejectment will not support an action for the mesne profits, unless the lessor has regained thepossession, either by being put in under process, or by being let in. Post&nv. Henry, 11 Ired., 301. 13. Where a recovery in ejectment is upon the demise of one of several lessors, putting ani >r in possession does not entitle the lessor, upon whose demise the recovery was effected, to an action for the mesne profits. Ibid. 1 !. Although in ejectment the usual course is to recover nom- inal damages, leaving the real damages to be recovered in the subsi quenl ai tion of i respass for - 1 profits, yet it would not be error to direct that the actual damages should be assessed in the action of ejectment, the division of the actions being merely for convenience. Miller v. Mt Ichor, 13 Ired., 439. 15. After recovery in ejectment, an action for mesne profits may be brought in the name either of the nominal plaintiff, or of his lessor, but it cannot, he brought in the name of both jointly. Blount v. Lunsford, Busb., 401. Hi. Where the plaintiff, in ejectment, after recovering in that action, failsto take actual possession of the premises recovered, although the defendant has left them, he cannot sustain an action of trespass for the mesne profits. Carsonv. Smith, J< nes, 106. 17. One, who comes in as underlessee to thedefendant in an action of ejectment, pending the action, is bound by the pro- ceedings hail therein, ami. consequently, is liable to the action for mesne profits. Bradley v. McDaniel, 3 Jones, 128. XII. WHEN TUE ACTION ABATES. See (Abatement — By the death of parties, 1-10-11.) ELECTION. II. Election between inconsistent benefits. | II. Election oi public officer?,. I. ELECTION BETWEEN INCONSISTENT BENEFITS. 1. The doctrine of election, by which a person is prohibited from taking a benefit under a will, and at the same time disap- ELECTION.— I. -II.— EMBEZZLING, &c. 403 pointing the plain provisions of that will, in favor of third persons, is confined to courts of equity, and does not affect titles at law. BeU v. Culpepper, 2 Dev. and Bat., 18. 2. The acceptance of a legacy under a will cannot, at law, :i the legatee from setting up any claim, which he may have to property beqiiLM i, in the same will. Alston v. Ha tdin, 2 Dev. and Bat., 115. II. ELECTION OF PUBLIC OFFICERS. See (Clerks and Clerks and Masters — Of their election or ap- pointment.) (Constables — Of their election or appointment.) (Sheriffs — Of the election of sheriffs.) EMBEZZLING. See (Indictment — In what cases an indictment will lie, 1.) EMBLEMENTS. 1. The remainderman is entitled, if the tenant for life die before the- crop is planted; but in an action on the case under such circumstances, lor use and occupation, the defendant ought to be allowed for his labor in preparing the ground for tillage. Gee v. Young, 1 Hay., 17, (23.) ENLISTMENT. 1. Under th> act of congress, regulating the enlistment of soldiers in the army of the United States, when the father is dead and the son is without guardian or master, the consent in writing ol the mother, if she be alive, is necessary to make a va- lid enlistment of the son, if he be a minor; and such minor, en- listing without such consent, may be discharged upon a writ of Juibtas corpus. Ex parte Mason, 1 Murph., 336. 404 ENLISTMENT.— ENTRY. 2. A soldier, who is under arrest and in confinement, for a vi- olation of orders, cannot procure his discharge by means of the 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 a civil tribunal, while he is in custody and amenable for trial before a military tribunal. Ex parte Graham, 8 Jones, 416. 3. Whether a minor of the age of twenty years, who enlisted under the act of 1860, 1st extra session, ch. 6, and has taken and subscribed the oath prescribed on such enlistment, is entitled to his discharge on the ground of nonage, and that he enlisted without the consent of his guardian, qucere ? Ibid. See (Habeas Corpus, 8-'.).) ENTRY. 1. Rocks in a river, above the surface of the water, are vacant property, subject to our entry laws. Jones v. Jours, 1 Hay, 488, .(56:;.) 2. Lands lying in one county cannot be entered in another. — Avery v. StrotJier, Conf. hep.. 43!, ( 196,) (See Rev. Code. ch. 42, sec 27.) 3. Entries of lands lying within the Indian boundaries are void. Ibid. 4. No cases in relation to the entry of vacant lands are oper- ated upon by the act of 1779, authorizing caveats, except those whit h arose from the discontinuance of the land offices. In all other eases, the' first enterer must prevail. McNeil v. Lewis, N. C. Term, R. 80, (517.) 5. The acts of limitation in regard to land titles arc found- ed upon the presumption thatagrant onqJ§ existed, and has been lost; but in a caveat both parties admit the land to he va- cant, and tiie question is, to whom shall a title be made. Ibid. 6. Land covered by an arm of the sea,, onlyat high water, may be entered and granted, and the grantee may maintain an ac- tion of trespass quare clausum /regit for taking oysters from rocks within the grant, McKenzie v. Unlet, N. C. Term, R. 181, (613.) 7. Entries made by entry takers, otherwise than the act di- rects, are void. Terrell v. Manney, 2 Murph, 375. (See Rev. Code, ch. 42. sec. 16.) 8. If a navigable lake recede gradually and insensibly, the derelict land will belong to the riparean proprietor, but if the re- ENTRY.— ESCHEAT.— ESTATES TAIL. 405 cession be sudden and considerable, the derelict land will belong to the State, and be subject to entry and grant. Murray v. Ser- mon, 1 Hawks, 56. 9. Lands covered by navigable waters are not subject to entry and grant, under the entry laws. Tectum v. Sawyer, 2 Hawks, 226. 10. An entry of land is a mere equity to demand a grant, upon payment of the ptfrchase money in due time, and is not noticed m law except in cases of caveats under the act of 1777, which arose upon the discontinuance of the land offices; and, upon a proper case, one who first enters land lias relief in equity against another, who obtains a grant for it with notice of the entry. — Featherston v. MUls, 4 Dev., 596. L. P., a Kelly v. Clayton, 2 Dev. and Bat., 24$. See (Ejectment — Entry when necessary, and its effect.) ESCHEAT. 1. The word "escheat," used in the grant to the university of all eschjeated property, eriSbraces every case of property, tailing to the State for the want of an owner. GUmowr v. Kay, 2 Hay, 108, (265 ) ESTATES TAIL. 1. The act of 1784, (Rev. Code, eh. 43, see. 1,) barred a remain- der, dependent upon an estate tail in possession of the tenant in tail at the time of the passage of the act. Lane v. Davis, 1 Hay, 277, (319.) 2. Tenant in tail sells land in 1778 and dies, leaving a larger estate in land -to his son; the son is barred both by the warran- ty with assets descended, and the express words of the act of 1784, ban-rag entails. Minge v. Gilmour, 1 Hay.. 279, (322.) 3. If tenant in tail had sold land in fee simple before the act of 1784, and the purchaser was possessed of the land at the pas- sage of the act, he came within its provissions, and was entitled to the fee simple, though the entail had expired before that time. Quaere. Moore v. Bradley, 2 Hay, 142, (313.) 406 ESTOPPEL.— I. ESTOPPEL. ' I. By matter of Record. I III. By matter other than by record or II. By deed. deed. I. BY MATTER OF RECORD. 1. A judgment for dower is no estoppel to creditors. Paul v. Ward, 4 Dev., 247. I 2. A final judgment in a petition for partition of real e tati under the act of 1789, is conclusive upon all the parties to it; and each party is estopped to dispute the title of any other to the lot assigned to that other in severally. Mills v. Withering Inn, 2 Dev. and Bat., 433. 3. A being entitled to a distributive share in certain slaves belonging to an intestate's estate, before administration granted conveyed to B, by deed, certain slaves spe ifieally and by name. After letters of administration issued, B, who was also one of the next of kin, joined with A and the other next of kin iD a petition against the administrator for a settlement of the estate and a division of the slaves, and the slaves, which had been con- veyed by A to B, were, undef the tition, allotted to A ; and it tons i ' . i byB against A t" reco 1 .'i s, A was estopped from denying that : prtle to the slaves at the time she conveyed them ; and that B was apt esto > d by the proceedings on the peti ing hi list A. Posh v. Zen, 10 Ired., 410. 4. Where a fact has I agr • ■[ on, or dee urt of parties thereto shall thei allowed Lesti >n, so long as the tent oi unreverse I. A,-, i , tnd B filed their petition in tiie coun- ty court for a partition of slaves, alleging they were tenants in I , ree made, >ort of comii i unrated, A sold his share, it wa ■ a suit between A's B, for the share of A so sold, B w; i from denying A's title, though it should appeal in truth. tenant in common, but that the share allotted to him belonged to B, en aut< r droit. And as B was ing title tit, a fortiori it was n6 defence for him that the dis- puted outstanding in a third person. Armjieklv i Busb. 157. S. P. Fansliaw v. Fanshato, Busb. 166. 5. Where, in a peMtion for the sale of land for partition, the description is of the lands of the ancestor of the parties, and there is a decree of the court of equity for the sale of the lands " mentioned in the petition," suchjlecree is not sufficient to estop one of the parties, claiming by a deed from the ancestor; and a deed filed by the del'endant in that suit, under an order of the ESTOPPEL— I. 407 court, but not in any way incorporated in that proceeding, will not render the description or the decree more certain. Morrison v. Laughter, 2 Jones, 354 6. Where, in an action of trespass quart davsum fregit, the defendant pleaded the general issue of "not guilty, ' and also the special plea of "liberum tenementum," and the jury found all the issues in favor of the defendant, upon which he had judge- ment entered for him, it ivas held, (Nash G. J. dissenting,) that the plaintiff was not thereby estopped from bringing another action for a trespass by the defendant on the same land. Boijers v. Satcliff, 3 Jones, 225. 7. Where an action was brought for the breach of an entire covenant, in which the plaintiff was entitled to recover the whole damages, prospective as well as those which had accrued before the bringing of the suit, hut he was restricted by an erroneous decision of the court below to the latter; it-was held, that he was estopped, nevertheless, from bringing another suit or recover the damagi s subsequently accruing. He ought to have appealed from the erroneous decision in the first suit. Window v. Stokes, 3 Jones, 285. 8. Proceedingsin the garnishment of one creditor, where there was an issue and a verdict that there were no funds in the de- fendant's hands, beyond a. certain amount confessed by him, create no estoppel upon an issue to try the same fact in another garnishment in behalf of another creditor. SpruM v. T 5 Jones, 39. 9. In a suit to recover back money paid for the purchase ol i ' promissory note, taken without endorsement, it is no estoppel that the purchaser nad obtained, in the name of the Beller to his use, a judgment against the ostensible maker. White v. Green, 5 Jones. 47. 10. A joined in a suit for the partition of slaves, in which i certain one was assigned to C. A became the administr other, and < such by B, who charg d him with ive as assel - if his brother's estate; ami it was si i adjusted by the court. Th rwards got back into the hands of r i1 as ad ; - ti ator of a person claim- slave under the title of G; and i held, that H ert the title under C. Houston v. Bibb, 5 83. 11. Where the plaintiff had recovered damages in an action of trespass , fregit, to which the defendant had 1 '-not . . guilty," and lih/r.nn /i-niinrnfri,;.'' and afterward brought ejectment against the same defendant for the same land, if was hem that the defendant was not estopped to deny the plaintiff's title, for it was the defendant's title, and not the plain- tiff's, which was put in issue in the first action, and in ejei tment the plaintiff must recover upon the strength of his own, and 408 ESTOPPEL.— I.-II. not the weakness of the defendant's title. Stokes v. Fraley, 5. Jones, 377. 12. Where a defendant in an action of ejectment has been evicted under a judgment and writ of possession, he is not es- topped, on making an actual entry, from maintaining an action of trespass qua/re clausum /regit, and, on showing title, he may recover for trespasses committed after the termination of the former suit. White v. Cooper, 8 Jones, 48. 13. Where the person "who has been thus evicted, enter- ed into possession, he will notwithstanding the presence of the pffcty who evicted him, be considered, by the jus postli- minii, to have been in possession all the time from and after the date of the eviction. Ibid. 14. Where an administrator petitioned for the sale of his in- testate'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 de bonis non to recover a sur- plus over and above the debts, it was held, that the decree did not estop the persons entitled to the surplus, from showing the true amount of the debts, although they had been made parties to the petition. Latta v. Rum 8 Jones, 111. 15. All the parties, to a suit in equity for the partition of slaves, are estopped to deny the right of each other taking under the decree. Dixon v. Warters, 8 -Jones, 4 19. 16. A person, who has made a deed of gift, void by the act of 1806 (Rev. (.'ode, eh. ">0, see. 12,) is not estopped by the record of a partition of the slaves in a suit, some of the parties to Which, being minors and his wards, sued by him as their guar- dian. Branch v. Goddin, 2 Winst", 10.3. See (Arbitration and Award — Construction of submissions and awards, 7.) (Grant — How and when grants may be avoid- ed, 14.) (Recognizance, 24.) H. BY DEED. 1. A defendant in ejectment, to rebut the plaintiff's title, pro- duced sealed articles of agreement, by which the plaintiff bound .himself to convey the land to the defendant on payment of the price, held that the plaintiff was not estopped by the articles, though under seal, for they did not amount to a deed for further assurance. Anonymous, 1 Hay. 331, (380.) 2. Estoppels run between parties and privies; therefore, when defendant formerly claimed by deed, under the person the plain- tiff now claims under, he may now deny, as against the plaintiff, that such person had title, and he is not estopped as against the plaintiff, who is neither party nor privy to the defendant's deed, though had defendant produced that deed on the trial, it would have estopped him. Gray v. Harrison, 2 Hay, 292, (477.) ESTOPPEL.— II. 409" 3. A, having' entered a fa-act of land, conveyed it to B in 1780, and to G in 1784. In 1782 the land was surveyed, and the grant from the State issued to A in 1792. C, upon his purchase, entered and kept possession for seven years before the grant issued, and then B brought ejectment against him lor the land, hdd that he could not recover; for though A might be estopped to claim against him, yet. as there was no pivity between him and ( '. the latter was not estopped. A court of law cannot take any notice of B's title in an ejectment, against any person but A, who would be estopped to deny it. Langston v. McKinnie, -2 Murph., (i7. 4. Executors are not estopped to claim lands in a deed, which they have endorsed and attempted to confirm, under an express reference to the powers confided to them by the will of the testator. Hendricks v. MendenhaU, 2 Car. L. L\, 569; (371.) 5. A being much indebted, with a view to defraud his cred- itors, exchanged a negro girl with B for a hoy, who was con- veyed by a hill of sale to A's son. Afterwards C purchased the boy of A and sold him to B, who sold him to the defendant, In an action for the slave brought by A's infant son against the defendant, it was hdd that he was not estopped by the bill of' sale from B to the plaintiff, from showing that the conveyance - Was fraudulent, and that he was a bonafide purchaser. Moore v. WUHs, 2 Hawks, 555. _ 6. A witlow remaining in possession, as such, of lands occupied by her husband in his life time, is hound by an estoppel which bound her husband. BuJferJow v. Newsom, 1 Dev., 208, S. P.. Gor/iiim v. Brenon, 2 Dev., 171. 7. A jury cannot find against an estoppel, and if they do the- court will disregard the verdict, except where the parly, entitled to the benefit of the estoppel, has waived it by mispleading.. Ibid. 8. A sheriff's deed for land sold by execution, passes the estate by estoppel against the defendant in the execution. Gor- hani v. Brenon, 2 Dev., 174. 9. One claiming title under a party, who- is estopped to deny the title of the plaintiff, is also bound by the estoppel. Phelps v. Blounf, 2 Dev., 177. 10. Neither party to- a deed of bargain and sale is estopped to show that one of the bargainors was a/erne soZe,. although the deed recites that she was covert. Brinegar v. Cliqffm, 3 Dev., bis. A party to a deed is not estopped by a recital, unless the fact recited lie the moving cause for the execution of the deed. As if the recital he that he is seized in fee by purchase from C, here neither the bargainor nor the bargainee is estopped from averring and proving that he is seized by purchase from D, unless it appear that the seizin, in fee by purchase from was part of the 410 ESTOPPEL.— II. contract, without which it would not have been made ; for ordi- narily the seizin only is of the essence of the contract, and how and from whom* derived are only circumstances. Ibid. 12. If any interest, however small, passes by a deed, it creates no estoppel. Ibid. 13. Where, to debt on a bond for the payment of purchase money, the defendant pleaded performance, and offered, in proof of his plea, an acknowledgment of payment and a release in a bill of sale, it was held, that as he had not pleaded the release specially, it was mere evidence, and the plaintiff was not estopped to prove the contrary. Woodhouse v. Williams, 3 Dev., 508. 14. He who relies upon an estoppel must plead it specially, or the jury may find the truth. But if, from any cause, the estoppel cannot be pleaded, the jury are bound by it. Ibid. 15. An assignment of a term, like any other conveyance, may take effect by estopel between parties and privies, and thus legally operate to transfer the estate of the assignor, although he was not in possession when the assignment was made. Givyn v. Wellborn, 1 Dev. and Pat., 313. 16. A person, claiming title under one who is estopped, will also be estopped. Sikcs v. Busniqlit, 2 Dev. and Bat., 157. 17. He, who claims land by estoppel, is, as to those estopped, in the constructive possession of the, land; and, in an action of trespass, no one, who is bound by the estoppel, can prove a su- perior title in a stranger, unless the court be satisfied that such ser, at the time' he enti it claim title under the by which he is estopped; in which case the evidence would ' jbe" admissible to show, that he was accountable in damages to the stranger who had the better title, and not to the plaintiff. Ibid. 18. Where a party is estopped by his deed, all persons, claim- ing under or through him, are equally bound by the estoppel. . llexandt r. 4 I lev. > d Bat., 40. 19L An agreement, made '■■; bwo p ons in possession of a tract of land, under a joint ■ ' ;> which they acknowl- edged under their hands ami seals, that they were tenants in common of all the lands which they had purchased from their said vendor, estops both of them from denying that their ven- dor had title to the land, and also estops each from averring any antecedent matter to show that the other had no title. Boss v. Durham, 4 Dev. and Bat, 54. 20. The State is not bound by an estoppel, nor is a grantee from the State estopped from averring what the State, from whom he claims, is at liberty to assert. Candler v. Immsford, 4 Dev. and Bat., 407. 21. Where the husband of a woman, wdro was entitled to a contingent remainder in slaves, before the contingency happened conveyed the interest by deed, it mas held, that the deed was an ESTOPPEL.— II. 411 estoppel to the husband and that, when the contingency after- wards happened, in the life time of the husband, by which the interest became vested, such interest passed to the grantee, either upon the principle that the interest, when it accrued, fed, the estoppel, and thereby gave an absolute title, or that the deed operated as a release of the wife's clwse In action. Fortescue v. Satterthwaite, 1 Ired., 566. 22. A deed not only estops the grantor, but all who claim under him. Gilliam v. Bird, 8 Ired., 280. 23. The doctrine of estoppel does not apply to the sovereign, nor to the assignee of the sovereign. Wallace v. Maxwell, 10 Ired., 110. 24. Where one conveyed to a trustee, for the purpose of paying his debts, all his interest in the goods in a certain store, his books, notes, accounts, &c, and the trustee sold the whole at public sale fir a price upon which he fixed; it was held, that the person, who made the conveyance, being present at the sale and not objecting, was bound by it, at least at law, however irregular the sale may have been. Lamb v. Good/win, 10 Ired., 320. 25. Estoppels must be mutual, and bind only parties and privies. One, who is not bound by an estoppel, cannot take ad- " of it. Griffin v. Richardson, 11 Ired., 439. 26. Where A conveyed land to B, and subsequently remained i'i tJ ■ actual adverse possession for more than seven years, it !, that A was estopped from recovering, unless he could show some c lor of title acquired after his conveyance to B, and that his ion was under that color of title. Farlow, 13 Ired., 84. 27. If A could have shown that his colorable title and d after his deed to B, that deed would not have estopped him; because the title so claimed would not have b i lent with that he conveved to B. Ibid. 28. A "widow continuing in possession of land is estopped to deny the title derived under her husband's deed. 221. 29. equallj ■; ipped as to two adverse claimants, so as to lie concluded when sued by either. Thus, where a widow, in possession claiming dower, was estopped by a deed given by her husband, she cannot remove the estoppel and defeat the 1 i u i g up her possession to one claiming under a , rior to the deed, and then immediately resurjag ing the poss ssi >n under him. Ibid. 30. Where A takes a deed from B, for apart of a tract of land, they are botH estopped by such deed from denying that B had title as to that part, and that it passed to A; but such es- toppel does not extend to the other part of B's land. In an 412 ESTOPPEL.— II, action, therefore, against A for trespassing on this omitted part, B, in order to recover, must show some other and better title than can be derived from the estoppel, if he have no actual possession of the locus in quo. Kissom v. Oaylord, 1 Jones, 294. 31. If land be sold under a justice's execution, and do not bring enough to pay the debt mentioned in the execution, it cannot be again levied on and sold under a judgment of the court, entered for the residue of the debt, under the act, Rcv~ Stat., ch. 45, sec. 9, and if the vendee of the purchaser lie ad- mitted to defend as landlord in ejectment against the debtor, the rule estopping him, or his landlord defending in his stead, from denying the purchaser's title, acquired under the sheriff's deed, does not apply in favor of the purchaser under the second wale, Smith, v, Wore, 1 Jones, 488. 32. A husband, who lias a remainder in slaves, in right of his wife, after a life estate in another, cannot pass the title during the life estate; but if, during such life estate,*the husband and wife make a deed for the slaves, ami afterwards the life estate fall in, the wife being still alive, the title will enure to the benefit of the grantee, by relation back, and will thus be per- fected in him by estoppel. Barwick v. Wood, .'i Jones, 306. 33. To raise an estoppel the admission must be certain. An estoppel, as a general rule, does not grow out of a recital; and to give it that effect, it must. show that the object of the parties was to make the matter recited a fixed furl, as the basis of the action of the parties. Hays v. AsJcew, 5 Jones, 63. 34. Where a person made a deed to another, purporting to con- veya life estate in an unoccupied lot of land, and the life tenant conveyed the same in fee simple; it was held that such purchaser was not estopped, by the rule in ejectment that where both par- ties claim under the same person neither shall deny his title, from denying the title of the first vendi »r, except as to a life estate, unless it be made to appear that he had a deed for the land, purl {lorting to convey him a fee, or that he was in- possession of the and claiming it in fee. Worsley v. Johnson, 5> Jones, 72. 35. A party, who is estopped by his own deed produced against him, cannot show a better title acquired by him from another person, subsequently to the execution of his deed. HasseU v. WaUcer, 5 Jones, 270. 36. The distinction in the particular above stated between the case of a strict estoppel, and that of the rule in ejectment, that where both parties claim under the same person neither shall deny his title, pointed out and explained. Ibid. 37. Where a husband and wife joined in a deed, purporting t<< convey a legal estate in fee in tin: wile's land,. in which he then had no interest, and the deed of the- wife was inoperative tor the want of a privy examination, it wots held that the assignment ESTOPPEL.— II.-III. 413 * to the "wife of a term that had been carved out of the estate (the reversion in ice being then in trustees,) vested the term in the hushaii 1, juts mariti, and fed an estoppel created by the deed of the husband. Wellborn v. Finley, 7 Jones, 228. 38. .V deed l>y B and Ins wife, reciting a conveyance of the legal estate A, a mesne conveyance to trustees in trust for a daughter of A, a marriage of B with the daughter, and recit- ing also that the bargainees were empowered by act of assembly to purchase land for a town site, but which is silent as to whether the trustee had conveyed the legal estate to the feme, and which then proceeds to "to give, grant, &c," the land itself, in the usual form, toasheld to purport a conveyance of the legal estate. Ibid. 39. Where -V conveyed a tract of land, to which he had at the time no title, but afterwards obtained a deed for it, and took actual possession of it. which he held adversely for more than seven years against all the world; ii was field that the grantee had acquired a title to the land by estoppel, but had again lost it by A's adverse possession for more than seven years. Eddie- man v. Carpenter, 7 Jones, 616. 40. Whtre it is shown that the deed, offered by one of the par- ties in ejectment, claiming under the same person with the other, is void, he is not estopped from denying the title of the other party. McDougaM v. McLean, 1 Winst, 120. See (Deed— Of the execution and date of a deed, 3.) (Deed— Of the construction of deeds and their varii >ns parts, 6.) (Ejectment — ( >f the title necessary to support the action, 59.) (Evidence — Parol evidence, when admissible, 13.) (Execution — What may be levied on and sold under execution, 40.) (Grant — How and when grants may be avoided, 14.) (Husband and Wife — How far the husband is bound by the acts of his wife, before and after marriage, 2-3.) (Release, 1-9.) (Tenants in com- mon, 12.) III. RV MATTER OTHER THAN IiV RECORD OR DEED. 1. If one tenant in common recover a judgment againt a co- tenant, and direct the execution to be levied upon a particular part of the land, he is estopped to claim a partition against the purchaser. JValbrv. Barnard, Conf. Pep.. 82,(214.) 2. Where both parties claim under the same person, they are privies in estate, and cannot, as such, deny his title. Therefore, where, in an ejectment, it appeared that the defendant had ac- cepted adeed from the person underwhom the plaintiff claimed. he was held estopped to deny title in such person. Murphy v Barnett, 2 Murph., 251, S. 0.1 Car. L. R., 106, (14.) 3. He who accepts a lease, and those claiming under him, are estopped during the continuance, from denying the title of the lessor. Sacarusa v. King, 2 Car. L. P., 451,' (336.) 414 ESTOPPEL.— III. 4. One who hires a negro from another, and thereby has ob- tained possession oi the negro, shall not dispute the right of the hirer, until he has restored the poss ssion. Dmaooodie v. Car- rington, 2 Car., L. R., 469, (355.) 5. A sale or pli dge of personal property, by one who has no title, in the presence of foe owner, without objection on his part, estops the latter from impeaching the transaction on the ground of his better title. Bird v. Benton, 2 Dev., 179. 6. The doctrine of estoppel has been beneficially applied to prevent tenants from denying the titles of their landlords, dur- ing the continuance of the lease, and also of the po gamed under it; but the estoppel is dependent upon the estate and the possession consequent upon it; and after the lease has expired, and the possession fairly surrendered, the lessee is re- mitted to any title he hadin the land, before the relation of land- lord and tenant commenced. Smarts. Smith, 2 Dev., 258. 7. Estoppels are not favored, and particularly those which arise from the mere act of a party, and from which a conclusion of law is inferred. Yarborough v. Harris, 3 Dev.. 40. 8. The rule that a tenant or bailee cannot dispute the title of his landlord or bailor, without surrendering the possession, is founded on a principle ■ vis, 4 Dev. and Bat., 300. 18. J he possession of a part of a tract of land, which one claims, is the possession of the whole, and. if while thus in pos- session cultivating a part, he makes a parol contract to buy the land of another, who also sets up a claim to it, and afterwards extends the fields which he had in cultivation, he cannot he con- sidered the tenant of the other, so as to estop him from dispu- ting his title; for an otter to buy a claim to land, which one - as his own. may be made for the sake of peace, through alarm or from misapprehension; and so far from being conclusive of the title, is very slender, if any, evidence of it. Hough v. Duihas, 4 Dev. and Bat., 328. 19. One claiming under a husband is estopped from showing title out of the husband and in a third person, to defeat the wife's claim of dower, nor can he, lor such purpose, avail him- self of a conveyance obtained from such third person, subse- quently to the commencement of the suit and his plea thereto. Norwood v. Morrow, 4 Dev. and Bat., 442. 20. Where both parties claim under the same person, the title i person i< not to be disputed between them, unless one of them can show a better title in himself. 1 bid. 21. The rule, that a lessee is estopped to dispute his landlord's title, extends to the case of one who takes possession under a contract of purchase; he cannot controvert the title of one who lets him into possession. Love v. Edmonston, 1 Ired., 152. 22. Neither "the tenant of land, nor any person claiming title by or through him, can dispute the title of the landlord to re- cover the premises in ejectment, after the expiration of the lease 416 ESTOPPEL.— III. upon the ground of a defect of title in the landlord. Calender v. Sherman, 5 Ired., 711. 23. Where A is the legal owner of a tract of land, and leases it to B, though the agreement for the lease may be. usurious, yet B is estopped, in an action of ejectment against him by A's heirs, from denying the title of A. King v. Murray, 6 [red., 02. 24. It is an inflexible ride, that whenever both parties claim under the same person, neither of them can deny his right, and thru, as between them, the elder is the better title and must prevail. Gilliam v. Bird, 8 [red., 280. 25. A street in a town, or any other highway, though now dedicated to the use of the public, may have been, and probably was, once the subject of private property, and therefore the or- dinary doctrine of estoppel will apply to it. Ibid. 26. Where an owner of a slave stands by and sees the slave sold by another, and makes no objection, yet he is not thereby estopped from asserting his legal title. West v. Tilghman, 9 Ired., 163. 27. Where a grandfather, since the act of 1806, made a parol gift of a slave to his -rand-daughter, and plaoed him in posses: sion of the grand-daughter's father, (with whom she lived,) as her property, andthejslave was always alleged by the father to belong to the grand-daughter; it was Jield that the father, and of course, every person claiming under him, were estopped to deny the grand-daughter's title 1 . Tarhington v. Latham, 11 Ired., 596. 28. The owner of a tract of land purchased at the Cherokee sales is estoppel to deny tin.' right of one, who has bought at a sale under an execution against him, though such purchaser at tlie Cherokee sales has not yet paid the State, and, therefore, has acquired no legal title. Hansuckr v. Tipton, 13 Ired.. si. 29. A lessee cannfef deny his lessor's title, until he is dis- charged from the estoppel arising out of his lease and posses! sion, by yielding up possession to his lessor. His acceptance of a lease' from another and acknowledgment of possession under him will not discharge the estoppel. He may be equally estopped as to each. Freeman v. Heath, 13 Ired., 498. 30. The doctrine of estoppel, as between landlord and tenant, does not apply to the la iter, when he has been evicted and sub- sequently let into possession, by a neAV and distinct title under another landlord. Gilliam v. 3Ioore, Bush. 95. 31. Where A conveyed to B by deed of mortgage, A retain- in-- the possession of the land, which was afterwards soldi under execution for his debt, and purchased by C, who entered, and nearly two years subsequent thereto demised the land to A, un- der a contract for the sale of it; it teas held, in a suit by B against A, that the latter was not estopped from disputing the title of the former, and that seven years possession, under color of C's title, was a good defence to the action. Hid. ESTOPPEL.— III. 417 82. An agreement made by a junior grantee, in relation to his possession of part of his land covered by an older grant, with the widow of the older grantee who continued in possession after the death of her husband; is evidence that she had an in- terest in the land, and had, therefore, the right to make the agreement; and, at all events, the junior grantee, and those claiming under him, are estopped from calling that matter in question. P>,-iiusl>., 44'J. 33. Although the rule is thai where both parties claim title linder the same person, each is estopped from denying that such person ha 1 title, yet this rule does nut prevail, where one ofthe can show a 1 letter title in himself. Copeland v. Sauls, 1 Jones, 70. 34. When both plaintiff and defendant in ejectment derive title under a person, once in possession, claiming the fee in the bad of land m controversy, neither is at liberty to show that such title is not still a good and subsisting one, unless one of the parties can show thai he has acquired another and a better title from seme ether person. Johnson v. Watts, 1 Jones, 228. 35. Where a pers in enters into a tract of laud, under :i writ- ten contract to purchase it, he becomes a tenant at will to the bargainor, and is estopped from denying his title in an action uf ejectment brought against him to recover the possession. Dowd v. Gilchrist, 1 Junes. ;;.">;!. 3G. In ejectment, where A and B both attempted to show title under < '. and the jury found that the dee 1 to II had never been ed, it was held that B could not be permitted to show- that C had conveyed the land in question to another person, be- fore he convey d to A; and this, not upon the ground of there being a technical estoppel, but because it was a rule of justice and convenience. Thomasv. Kelly, 1 Jones, 375. 37. i parties in an action of ejectment claim under er can deny the title of such person ; and this rule is net excluded by the fact, that one of the parties claims under a sheriff's deed. Feimster v. McRorie, 1 denes, 547 The rule adopted in the action i I . thai where - claim under th the same- person, neither shall deny th I tie, does not forbid the defendant from show- ing, tl i dntiffhad got his conveyance, which was ill, from such person, he had conveyed to the de- it, though without consideration, and thai tie, the defend- ant, had conveyed to a third person, for a full and valuable con- i en without notice ofthe plaintiff's rights. Newlin v. -ins. 163. 39. Where both parties to a suit claim under the same person, neither can be heard to deny that person's title, and the de- fendant cannol defend himself by showing a paramount title 27 418 ESTOPPEL.— III. outstanding, unless he has procured that title, or can, in some way, connect himself with the true owner. Baswick v. Wood, 3 .(ones, 306. 40. Where plaintiff and defendant both claim under the same title, neither can deny it. And where a party is in possession of land, and registered deeds are produced by the opposite party, purporting to convey to him the land in question, it will be pre- sumed, prima facie, that he entered and holds the land under such deeds. Register v. Howell, 3 Jones, 312. 41. It would seem, where the taker of a life estate in a chattel, under a will, had no other title to it that what lie derived from the will and the executor's assent, that if he accepted the ] o isession as a legatee, he would be estopped from setting up a pretended title afterwards in opposition to the title of the exe- cutor, or the ulterior donee. Hotchhiss v. Thomas, 6 Jones, 537. 42. Where both parties in an action of ejectment claim title under the same person, the defendant is estopped from showing title in a third person, unless he has acquired such outstanding title, or connects himself with it. Brown v. Smith, 8 Jones, 331. 43. 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 n fart, that the purchaser was induced to make the purchase by the declarations or acts of the true owner, the lat- ter will lir estopped from impeaching the transaction. Mason v. WiMams } 8 Jones. 478. 44. A person who uas luade a gift of slaves, which is void bv the act of 1806, (Rev. Code, eh. 50, sec. 12,) cannot, lie estopped from asserting his title to the slaves by any act in pais. Branch v. Qoddin, 2 YVinst., 10."). See (Assumpsit — When it will or will not lie, 41.) (Bailment, 10.) (Contract — Construction of contracts and when an action will lie, 30-) (1 >eed — Of the parties to a deed, and the custody thereof, 1.) (Ejectment — Of the defence and herein of the con- sent rule, 10—11.) (Estoppel — By deed, 24.) (Execution — Levy, sale and application of the money raised, 47.) (Gifts — Of slaves since the act of 1806, 12.) (Indictment — Plea of former acquittal or conviction, 11.) (Justices of the Peace — Of their jurisdiction, judgment and execution, 22.) (Landlord and Ten- ant. 20-23.)' (Tenants in common, 12-24.) EVIDENCE.— I. 419 KYI HENCE. I. Witnesses, their competency or incompetency. II. Subscribing witness — proof of handwriting. III. Witnesses, their examination. IV. Competency of a witness restor- er! by a release. V. Impeaching the credibility of a witness. VI. Depositions. VII. Hearsay and common reputa- tion. VIII. In vvjjat eases a witness may ex- press an opinion. IX Proof of character X. Testimony inadmissible for irre- levancy. XI. Privileged and confidential com- munications. XII Parol evidence, when admissi- ble and when not y XIII. Admissions, declarations and acts of parties, privies and others. XI f. Public documents. XV. Statutes. XVI. Records of events the proof and effect of them. XVII. Proceedings in other suits, when and how far •■ XVIII. Copies of deeds and other instru- ments, when admitted and how proved. XIX. Proof of official bonds. XX. Professional books, or books of science. XXI. Books of original entries, ao- counts, receipts, orders, checks, way bills, &c. XXII. Laws and legal proceedings in other States and countries. XXIII. Evidence in eases relating to wills and testaments. XXIV. Evidence in cases of malicious prosecution and slander. XXV. Evidence as to the identity of names. XXVI. Evidence in criminal proceedings and indictments. XXV II. Dying declarations. XXVII!. Who to decide upon°the com- petency of evidence. XXIX. Of the effect to be given to tes- timony by the jury. XXX. Presumptions. XXXI Witnesses, their liabilities. XXXII. Wltnessess, their compensation and remedy therefor. Notb — The rules of evidence, in relation to the competency of witnesses, have bean mate I by an act of tire legislature entitled " an act to improve the law of evidence, 1 ' ratified the 2nd March, 1*66. Incapacity to give testimony aris- ing from interest or c:im? is removed, aird the parties to a suit are competent and compellable to give evidence, with certain exceptions specified in the act By another act, "concerning negroes and persons o! color or mixed blood," such persons are made competent to testify in any -nit where the rights of person or property of per- sons of color are put in issue. I. WITNESSES, THEIR COMPETENCY OB INCOMPETENCY. 1. The affidavit of a person convicted of an infamous offence may be heard on a motion to remit his forfeited recognizance. Hall v. Cox, Mar. 24, (12.) 2. So it may be on a motion to continue his cause. Anony- mous v. Eiml orongh, Mar. 25, (12.) ;;. Interest in the event of the question, hut not of the cause, 420 EVIDENCE.— I. ■will not render a witness incompetent, Ferrcll v. Pen-)/, Mar. 27, (16.) S. C, 1 Hay., 2, (2.) S. P.,Porierv. MtClure, 1 Hay., 360, (413.) Harrisonv. Harrison, 2 Hay., 355, (5-15.) Rowland v. Rowland, 2 Ired., 61. (These oases overrule, Starkey v. McClure, Mar. 73, (75,) and Madox v. Hoshins, 1 Hay., 4, (7.) 4. A slave cannot be a witness against a free negro. Cox v. Dove, Mar. 43, (35.) (A slave is now a competent witness for or against a free negro, Rev. Code, eh. 107, see. 71.) 5. A person entitled to a reward, offered by the General As- sembly, on the conviction of an offender, is a competent witness against such offender. State v. Coulter, 1 Hay., 3, (4.) 6. The wile of a person, interested in the event of the ques- tion but not of the cause, is a competent witness. Porter- v, McGlure, 1 Hay, 360, ("413. ) 7. In an indictment for perjury in swearing to attendance as a witness, the prosei utor is a competent witness, thofegh he be the person who is liable to parlor the attendance sworn to. State v. Wyatt, 2 Bay, 56, (219.) 8. When a witness is offered, the adverse party may by other witnesses prove him interested, and he shall then be rejected as incompetent. Smalhcood v. Mitchell, 2 Hay, 145, (3l8.) 9. Where a partnership becomes bankrupt, and a suit is brought by the assignees of one of the partners, a creditor of tVe part- nership is competent to prove the debt, if it be shown that the separate estate of this partner is not sufficient to pay his sepa- rate debts. Barclay v. Carson, 2 Hay, -43, (430.) 10. A partner, who is brankrupt, may prove that a debt sued for by the assignees of his co-partner, also a bankrupt, is due to his co-partner. Ibid* 11. On the trial of indictment for perjury, a person int. n to prove the defendant guilty, because he will thereby exclude his testimony against him in a < ivil suit then pendii petent; so is also the party to the civil suit in& t1 for the defendant, when it is Ins interest to support the defendant. States. Hamilton, 2 Hay.. 288, (-170.) 12. A bankrupt, who endorsed a note before his 1 ankruptcy, and who has obtained his certificate, is a good witness for the endorsees in an action on the note acainst the maker Murray v. Marsh 2 Hay, 290, (472.) 13. If the objection to a witness arises from proof made by the objector, the witness cannot discharge himself of the objec- tion by any matter sworn by himself; it must be removed by proof drawn from some other source. Ibid. 14. The person entitled to restitution of possession, in ease ol a conviction for a forcible entry, has such an interest as renders him incompetent to support the indictment. State v. Fellows, 2 Hay, 340, (520.) 15. If a witness have said he was, by promise of plaintiff, t< > EVIDENCE.— I. 421 have part of the recovery, a release •will not render him compe- tent. Qucere, by Haywood, whether the promise should not have been proved by some other evidence. Anonymous, 2 Hay., 340 ( 52 °) ... . 16. A captain of a ship is not a competent witness for the owner, who is sued for the lqss of a cargo, to prove that the loss •was caused by stress of weather and not by negligence. Gard- ner v. id, 2 Hay, 3 19, (534.) 17. A witm ss, who believes himself to he interested, is com- petent, if his interest be only in the event of the question and not of the cause. Harrison v. Harrison, 2 Hay.. 355, (545.) 18. A witness, who t by his testimony, will prevent a suit I himself is incompetent. Hunter v. McAudin*2 Hay., 366, (560.) 19. A collector of arrearages, whose commissions depend upon the amount of the recovery in the suit, is incompetent to Erove ii fraud against a defendant charged with fraudulently uying a sheriff's property. Treasi n r v. Nail, Tay., 5, (4.) 20. The husband of the widow of the lessor of the plaintiff's ancestor may be a witness for the plaintiff in an action of eject- ment. Beatty v. . Tay., 9, (7.) 21. On an indictment for perjury,, the person, against whom the defendant testified, and upon whose testimony he was con- victed of a misdemeanor, is a competent witness. State v. Has- set, Tay., 55, (40.) '2-1. A person who receives money from A, to pay to B, is a son ;' tent witness to prove that he was authorized by B, to re- ceive it for him from A, in a suit by B to recover it from A. .,1 Murph., 17!'. . 23. In assumpsit for goods sold and delivered by the testator, aspeoii 1 -' legatee, not entitled to any share of the residuum, is a competent witness to prove the delivery of the goods, unless it is reasonably probable that the specific legacy may !"■ wanting to pay testator's debts; otherwise the interest of the witnes is too remote to affect his competency. Leary v. Littk- john. 1 Murph., 406. 24. It is no objection to the competency of a witness that he is counsel for the plaintiff, and intends, if the debt sued for be recovered, to charge a commission for receiving and remitting the money. Shcumbv. Newlty, 1 Murph., 423. 25. In detinue for a slave, a constable, who sold the slave under an execution in favor of B, and at the sale acted as the agent of B, in bidding off the slave, and by B's direction exe- cuted a bill of sale to the defendant, was held competent to prove these tarts on behalf of the defendant. Beid v. Powell, 2 Murph.. 53. 26. In Lord Mansfield's time it was held that no man should be heard to impeach an instrument, to which he was a party; 422 EVIDENCE.— I. but this was exploded by Lord Kenyon, and it was held that witnesses could be excluded only for infamy or interest, which is now the true rule. Guy v. Hall 3 Murph., 150. 27. A witness is not incompetent because another witness had better opportunities for knowing the facts than he, as the rule, which requires a party to produce the best evidence in his power, applies to the grades, excluding parol, where written may be had, but it does not apply to evidence of the same grade, so as to exclude weaker where stronger might have been produced. Governor v. Roberts, 2 Hawks, 26. 28. Where it appeared that a son was subscribing witness to an obligation purporting to be executed by his father, and in a suit upon it, after the handwriting of the son, who lived out of the State, had been proved, if was held, that his deposition was competent to prove that it had never been delivered, unless the plaintiff could show that he took some interest under a will which it appeared his lather had left. McKinna v. Hayer, 2 Hawks, 4l'i\ 29. A witness, who has been convicted of forgery in Tennessee, is incompetent in the courts of North Carolina.. State v. Can- dler, 3 Hawks, 393. 30. A wife is an incompetent witness where her husband is interested, upon principles of policy arising frem the relation of husband and wife, not because she is interested in the suit, nor on account of her legal identity with her husband. Daniel v. Procter, 1 Dev: 128. 31. An interesl in the event of a suit, acquired after its com- mencement, does not render a witness incompetent, unless that inti n sf was acquired from the party offering him. Bhem v. Jack- son, 2 Dev,, 187. 32. Where two persons signed a receipt for money, and prom- ised to refund it if not entitled to it, in an action by one of them, against the person to whom the receipt was given for money had and received, the other is a competent witness for I he plain- tiff, when it does not appear that there is any identity of the mo- ney sued for with tharl mentioned in the receipt. Smith v. Room, 2 Dev., 252. 33. The surety of a delinquent cashier is not a competent wit- ness for him, in an action brought to recover money alleged to have been improperly paid by his principal, and tor which the latter is chargeable. Stale Bank v. Littlejohn, '1 Dev., 381. 34. in an action against an officer for wrongfully seizing the goods of A, under an execution against B, the latter is not a competent witness to prove title in himself. Waller v. MiUs, 3 Dev., 515. 35. One tenant in common cannot, in an action. .against his co- tenants, be examined as a witness to defend the possession. — Rogers v. Male, 4 Dev., 180. EVIDENCE.— I. 423 36. The rule upon the subject of confidential communications, from a husband to his wife, does not apply to such as are made to the witness, to be communicated by her to others; nor to such as are made, as to a matter of fact, to be operated upon after his death, where it must be the wish of the husband, that such oper- ation should be according to the truth of the fact, as established by his declaration; and she is competent to prove it. Hester v. Hester, 4 Dev., 228. 37. Il sums that an inhabitant of a town may be a witness for the town, where he has no distinct individual interest in thesuit; and whole the subject matter of the controversy is a public charity belonging to the town, he is undoubtedly competent. — Jackson v. Commissioners of Hillsborough, 1 Dev. and Bat., 177. 38. Th • fact of a witness being interested in the matter in dispute must be shown only in the mode in which other contro- verted facts are to be proved: therefore, the declarations of the witness, not on oath, nor in the presence of the party against whom t!e-\ are offered, with respect tolas interest in the subject matter of the suit, cannot be received. Ingram v. Watkvns, 1 Dev. and Bat., 442. 39. A mere trustee, who has no interest in the event of a suit. is compel ml to bestify in that suit. Jones v. Sasser, 1 Dev. and Bat., 452. 40. The incidental notice taken of the marriage of slaves, to be found in some of our statutes, does not legalize their marriage, so far as to affect the question' of the eompetency of the hus- band and wife to be witnesses for or against each other. Statt v. Samuel, 2 Dev. and Bat., 177. 41. In a petitition against an administrator, upon an issue made up to try whether the petitioners are the next of kin of the intestate, the sureties to the administration bond are compe- tent witnesses for the defendant, they being neither parties nor privies to the r icord, and therefore it could never be given in evidence against them. Haywood v. Barnett, 3 Dev. and Bat, 91. 42. In an action on a joint and several promissory note, if the actioD be against the principal alone, the surety may be. a wit- ness either for the plaintiff or defendant. Ibid. 4;). A trustee, who has acted by selling the trust property, and lias retained his commission for so doing, may be a witness in support of tii'.' deed in trust, if lie have conveyed the property without covenant or responsibility. Norwood v. Morrow, 4 Dev. and Bat., 442. 44. A husband is incompetent to testify in favor of his wile: and will not, therefore, be admitted as a witness to establish a settlement in her favor against his creditors; nor will his subse- 424 EVIDENCE.— I. quent declarations be admitted for that purpose. Saunders v. Ferrell, 1 Ired., 97. 45. Where it appeared that A, B and C entered into a copart- nership in the name of A & Co., for the purchase and sale of negroes, and it was afterwards agreed betweeen them that A and B should alone be interested in the negroes purchased with cash, but all three should be equally interested in the negroes purchased mi a credit, it was held that though C might be held responsible on all contracts by third persons dealing with the firm of A & Co., yet he would be competent as a. witness to testily for the firm in an action on the warranty of soundness, contained in a bill of sale for a negro purchased in the name of the firm for cash. Williamson*?. Canada//, 1 [red., lb). 46. If the surety to a note or bond be surd alone, the princi- pal debtor will be incompetent as a witness for him, because, if the plaintiff succeed, he will be liable to the surety for the costs of the action; but the principal may, in such action against the surety, be made competent by a release from the surety, before he is called to testify. Moffit v. Gains, 1 Ired., 158. 47. In an action on a contract, a defendant cannot be admitted as a witness for his co-defendants, even after he has suffered judgment by default to be taken against himself. Walton v Tomlin, 1 Ired., 593. 48. In a suit by an administrator, one of the next of him of his intestate cannot lie a witness for him; but such next of kin is a. competent witness fm- the defendant, and, if introduced by him, may lie cross-examined by the plaintiff on any matter perti- nent to the issue. Cox v. Wilson, 2 Ired., 234. 49. Where a bond is made payable to one "as executor," for the rent of land, and suit is broughton it in his name, the guar- dian of wards, who are in equity entitled to tin.' rent, is a com- petent witness for the plaintiff. Wooddell v. Jfoore, 2 Ired., 261. 50. In an action against one charging him to lie a partner in a particular firm, it is competent for him to introduce, as a wit- ness in his behalf, a person who was an acknowledged member of that firm, unless it be admitted by the pleadings, or sworn by the witness on his voir dire, that the defendant was also a member. Iliimi v. MeKee, 4 Ired., 475. 51. A witness cannot, by creating by his own act a subsequent interest, without the concurrence of the party calling him, and much less by an agreement with the opposite party, render him- self incompetent, so as to deprive the party calling him of the benefit of his evidence. Hafner v. Irwin, 4 Ired., 529. 52. A vendor of personal chattels is an incompetent witness, without a release, to prove title in his vendee, because in every sale of a chattel personal there is an implied warranty of title, if there be no contract to the contrary. Freeman v. Lewis, 5 Ired., 91- EVIDENCE.— I 425. 53. A witness, may be compelled to testify in a civil suit v though his evidence may militate against his own interest. Harper v. Burrow, 6 Ired., 30. 54. A witness, who is so much intoxicated asnot to be able to Understand the obligation of an oath, may be ordered by the court to stand aside until he becomes sober, and if the party who offered him omits to recall him, he will have m> ground upon which to apply for a new trial. State v. TJnd . ood, 6 Ired.. 96. 55. In an action on a bond, an obligor, who is not a party to the suit, may be examined as a witness for the defendant, hiB co-obligor; and more especially when the defendant has exe- cuted a release to the witness. lAgon v. Dunn, 6 Ired., 133. 56. Iii an action against two of three partners in a firm, the plaintiff may introduce the third partner, who is not a party to the record, though he could not be compelled to give his testi- mony. Cm niru v. Coffin, 7 [red., 196. 57. The testimony of partner, not sued, cannot be given on behalf of his co-partners, because in a suit for contribution he would be bound not only for his part ol the d bt, but also for his proportion of the costs accrued in the action in which he is red. Ibid. \ witness is not rendered incompetent by the commission of. or the conviction by the jury of any crime, but only by a judgment upon conviction. Statev. Valentine, 7 Ired.. 225. 59. The interest, which renders a witness incompetent, must be a legal and beneficial interest in the subject matter for which the suit is brought. State v. Poteet, 7 Ired., 356. 60. it is not sufficient thatawitness believes himself inter- ested, if in fact he is not: nor is it sufficient, if lie conceive him- self bound m morality and honor to make good any loss sus- tained by the person, in whose favor the evidence is to be given, in consequence of a judgment against him. Ibid. 61. The leaning of the courts in modern times is to let the objection, on the ground of interest, go to the credit rather than to the competency of the witness. Ibid. 62. The testimony of a partner, nel a party to the record, may be introduced by the plaintiff to prove that the defendant was a, member of the firm, and that go&ds were delivered to them by the plaintiff. Washing v. Wright, X Ired., 1. 63. Where a witness is equally interested on both sides, he stands indifferent, and, therefore, where the plaintiff alleged that one W was indebted to him, and the defendant agreed to pay the del >t. it was held, that W was a disinterested witness, and therefore competent. Qarraway v. Cox, 8 Ired., 79. 64. A sheriff is competent as- a witness to prove a sale made by him under execution. Owen v. Barksdale, .sired., 81. 65. An agent,, as such, is not necessarily an incompetent wit- 426 EVIDENCE.— I'. ness to testify for his principal. He can only be excluded on the ground of inteiest. Ashe v. Murchison, 8 Ired., 215i li(i. When a principal is sued for the negligence of his agent, a prima facia case of responsibility to his principal must be shown, befoi-e the -.agent is excluded as a witness, and then the principal ought to be permitted to examine him on his voir dire, to explain his real situation. Ibid. 67. It has been the universal practice in this State, to permit an attorney in a cause to give evidence at the instance of his client. Stali: v. Jl'oodside. '[) Ired., 4'.)6. 68. It is not competent to introduce, as a 'witness, a member of a firm, to prove that his individual board, or any other individual debt, was to be paid by the firm. Street v. Meadows, 11 Ired., 130. ()!'. After the death of a husband, his wife is a competent witness, to prove the execution of a deed mad'' by him in favor pf a third person. Gush-ill v. King, 12 Ired., 211. 70. On the trial of a collateral issue between the administra- tor and heirs, as to assets, in a suit by a creditor, one of the heirs is an inc pet< nt witness for the administrator, though he may have re] lased to him all his interest in the personal estate, and also an amount supposed to be the value of the real assets descended to him. Carrier v. Hamilton, 13 [red., 436. 71. A wife is not a competent witness against her husband, to prove a battery on her person by him, except in a case where a lasting injury is inflicted, or threatened to be inflicted upon her. Sliili v. Hussey, Bush, 123. (A wife is competent to give evi- dei in such a ease now. See acts of 1856, ch. 23.) 72. A deputy sheriff, to whom it is alleged that payment of a judgment was made, is a competent witness to disprove the al- legation. State v. Simpson, 1 Jones 80. 73. The intendant of police in an incorporated town, who is- sues a warrant against a slave for a penalty for violating a town ordinance, which warrant is in the name of the commii i ionersof the town, as plaintiffs, of whom he also is one, is a competent wit- ness to prove the disorderly conduct of such slave, alleged as a breach of the ordinance. Commissioners of Washingtion v. Frank. 1 Jones, 436. 74. Where an administrator, in order to gel possession of the assets, enters into a covenant with one found in possession of a slave, that the slave is his as administrator, the next of kin of tin' intestate are competent to testify for the administrator in a suit on his covenant, because they are not liable even for the costs on a breach of his personal covenant. Conies v. Rowland, 2 Jones, 2 lit. 75. The master of a slave, who is on trial for capital felony, is a competent witness in behalf of his slave. State v. Jim, 3 Jones, 318. EVIDENCE.— I. 427 76. A stockholder in a bank is not a competent witness to es- tablish a debt due to the bank. But in the case of a public cor- poration, as for instance a county or town; a member of it may be a witness for it. Stephenson v. Simmons, 4 Jones, 12. 77. A person who believes in the existence of a Supreme Being. -and that he will punish in this world, and punish in this world ■only, fir every sin committed, is a competent witness. Shaw v. Moore, 4 dunes. 25. 7*. A person, who has a direct, certain, legal interest in the event of a suit, is nut a '<• iinpctent witness on the side of his own interest. Mian v. Stafford, 4 Jones, 94. 79. The interest, which will disqualify a witness, is any inter- est that can be asserted in a court sf justice, whether a common law court, or a court of equity. Ibid. S). In a suit to recover back the purchase money paid to the holder, without endorsement of a not'' alleged to he forged, the ostensible maker of the note is a competent witness to prove the forgery, although he had given to the ostensible payee a bond to indemnify aim against the consequences of refusing to let his n.i ae b ■ usi d in the collection of it by suit. White v. On a. 5 Jones, 47. 81. In an action of trover for the conversion of a personal chat- tel, if the defendant does notrelyupon a title in himself adverse to that of the plaintiff's vendor, such vendor is a competent witness for the plaintiff to prove the sale made to him. Wei- mor v. C '■'..'■' Jones, 155. 82. In an action against the owner of a vessel for failing to. deliver goods according to his written contract, in which was an exception of the dangers of the sea, it was held, that the □ in charge of the vessel was competent to prove that the goods were lust in conseqence of a storm at sea. Willard v. Cart* ■. a Jones. 395. 83. In an action of assumpsit to recover money, which the di - Fendant had obtained from the plaintiff's agent by gaming and other unlawful means such agent is not a competent witness for theplaintiff without a release. Jones v. McRay, 6 Jones. 192. 84. A co-obligor as surety to a bond, who is not sued, is a competent witness to prove the execution of the bond by tin- principal, because he is equally interested on both sides. Gil- liam v. B ineberry, 6 Jones. 223. 85. A landlord, who had leased his hind to a tenant for a year, for a part of the crop, was held to be a competent witness to prove a trespass upon the land, and damages by the destruction of the crop. Smiili irlin v. Shaw, 6 Jones, 225. 86. Where a note was payable to a person as agent, and he put it into the hands of a constable, who gave a receipt to col- lect it for the principal, it was lidd that, in a suit on the consta- ble's bond for a failure to collect, the principal was the proper 428 EVIDENCE.— I relator and the agent was a competent witness for him. Nixon v. Bagby, 7 Jones, 4. 87. A surety to a prosecution bond is not discharged by a second bond, given upon a rule obtained at the instance of the defendant; and therefore, the surety to the first bond is not competent as a witness for the plaintiff. Utile v. JVood rL 7 Jones, 441. 88. Where a person became interested in a eonvenant of war- ranty of a slave, by purchasing an interest in him, and had such interest at the time the suit was brought, but sold it to the plaintiff previous to his examination, it was held, that he was a competent witness for the plaintiff. Henderson v. Grouse, 7 Jones, 623. 89. Where land has been sold under execution as the property of A, and he has received a portion of the sum raised, which was a surplus above the amount of bhe execution, he cannot lie a witness for the purchaser in an action by him to recover the land; because he is liable to such purchaser under the Rev. Code, oh. 43, sec. 27. in the event of his losing the land. Brown v. Smith, 8 Jones, 331. 90. An occupant of land is incompetent to give evidence for the defendant in an action of ejectment. Foust v. Trice, 8 Jones. 490. 91. A person, whose- land has been sold at sheriff's sale, is a competent witness in an action of ejectment, to show that his title was defective. McBougald v. McLean, 1 Winst., 120. 92. In an action ova passenger on a railroad, against the c pany, to recover damages for the loss of his trunk, the plain- tiff is not n competent witness to prove the loss of the trunk ox its contents, though he offer to swear that he has no means of proving those facts, or either of them, except by his own oath. Smith v. North Carolina Bailroad Company, 1 Winst., 203: 93. Where a witness, who had an interest in a cause, gives or accepts a release' in order to extinguish his interest, which is ex- pressed to be given in consideration of the payment of a sum of money named therein, it is competent for the other party to ask him whether in fact any money was paid. Johnson v. Alarvlason, 1 Winst., 292. See (Act of Assembly, 4.) (Bills of Exchange and Promissory Notes — Remedy on ,- t hill or note, declaration, pleading and evi- dence, 12-13.) (Bonds — Proceedings in suits upon bonds, (!.) (Evidence — Subscribing witness — Proof of hand-writing, 18- 28-39-4-5—46.) (Evidence — Proceedings in other suits, when and how far evidence, 10.) (Evidence — In criminal proceedings- and indictmen-ts 38-39-45^48-49-50-54.) (Landlord and ten- ant, 27.) EVIDENCE.— It 429 II. SUBSCRIBING WITNESS — PROOF OF HAND-WRITING. When the subscribing "witness to a bond resides in another State, Ins handwriting may be proved. Tullock v. 2\i. lids, Mar. 27, (15.) S. 1'., Irving v. Irving, 2 Hay., 27, (183.) 2. If the subscribing witness to a covenant become adminis- trator <>f tin' covenantee, in a suit by him his handwriting may he proved, as well as that of the defendant. Ellis v. Hetfield, Mar. 41. (32.) o. The temporary absence of a subscribing witness, to a note or bolra, from the State, will not authorize proof of his hand- writing. Harvey v. Jones, Mar. 41, (33.) S. 1'., Gordon v. Pay, e, Mar. 72, (74,) £, by v. Clark, 4 Hawks. 265. 4. The wife of the obligor cannot be a subscribing witness, and her handwriting cannot be proved. Nelius v. BrickeU, 1 Hay- 19, (25.) 5. The mark of a subscribing witness, who is dead, or not to be found, may he proved to let in proof of the handwriting of the obligor. Ibid. 6. When a subscribing witness cannot be found, his hand- writing may be proved, aid the instrument given in evidence. Jones v. Brinkley, 1 Hay., 20, (28.) 7. The handwriting of a subscribing witness, who, after sub- scribing, voluntarily becomes interested in the bond, cannot be proved. Han ilion v. Williams, 1 Hay., 139, (HiO.) S. C, - Hay., 101. (261.) y. When a sealed instrument is unattested by a subscribing , proof of the obligor's handwriting maybe given in evidence. Ingram v. Hall, Mar. 1. S. C, 1 Hay., 193, (222.) '.i. When the subscribing witness to a bond is dead, and his handwriting canm d, proof of the handwriting of the obligor may be receivi 1. Jones v. Blount, 1 Hay., i 272.) 10. WLere the execution of a b i a man of the same with the obligor, was proved by tb ' pi itioi ofthesub- scribing witness, the handwriting of the obligor was allowed to b '..m. Mushrow v. Graham, 1 liar., 361, ( 414 .,- - 11. It the subscribing witness to a. bond become assignee ■'. and. then assign to the plaintiff, proof cannot lie reci n i d either of his handwiting or of that of the obligor. Hall v. By- num, 2 Hay. 328, (499.) 12. Although the subscribing witness to a bond does not De- nature to lie tiie handwriting of the obligor, but that his own signature is his own handwriting, and that he' never at- tested but one paper signed by the obligor, that may be smlli- cient proof of the execution. Churchill v. Spaight, 2 Hay., 338. ( 515 -) ... ., . 13. If the subscribing witness to a bill of sale, which is lost, be 430 EVIDENCE.— II. dead, others may prove its contents. Garland v. Goodloe, 2 Hay*., 351, (537.) 14. The signature of the president and cashier of a bank may be proved by persons who never saw them write, but whose bu- siness has made them conversant with bank bills, and the judg- ment of persons well acquainted with bank notes is sufficient evidence to determine whether a note be genuine or forged. — United Slates v. Holtsdaw, 2 Hay., 379, (577.) S. P., State v. AUen, 1 Hawks 6. State v. Candler, 3 Hawks, 393. 15. The handwriting of a subscribing witness may 1m- proved, when he refuses to attend under circumstances of fraud, and the party has done all he can to procure his attendance. Baker v. Blount, 2 Hay, 404, (610.) 16. Where the name of the subscribing witness to a bond was written by the obligor, it is the same as if there were no sub- scribing witness, and proof of the obligor's hand writing is suf- ficient. Allen v. Martin, 1 Gar. L. R., 373, (42.) 17. The production of the subscribing witness to a written contract can only be dispensed with in cases of necessity, as when he is dead, removed beyond the process of the court, become infamous, or interested by operation of law. Therefore* where the assignee of a bond, to which he was the subscribing witness, brought a suit on it; it was held thatfno evidence could be given of its execution by the defendant; not even a declare*- tionbythe defendant that he had given the bond and would pay it. Johnson v. Knight, 1 Murph., 293, S. C, 1 Car. L. R., 93, (12) and 2, Murph., 237. 18. A subscribing witness to a note, to whom it is afterwards endorsed, and who then endorses it without recourse, and is also released by the .endorsee, is a i ipetent witness to prove its execution.' Biflingsly v. Knight, N. C. Term, R, 103, (540.) 19. The modes of proving the handwriting of a person an . 1st, by a witness who saw him sign the very paper in dis- pute; 2nd, by one who has seen him write, and thereby fixed a standard in his own mind, by which he ascertained the gen* uineness of any other writing imputed to him; 3rd, by a wit- ness who has reci ived letters from the supposed writer, of such a nature as renders it probable that they were written by the person from whom they purport to come; 4th, by those who have inspected and become acquainted with ancient authentic documents, which bear the signature of the person. State v. Allen, 1 Hawks. 6. 20. If win est factum be pleaded to an action on a bond, the subscribing witness must be produced, but the plaintiff is not confined to his testimony, but may also give evidence of the handwriting of the obligor, or his acknowledgment of the bonds or the like. HoUoway v. Lowrenw, 1 Hawks, 49. 21. The handwriting of a magistrate, to his official acts, need EVIDENCE.— II. 431 not be proved by himself, though within the' process of the court; but may be proved by any person acquainted with it. Ainsworth v. Greenlee, 1 Hawks, 19Q. 22. Pn>i if of the hand writing of a subscribing witness, who is only temporarily absent from the State, is inadmissible, but it is otherwise, ifhieabsence be caused by the performance of a pub- lic duty, as attending congress as a member thereof. Selbi/ v. Clark, 4 Hawks, 265. 23. A witness, who has seen many certificates of survey at- tached to grants, and purporting to'have been made by a survey- or since deceased, is competent from the knowledge of his hand- writing thus acquired, to prove that a particular plat of survey- is in the handwriting of the deceased surveyor. Jones v. Hiaj- gins, 1 Dev., 223. 24. When a lull of sale is introduced as a forgery, for the pur- pose of supporting the credit of a. witness, the subscribing wit- ieed not lie produced on the trial. State v. Weir, 1 Dev., 363. 25. The' act of 1806 requiring the due and fair execution of deed of ft, c, of slaves to be proved on the trial, does not introduce a new rule of proof, but onlyrepels the idea that they may be read und r i vrte probate for registration. It is, therefore not i ntial to the validity of a deed «i gift for slaves, under tl ■ L806, that the subscribing witness should be able to testify try, as well as to the sijniiiu a:, 1 1 st ulinij. That fad :■< ly b proved by other witnesses Ar< Ireivs v. Shaw, -1 Dev., 70, S. P., Vines v. Broumrigg, 4 Dev., 265. 26. To prove the execution of a bond, the testimony of an attestin . or, if there be none, of the handwriting of the obligor, is the ordinary mode; but this is not exclusive of other modes: as when one, whose name purported to lie signed to a bond, procures the custody of it and erases his name, tl exe- cution of it may be inferred from this spoliation. Cornishv. • Bat., 62. '11. It' a p irson, who subscribed a bond as a witness, without the knowledge or consent of the obligor, die, proof of his hand- writing would not be sufficient evidence of the due i xecution of the bond: other evidence would be required, as proof of the handwriting of the obligor, his acknowledgments, or the like. BlackweU v. Lane, 4 Dev; and Bat., 113. 28. [f the subscribing witness to an instrument becomes in- terested and a party to tile cause, even though he does so vol- untarily, he cannot be examined as a witness. In such case, the adverse party, if he wish to prove the instrument, may prove the handwriting of the subscribing witness; and if that cannot be done, proof of the handwriting of the party, who executed the instrument, is admissible. If proof of neither can be obtained by disinterested witnesses, the party must resort to his bill of 432 EVIDENCE.— II. discovery in equity. Blachwelder v. Fislter, 4 Dev. and Bat., 204. 29. A witness may state his belief as to the identity of per- sons, or the sameness of handwriting-, though he will not swear positively as to those facts; and the degree of credit to be at- tached to his evidence is a question for the jury. Beverly v. Williams, 4 Dev. and Bat., 236. 30. Testimony as to handwriting, founded on what is properly termed a comparison of hands, seems now to be generally ex- ploded. And the only admissible testimony of handwriting is that of a witness, who has acquired a knowledge of the party's handwriting, from having seen him write, or from having had a correspondence with him upon matters of business, or from transactions between the witness and party, such as the former having paid bills for the latter, for which he has afterwards ac- counted. Popev. Askew, i [red., 16. 31. Where the attesting witness to a bond is dead, its execu- tion may be proved by the proof of the witness's handwriting; but if such evidence cannot be had. then proof of the obligor's handwriting is admissible; but before the latter testimony will be received, the party offering the bond for probate must show to the court that he has done all in his power, without effect, to procure evidence of the handwriting of the ati witness. Hence, where it appeared that the subscribing witness to a bond had been clerk of the county court of a large, populous and wealthy county, and had been dead only twenty-five years, it was in Id not to he sufficient, for admitting testimony of the obligor's handwriting, to shew, by one witness only, that he did not know the subscribing witness's handwriting, and did not know of any person v.le did have such knowl v. LUtlejohn, 1 Ired.. Mi. 32. Where the subscribing witness to any in at, excepl a negotiable one, becomes interested in a suit ! roughl by him, his handwriting may he proved to establish the e lotion of the instrument, whether his interest was thrown upon him by operation of law, or was acquired by his own voluntary act. Saunders v. Ferrill, I [red., '.. ! 7. 33. The subscribing witness to a deed in trust need not be called to prove, it on the trial i F o nt. the reg- istration being prima facie evidence of its execution. Harper v, E rrow, 6 [red., 80. .'If. Proof of the handwriting of a subscribing witness to a de d, who resides out of the State, is sufficient proof of the exe- cution of the deed. Edwards v. Sullivan, 8 ired.. 302. 35. Proof of the handwriting of a if ceased subscribing wit- ness to a bond is not, strictly, prima furl- evidence of the exe- cution of the bond, though it will authorize (lie reading of the instrument to the jury; but the jury must weigh this, together EVIDENCE.— II. 433 with the other circumstances given in evidence, and from the whole, determine whether the alleged instrument was executed or not. Black v. Wright, Ired., 447. 36. In an action upon a bill of exchange, the testimony of a witness, who cannot swear to the handwriting of either member of tlie firm, in whose name the bill was drawn, but who testifies that., in his opinion, the handwriting was the same as that of many notes he had presented to the firm and which had been paid by them, was competent, and it was proper to leave Mich evidence to the jury. Gordon v. Price, 10 Ired., 385. :')7. Where the subscribing witness toa deed for land or slaves and tl; dead, or cannot be procured, whereby it can- not be ged by the one or proved by the other, recourse ie common law mode of the purpose of registration, as also for the purpose of making the deed evi- dence at common law generally. And in such case, the party would be under the necessity of giving similar evidence of the execution on the trial. Carriers. Hampton,ll Ired., 307. 38. A mere mark or cross ol an illiterate subscribing witness, prima facie, cannot be identified, and therefore tin- instrument may I' ■ read upon proof <>i the handwriting of the party. Ibid. 39. Where a witness to a contract, subsequently to ins attes- ation, acquires an interest in the contract, through or under one if the contracting parties, he is an incompetent witness for the party so creating the interest, unless the circumstances entirely negative any idea of fraud, as where the interest was thrown upon him by the act of law, or when . afti r attestation of an in- strument, the witness has married the party seeking to establish the in trument. Overman v. Coble, 13 Ired., 1. 40. Proof of a, deed bj . . ttesting witnesses is sufficient; and. proof of t»B handwriting of one, where both are dead, is also sufficient. Burnettv. Tim , n, 13 Ired., 379. 41. A witness, who has had a bu spondenee with a i unknown to him. who has v him .-Mid has received answers from him. and swears thai in tin's way he has acquin da know ledge of his signature though not of hie renerul handwriting, is competent to testify as to such signature. I Jones, 94. ■12. ] i i pidi i ce, 1 1 al thecom] ari ofi I her writings with the on.' rn contest c d to pro - * - handwriting, is not varied by the fact that such writi evidence for ir] - Writi i gf ar< no1 propel d to a jury's 1 be read. sral rule, all evi- ' aring of thir first examination, and had since an opportu- nity of communicating with each other. Stale v. Silver, 3- Dev., 332. 7. A party is not bound to offer an incompetent witness, in order that Ins a Iversary may waive the objection and cross- examine him. Crowett v. Kirk. 3 Dev., 355. 8. 1 1 is not allowable to counsel, on a cro ---examination, to put a question to a wi i m srning any collateral fact, notreb >ant if disproving the truth of the expested answer by o i : to such a question must I usive, and no evidence can be afterwards admit- ted to i it; but this rule di . .1\- to any enquiry reepectin ; the fact in issue, or its attendant circumstances, or any fact immedial icted with the subject of the enquiry. t. an 1 Bat, 39. 9. Where a witness on the part of the State, on Ins cross- examin tion d "whether the prosecutor had not paid him tor coming from ano her State to be a witness, and answered that he had not, it is incompetent for the defendant to introduce witnesses to prove his declartions that he had been so paid. State v. Patters m, '1 [red., 346. 10. \\"!i ir to which a witness deposes, constitutes a part of the trail m under investigation, then evidence of in- consisl i :nts by bim, in relation to this fact, may be in- troduce iach his credit, But in respect to collateral matters, d awn out by cress examination, the answers of the witn are in j le I to be regarded as conclusive. Ibid. 11. When, however, the cross-examination :; as to matters, which, althou; h collal ral, ti nd to show the temper, disposition iwards the cause or I ■ parties, the to these matters may be contradicted Ibid. 12. If a whether he h irsuchrepre- be proper, But net in relation to collateral mat- 13. Qn tendin disgrace him, may 1> . losite party; but whel witness is bound to answer them is doubtful Ibid. 14. After a witness on atrial has been cross-examined, it ie 436 EVIDENCE.— III. in the discretion of the presiding judge to permit or refuse a second cross-examination ; and counsel cannot demand it as a right. State v. Hoppiss, 5 Ired., 40i>. 15. Where a deposition is read in evidence, the opposite party may contradict the witness, by showing that he has subsequently made different statements, without having put to the witness the usual preliminary questions, as such, from the nature of the case, could not be put. Roberts v. OoUins, • > Ired., 223. 16. A party does not make one his witness by taking his depp- sitii n, which he declines bo read, or by having him summoned and then declining to examine him. Neil v. Childs, 10 Ired., l!h r >. 17. A witness may refresh his memory, by looking at a book of entries kept by himself, without producing the book on the trial. State v. Cheek, 13 Ired., 114 L8. According to the practice in this State, the plaintiff may intro tuc and e: amine as many witnesses as he 'let ins necessary to establish his ease, and if the defendant bring in contradictory witue se.s, the plaintiff may call in others to corroborate the first. Outlaw v. Hurdle, 1 Jones, 150. 19. In some cases, thepresi •. in order to save time and when he sees no harm will result from it, may, in Ins dis- cretion, allow a leading question to be put bya pari)- to his own witness, but it is never error to refuse it. Nicliolls v. Holmes, I Jones, 360 20. On the trial of a caj ital c; i the court may, in its discre- tion, permit witnesses, who have been pn viously examined, to be recalled and re-examined before the jury, after they have once retired to consider their verdict. State v. Nohlett, 2 Jones, lis. 21. The rule for the examination of a witness, jcvhich forbids a counsel from putting leading qrj stions to one whom he has called, may under certain circ i be relaxed or altogeth- er abandoned, at the discretion of the presiding judi e; as for instance, where one witness is called to contradict another, in which the interrogatory put by the counsi 1 to his own witness may be permitted to embrace the language proposi d to be con- tradict! d. Ounter v. Watson, A Jones, 455. 22. A i ■■ i n is one which sugg si to the witness the answer which the party desires; or one v. hich is so put as to [y a material fact, and to admit of an answer by a single negative or affirmative; though neither the one nor the other is directly suggested. Ibid. 2o. The exereise of a discretion by tl i permitting or refusing a leading question to be put by a counsel to his own witness, cannot ordinarily be revi i d upon appeal, but it may be so, when its effect is to deprive the party of testimony which he might otherwise have procured. Ibid. EVIDENCE.— IT. 437 IV. COMPETENCY OF WITNESS RESTORED I1Y A RELEASE OR OTHERWISE. 1. When a witness is incompetent by reason of his being se- curity tu an appeal bond, the incompetency may be removed by the party's giving another appeal bond with new sureties. Ia .- nd r v. Pritchard, 2 Hay.. 337, (513.) S. P., McCuUoch v. Tyson, 2 Hawks, 336. 2. Th ■ interest to disqualify a witness must exist at the time of the trial, and it. before that, the witness removes the inte 'est by releasing it, or does all he can to remove it, as by filing a k's office when the party is not present tu ac- competi ucy is restored, Perry v. Fleming, 2 Car. L. i;., 458, (344.) ;>. A. witness, who releases a particular interest which he has in an ei i - u ipetent, where it does not appear that he has any other. 1 Dev. and Bat., 284. 4. Upon the trial of an unmenced by original attach: meat, when the plaintiff wii hes tu examine a person who is surety to : a achment bond; the court may permit the bond to be cancelled upon another's being given ia its stead Gar- -. 2 Dev. and Bat., -Mil'. 5. ' ty cannot, by refusing his assent t:> a release or sur- render ti n Lered by a witness on the other side, exclude his tes- timony. Depositing I he release in the clerk's office will be suf- lirion he witn s to testily. Marchant, 3 Bat, 40. (J. In an action by an administrator to recover ad : I due to his intestate, a release by one of the next kin to the administra- tor of all hi i iuteresl in the said debt, it recc\ i also a release by the administrator to the said next of kin of all claim upon him for any part of the costs of the suit, if he should fail, will render the uext of kin a competent witness for the adminis- trator. And/'/ seems the release by the next of kin to the ad- ministrator would alone render him competent. Moffit v. Lane, 2 1 red.. 254. 7. The vendor of personal chattels may be made competent, by a re I m his vendee, to prove a title in him. Freeman v. L, wis, 5 [red., 91. 8. On the trial of an action of ejectment, the court may, in its discretion, allow one of the lessors to be stricken out of the declaration, upon the cost being deposited in court, ami mutual releases executed; and the party stricken out may then be a witness, as if his name luul never been in the declaration. Car- son v. Smart, 12 Ired., 369. 9. One, who has signed a prosecution bond, may become a competent witness for the plaintiff, by the sustitution of a new bond, under an order of the' court, that such new bond shall be substituted- in the place of the other which is to be cancelled; 438 EVIDENCE.— IV.-V. and the witness will be competent, though the first bond be not present to be actually cancelled. Otcy v. Hoyt, 3 Jones, 407. 10. A joint purchaser of a chattel cannot be made competent, by a release of his interest, as a witness for his co-purchaser, in an action for a deceit in the sale of the property to them. Scott v. Brown, 3 -Tones, 541. 11. One of the several partners of a firm, being a party to a suit, can make a good release under seal to an interested witness. so as to restore his eompetencj ; because such release will oper- ate to discharge the witness from liability to the other members of the firm. CrutweU v. DeBosset, 5 Jones, •ill;). 12. The grantor by deed of a slave, can, by means of a release from his grantee, be made a competent witness for him. Biiie v. Wooten, 7 Jones, 441. V. IMPEACHING THE CREDIBILITY OF A WITNESS. 1. The State may impeach the credibility of its own witness, by proving that on former occasions he had' given a different ac- count of the transaction from that which he swears in court. State v, Norris, 1 Hay., 429, (495.) 2. To discredit a witness, it may be asked if he is no1 a man of abaci mural character, the question not being confined to hia character as a man of veracity. State\. Slallinc/s, 2 Hay., 300, (490.) S. P., ;■ ate v. BosweU, 2 Dev., 209. 3. A party cannot impeach the credibility of his own witness. But by calling back a witness of the opposite party, he does not thereby make him his own witness. Sawrt y v. .' • rrell,, 2 Hay., 397, (597.) 4. Where witnesses are called to prove declarations made by a witness inconsisent with what he deposes on the trial, it may, .in reply, be shown that he made other declarations in affirmance of wuai lie swears on the trial, and that he is still consistent with himself. Johmonv Patterson, 2 Hawks, L x .'i. 5. A witness, introduced to impeach the general character of another, should no! exress an opinion founded upon particu- lar facts, nor upon the hearsay of stangers to the witness, whose testimony it is intended to discredit. But if his information be derived from proper sources, he may be asked whether he would believe the other upon his oath, or whether the other is worthy ot credit upon his oath. State v. BosweU, 2 Dev., 209. But see post sec 33. 6. Proof of particular facts is inadmissible in impeaching a witness, because such proof tends to a number of collateral issues, and neither the witness nor the party producing him can be prepared to meet them. Barton v. Morpkis, 3 Dev.. 520. 7. A witness, called to support another, cannot be asked wheth- EVIDENCE.— V. 439 pr he has not heard that other accused of a particular larceny. Ibid. 8. Proof of particular facts is inadmissible to impeach a wit- ness, and the opinion of an impeaching witness is proper only when it coincides with the general reputation of the person im- peached; and a witness, who swears that he did not believe another to be honest, but who does not know the opinion of others, is incompetent. Downey v. Murphey, 1 Dev. and Bat., 82. 9. To impeach the credibility of a witness, by proving that he swore differently as to a particular fact on a former trial, it is not necessary tha leaching witnsss should be able to state all that the impeached" witness then depose. I. It is sufficient it he be able to prove the repugnancy as to the particular fact, with regard to which it is alleged to exist. Ingram v. Watkins, 1 i ! Bat., 442. 10. / ion, made in the presence andhearing of a wit- ness an I no radicted by him, is proper to lie submitted to the jm that hi :quiesced in and admitted the truth of h aration; and, it at variance with his testimony on the trial. 1 to impeach his credibility. Radford v. Rice, 2 Dev. and Hat., 39. 11. Declarations of a witness, inc< nsistent with his testimony on trial, mai be given in < vidence to discredit him. Murphy v. McNeil, 2 Dev. and Bat., 244. 12. A party may prove a fact to he different from what one of his own witnesses lias stated it to be. That is not discredit- iting his own witness. Spencer v. White, 1 [red., 236. 13. A witness, who is introduced for the purpose of discredit- ing another witness in the cause, must profess to know the gen- eral repu ati< n ' the witness sought to be discredited, before he can be heard to speak of his own opinion or of the opinions of others, as to the reliance to be placed on the testimony of the impeached witness. States. Parks, 3 Ired,, 296. 14. 'I!- party impeaching a witness should enquire of the attacking witness, whether he has tin; means of knowing the general ' ia ■ of the witness impeached. And such attacking witness may answer affirmatively, without saying that he what a majority of the neighbors say of the impeach d witness, as such is not the only means of acquiring a knowledge of gen- eral character. But the attacking witness cannot be asked by the party who calls him, simply, ^imohat estimation the impeached witness was held in the neighborhood." State v. O'Neale, 4 Ired., 88. 15. A party is never permitted to introduce general evidence to discredit his own witness; but if a witness prove facts in a cause, which make against the party who called him, he may call 440 EVIDENCE.— V. other witnesses to prove that these fac^s were otherwise. SheJton v. Hampton, (3 [red., 216. 16. It may be proved in the trial of a capital case that a witness is a near relation, as a mother or sister, of the prisoner, in order to impair her credibility. State v. Ellington, 7 [red., 61. 17. When a near relation, as a mother, is offered as a witness for a prisoner; it is not error for the court to charge "that the law regarded with suspicion the testimony of near relations, when testifying for each other, that it was the province of the jury to consider and decide on the weight due to the testimony; and as a general rule, in deciding on the credit "I thewitnes ses on both sides, they ought to lock to their deportmi nt, their capacity and opportunity to testify in relation to the transaction, and the relation in which they stood to the party." State v. Nash, 8 [red., 35. 18. To impeach the credibility of a witness by proving that he swore differently as to a particular fact on a former trial, it is not necessary that the impeaching witness should be able to state all that the impeached witness tl d to; itissufficient if he be able to prove the repugnancy, as to th ar fact, with regard to which it is alleged to exist. Edwards v. Sullivan, 8 Ired., 19. Where a witness has been examined on one side, it is not eompetent for the opposite party to introduce evidence to show his bias, feeling or partiality towards the person introducing him, unless the witness has hiinsell been previously quel as to that point, Ibid. 20. Where, with a view to discredit a witness, evidence of inconsistent statements made by liim is introduced by the ad- verse party, it is proper to permit the party introducing him to prove other statements conforming to the testimony given on trial. And the witness, whose testimony is attacked, may be examined on that point State v. George, 8 Ired., 324. 21. When a witness is impeached by showing that he has made contradictory statements, it is perfectly regular in reply to show that lie has made consistent statements. Hoh v. Flem- ing, 10 Ired., 263. 22. Where a witness is impeached on the ground of had char- acter, evidence may be given of previous statements made by him, consistent with his testimony on the trial. State v. Docv, 10 Ired., 469. 23. Although an impeaching witness may be examined as to the general moral character of the witness impeached, and also as to his character for truth when on oath, and when not on oath, it is not necessary to put these questions in any particular order. Ibid. 24. Where a witness for the plaintiff on being examined as to a particular transaction, stated that he hadipaid a certain sum EVIDENCE.— V. 441 of momey to the plaintiff, and tire witness's credit was attacked and the transaction impeached for fraud, it was held that it was competent for the plaintiff to show that he Lad entered the payment on this bonks at the time alleged. Fain v. irds. 11 Ired., 305. ~2~>. < 'n the trial of an ejectment, it became important for the plaintiff to prove that the defendant was tenant of A; and for died A himself, who testified to the fact, but ion produced a conveyance, dated moi seven ; i ment of the suit, and slated that he had - a inually in the peaceable Id that the plaintiff could • ;h the character of A, to ■ testimony as to the date of the deed, a I to do, though he was at liberty to show, it he could, that the witness was mistaken as to that fact. Hice v. Cox, 12 [red., ola. 26. There is a distinction h jrediting a witne show;., I I different fr< sented them. In the latter case, the discrediting oi I, not primary; and the evidence may be disc and tli of the witm ' lied. Ibid. 27. ked on ere.- s exami he not been for an infaun n that hi ■ i testion. Where, however, such :. and the judge left it to the wit i wnethi : i ' ed, it was In , ; tl i\ such refusal might be ipon by counsel in addressing the jury, as wai nee that he was unwor I ! v. Garrett, Busb., 357. 28. When I itor for the State, as upon affidavit for a contin upon the authority of a witness in the cause, who i- ay matter material to the issue, and afterwards the witness testifies differently, testimony ma; ived to prove the diversity, for the purpose of discrediting the witness. State v, McQm ■ n, 1 Jones 177. 29. Where, on a trial for murder, the declarations of the de- ceased have been offered in evidence, and an atteni] has been • n the other side, to destroy the effect of such declarations, by showing the bad character of the deceased; the State, for the purpose of corroborating the evidence, may prove that the deceased made other declarations of the same purport, a few moments after he was stricken, though it did not appea* that lie was then under the apprehension of immediate death. State v. Thoniason, 1 Jones, 274. 30. When the credibility of a witness has been attacked, from the nature of his evidence, from his situation, from his bad character, from proof of previous inconsistent statements, or fi'om imputations cast upon him in cross-examination, the party 442 EVIDENCE.— V. introducing him may prove other consistent statements, for the purpose of corroborating him. March v. HarreU, 1 .'wins, 329, 31. A witness may be asked, on cross-examination, in order to discredit him, whether he had not committed perjury in the State of Georgia. State v. March, 1 Jones, 526. 32. Before a witness can be examined, to impeach another witness by proving inconsistent statements, the impeached wit- ness must be asked as to such statements, in order that he may have an opportunity to explain them. And this rule applies to depositions, unless the inconsistent statements were made after the deposition was taken. Hooper v. Moore, 3 Jones, 428. 33. An impeaching witness ought not to be asked whether, if he were a juror, he would believe the impeached witness on his oath. Tbid. 34. Where, upon the trial of a slave for a capital offence, the credibility of slave witnesses is called in question, the judge may properly call the at 'rent ion of the jury to the fad that they are fellow servants of the prisoner, and he may illustrate the matter, by comparing it to eases of witnesses nearly related in blood to a prisoner. State v. Nat, li Jones, 114. 35. Where witnesses upon a trial exhibit feeling and partiali- ty for the pru iner, the judge may properly call the attention of the jury i<> ii. asaffecting their credibility. 36. Wl ire the credit of a witness was in • itheground of his partiality to the prisoner, who was a fellow servant, and to rebut the imputation it. was proved for i 1 that he and the witness had lately had a fight ; ' to be competent for the Stale In show that, next morning, after the offence was committed, the prisoner and the witness v u < a conversing together in a triendly manner, and that the enquiry might be made without asking the witness himself, a to the terms on which he stood towards the prisoner. Statev. Oscar, 7 Junes, 305. 37. For the purpose of showing that a witness for the State cited by the horrible crime charged against the prisoner, a slave, am! was not, therefore, fully to he relied on, it was lielA competent for the prisoner's counsel to ask him. on cross-examina- tion, whether he had nut taken up and whipped other negroes in relation to the alleged crime. State v. Sam, < s Jones, 150. 38. fur the purpose of weakening the force of a witness' test- imony, he may he asked on cross-examination, as to his temper and fueling towards the cause, independently of any prejudice or ill will towards the prisoner personally. Ibid. 39. Where, in a suit upon an apprentice bond, the question was, whether the relator was of age when the action was com- menced, and his mother testified that In- was; it arts held, that a record of births made in the family Bible, under the dictation of the mother, by a person since deceased, several years after EVIDENCE.— V.-VI. 44;5 the birth of the relator, but before lie was bound out, was ad- missible in evidence to corroborate her statement. Wiseman v. Cornish, 8 -Tones, 218. 40. The fact, that a witness stands in the relation of mother to the party for whom she testifies, does not, as a matter of law, give a bias to her statement, by affi ' g her i '.ion, but her rela- tion to the party is a proper matter for the consideration of the jury. Ibid. See (Evidence — In criminal proceedings and indictments. 14-19-93-96-120.) VI. DEPOSITIONS. 1. In taking depositions where a party lives out of the State, notice may be given to the absent party, or to his attorney in court. Savage v. Rice, .Mar. 20, (4.) (See Rev. Code, ch. 31, sec. 63.) 2. The deposition of a witm i another State may I though he be in this State at tb time of the trial, and had been summoned in the cause, while in the State. Meredith v. K, '. M .'.. 2 •. (17.) 3. i> po , which have been read in the county court, will, upon a a rdinarily be suffered I in the superior court, u u th< pn amption that they had taken after propi r !. itice. Ko Mar. 37, (26,) S. P. Rutluerford v. Nelson, 1 Hay., 105, (122.) 4. A aol read a depositi q unless he can prove, by other testimony than his own affi la^ it, the sick- nei id inability of the witm is. ar. 52, (48,) S.C.I Hay., 227, (260,) S. P. An .71.(241.) 5. ! to 1 ake a deposition in Tenn ■ and 6th days of a particular month was held good. Kerri ander, \ 1 Hay., 25, (34.) i). It is not a valid, objection to the rea osition, that it has not been signed by the witne ' ; i v. JVork, 1 Hay.. 105, (121,) L05, (122.) 7. When a party lives out of the State, end his attorney has died, notice to him, for the purpose of taking a d sposition, by the other party, may be given by advertisement in some m vspaper published in this State. MaxioeU-v. Holland, 1 Hay., 302, (349.) 8. A deposition, certified to have been takenon blip day, and in the county in South Carolina, as specified in the notice, but without stating- the particular plage mentioned in the notice, cannot be read. English v. Gamp, 1 Hay., 358, (410,) S. P., 1 Hay., 395, (454,) in the note. 9. Notice to take depositions at the house of "John Archelaus Ellmore," the deposition appearing to have been taken at the house of '-John Ellmore," held good, as they will be presumed 444 EVIDENCE.— VL to be tin names of the same person. EJhnore v. MiUs, 1 Hay., 359, (412.) 10. It is the common practice to admit the depositions of all public officers, the duties of whose office oblige them to attend at a particular place for the discharge thereof, as. in thii collector of the customs. Mushrowv. Graham, 1 Hay.. 361, (414.) 11. The notice was thai a deposition would 1"' taken on a certain day a1 Flalifix Court House, in Virginia, and expressed that it was taken at the house of Manning, at Halifax Court House, Virginia, the deposition was rejected, upon its appearing that M inning's house wi at from the court houi . v. Taylor, 1 Hay., 381, (439.) 12. Whether a notice to take a deposition must upon the per <", or left at his residen \y w Fairman, I 1 [ay., t04, (465.) 13. V i isition is to 1 tal in a town, some house in the town ■ . Lester, I : s«.) 14. [f 1 ' riers ; j m er that appointed for taking the deposition, and then take it, it may be read; bin th ■ ci ot adjourn to a distant day. 12, (.428.) 15. It fad I whicb i lie party may prove it was place I in the notice; and the comrnissii I sent, may id the caption. Anonymous, 2 Hay. 244, (432.) ] 6. i, which does uol r in its o; body, b liat parties it was taken, cam L Mur- ray v. Hay., 290, (172.) 17. The • permits the person, who has served the notice that a desposition will be taken, to appear before the • commissioner! and swear to that fact; and if it be shown by the certificate of the commissioners, the deposition may be read. Sawrei) v. Murrell, 2 Hay, 397; (597.) 1 Hawks. 205. 25. \ deposition must be sealed up by the commissioners, so as to prevent inspection and alteration; it ni certified under the seals of the commissioners. Ward v. Ely, 1 Dev,, 372. 26. Notice to a particular agent to take th dep >n of a aon-r ; ' ' A e s I - be read absolutely, is uot supported bya rule, authorizing notice to that agent to take the deposition of the same witness de bene esse, the witness being, at the granting of the rule, a resident of this State. Li Lee, 1 Dev., 164. 27. Notice to take a deposition, on a particular day of every week for three successive months, is insufficient. Beikllv. State Bank, 1 Dev., 483. _ 28. Where a notice specifies that a deposition will be taken between certain hours of the day. the deposition cannot be read unless it appears to have been taken between the hours specifi- ed. Harris v. Yarborongh, 4 Dev., 166. 29. A party offering the deposition of a witness, examined in the cause, for the , contradicting him, will not be per- iy of the-deposition ; but, if lie introduce it. lie must read the whole. Barton v. Morphis, -1 Dev., 240. 30. The deposition of a woman far advanced in pregnancy, and who, it was proved on the trial, had probably just been de- liver! d, co i u ithin th spirit of the act of 1803, and is admis- (See A v. Code, ch. 31, sec 6 i 31. A commission, directing the taking of a deposition to be i the trial of a suit, depending in the -'superior court of law and equity, ' instead of the " superior court of law," is valid. rang v. Dalton, 4 Dev., 568. 32. A party offering a deposition is not bound to read a state- ment of irrelevant facts contained in it; neither can the other 446 EVIDENCE.— VI. party read it for the purpose of contradicting it. Downey v. iturphey, 1 Dev. and Bat, 82. 33. The ac,t which requires process to be returnable to the term next ensuing its teste, does not apply to commissions to take depositions, which may be made returnable to any subse- quent term. Duncan v. Hill, 2 Dev. and Bat., 291. 34. Commissions to take testimony are issued at the instance, and for ihi' benefit,. of one of the parties, and he will usually make them returnable at the earliest day consistent with con- venience; but if through ' a wish to delay the trial, he should not do so, the non-execution of the commission will be held a i in ufficieni reasi q for asking a continuance of the cause. /'.,' I. 35. A notic i to take a deposition on Sunday is not good, and a deposits n tal? m on such notice must be reject* i. Sloans. WiUiford, 3 lied., 307. 3(5. A seal of the court is essential to the validity of a com- mission, to tal my by depositions, direct ms in a different county, from that of the court from which it issues. Freeman v. '.< wi \ 5 [red., 91. 37. The deposition of a witness, taken in a criminal case before th iii i ite, may be read in evidence on the trial of the prisoner, if the witness he then dead Siate v. Valentine, 7 Ired., 225. (See Rev. Code, ch. 35, sec. 1.) 38. in such .i ca e the deposition may be usedeithi r in chief by either party, if the witness be dead, or if he be living it may be used upon the cross-examination of the witness in court. Ibid. 39. The proof of such a deposition is usually, but not necessarily, by the magistrate or his clerk; but in this State, there hi ing no statutory direction as to the mode of proof, the' prol ist be a matter of sound discretion in the presiding judge,' n n view the general principles of evidence, alike neci i of the accused and the due administra- tion oi Hence, it was held, that where the examining magis rate was oeci ssaril'y absent, in the discharge i ' high pub- He duties, pi - oof by the clerk of the superior court, to which the depositi en returned according to law, thai he was pri se it when po ition was taken, that the exa nin ition of the mi ivas written down by himself, and thai le depo- sition, returned to his office and offered in evidei s in the proper handwriting ol : ' agi trate, was sufficienl t'oaul horize the rea ling of 1 ' iposition. Ibid. 40.. Where t was taken on the 28th December, 1847, on a. notice served on the 26th of thai month, under the act requiring tbr - da; i notice and the opposite party appeared at the time and object d to the length of notice, and declined to e, it was held that the deposition was inadmissible. Beasley v. Downey, 10 Ired., 284. EVIDENCE.— VI. 447 41. Of the days of notice for taking; depositions, one is inclu- sive and the other exclusive. Ibid. 42. It is no ground of exception to a deposition, that the notice was given to take the depositions of A, B and C, "and others," and tin :: of neither A, B nor C was taken. McDugald v. Smith, li Ired., 57(3. 43. The depo ition of an absent witness maybe received in evidence under the act, Rev. Stat., ch. 31, sec. 68, whenever the witness has left the State, either with an intention of changing his domicil, or under the expectation of beingabsent for a time, which will include two terms of the court, sa'j si mon In. But it cannol ''■ ,.when the witness is al I porarily for a short time, as in the case of a seaman on i to New York or CI I on, when his return maj i two or three Alexander v. Walker, 13 Ired., 13. (See Ri \ L. si c. 63. ) 44. A ti taken at ;i place out of this State, on the Monday "hi at which the suit was tri ate, is not ad ni ible in evidence. Taylo ;| i. 45. \\ gavi Dotice that, on a spei I day, he would take a in "at the house of W. i'.. (the wi to 1 a i ■ ■■ now pending in tl ioi court of I; ity, wherein I am plainti I ■• id yon are d if! .:." without mentioning- in what county the witness :ounty the suit was pendinj ingno evidence thai there was any other W. P., or : i nit be- tween the par i s than th • oneon trial; it was lwldtha.t the no- tice wa \ Kinsey, 6 Jones, 38. 4(i. \ [owing clerks to pass upond applies only to the ■ | ■ tiom of competeul witne , there- fore, he pi ed upon and allowed one to be read, which was taken i ity, tinder a corami on ni seal, it ■•■ ■ . depoi ition was inadmii ible rn v. 1/7/- iams, 6 . . (S ftev. ( lode, ch. '■ 47. A ition of a place, in a slighl particular, in a notice i i r .. will be no objection to th if there terms oi description in tin uch place may be identified. Pm rones, 102. i, reciting that it issued from the i ' c ity ( there being no such ( ivitpendi g in the superior ■ thai coun- ty, whi was authenticated by th ; iatu] of the clerk, ai J i < f that court, is good, notwithstanding the . r'iii'i-//, 8 Jones, 495. See I the superior to the supreme court, (111.) 448 EVIDENCE.— VII. VII. HEARSAY AND COMMON REPUTATION. 1. General reputation, or hearsay, is admissible as evidence in eases . Common reputation in the family is admi isible as evidence of a marriage in that family; and it declarations of a member of the family are evidence of such common repu- tation; but such declarations must have been mad before any contest had arisen relative to such marria . ... n v. Pur- nell, 4 Hawki 4. Common reputation is the best evidence of the state of a man's property, when it is collaterally quei tioned. State v. ( 'oefcrewie, 2 Dev., 63. 5. Where the question was one of domicil at the date of the the writ, and the defendant proved that tlie plaintiff, before the date el' the writ, had g '-'■■ from one county to another, and wished the jury to infer from this an abandonment of his for- mer linn)'. 1 Ik; testimony ot a witness, who swears that "this was net regarded in his (the plaintiff's) father-in-law's family, where the plaintiff resided, and where the witness, a member of the family, also resided, as an abandonment of the plaintiff's {inn place df residence," is admissible.; tin- it does nut appear thai the witnei 8 came to his knowledge by the ex parte hearsay of any of 'lie members of the family, but he may have derived itfr a ot) r cts, apparent at the time to the family. Fleming v. Straley, 1 Ired., 305. (I. Where to an action of debt, on a bond for one hundred dol- lars, the plea was that it was given to compromise an indict- ment fur a. misdemeanor, the ads and sayings of the sun of the plaintiff, who was shown to be an agent of the plaintiff, not in the presence of the plaintiff, are inadmissible in evidence. Red* man v. /'. '< rts, 1 Ired., 471). 7. The declarations of the grandmother of one. who is charged to be a person of color, that his mother was the offspring of a white man and herself, are not admissible evidence upon that question. States. Waiters, 3 Ired.,-!-;!."). s. The testimony of a witness, who has known a town a. great number of vears, may be evidence of a common reputation, that what was once called the town of Newton is now called the town of Wilmington. Toole v. Peterson, '.• Ired., 180. 9. Where the lessors of the plaintiff claimed as the heirs at EVIDENCE.— VII. 449 law of one A. D., who was dead ; it was held that the declarations of A. D., that the lessors were the children of a married sister deceased, and were her nearest living relations, were admissible in evidence to prove the fact of such relationship. Moffit v. Witherspoon, 10 Ired., 185. 10. Such declarations are competent to prove marriages as well as births. Ibid. 11. The declarations of deceased members of a family are competent to prove the time of the birth of a child belonging to that family, although there may be a family register of births in existence; for the one kind of evidence is of no higher digni- ty than the other. Clements v. Hunt, 1 Jones, 400. 12. The notes of an attorney, taken on the trial of a cause, may be read on the subsequent trial of the same cause, as evi- dence, of what a witness, since dead., swore on the former trial, provided the attorney swears that hisnotesare correct and con- tain the substance of allj the witness testified, although be has not now any recollection of such evidence independent of his notes. Jonesv. Ward, 3 Jones, 24. 13. Where a female slave declared that she was affected with a prolapsus uteri, and offered at the same time to submit to an exami- nation of her person, in verification of her statement; it was held thatproofof such offer was admissible as part of tier declara- tion, and as tending to show the truthfulness of it. Wallace v. Mcintosh, 4 Jones, 4;>4. 14. A witness is incompetent to testify to what a deceased witness swore uii a former trial, unless he says that he is able to state the substance of <ei:'» found, by a jury on such evi- dence, it is sufficient in law to defeat all right under a second marriage entered into during its existence, though the second marriage may have been formally solemnized and proved by di- rect evidence. Archerv. Haitkcock, o' Jones, 421. 18. The dei -la rat ion of a deceased per- en is admissible to show a corner tree, though it was not in view al the' time of the declar- ation, but the position of it was so described as to enable tliQ 29 450 EVIDENCE— VII.-VIII. witness, to whom the declaration was made, to find it. Scoggin v. Dairy mple, 7 Jones 46. 19. A certificate in writing, by a person still living, stating a payment of money, is only hearsay and is not admissible as evi- dence of such payment. Carr v. Stanley, 7 Jones, 131. 20. In an action of trespass for killing plaintiff's slave, where it had been proved that the defendant shot some person in the night time, near a particular place, at a certain hour, and the plaintiff's slave was found about that time, near the place, badly wounded with gun-shot, it was held competent to show that there was no rumor or report, in the neighborhood, that any other person had been shot about that time and near that place. Newh) v. JacksoR, 7 Jones, 351. See (Boundary — Lines of another tract called for, 4.) (Boun- dary — Of a parol evidence, 3-7-8-9-13.) (Evidence — Proceedings iu other suits, when and how far evidence, 14-16-20—28.) (Evidence — Admissions, declarations and acts of parties and privies, 53-89.) VIII. IN WHAT CASES A WITNESS MAY EXPRESS AN OPINION. 1. A witness, who has had opportunities of knowing and ob- serving a person whose sanity is impeached, may not only depose to tiro tacts lie knows, but may also give his opinion or belief as the sanity or insanity of the party. ( 'lary v. ( 'lary, 2 I red., 78. 2. In an action for a breach of a contract for the repairing a vessel, in not making the repairs according to the contract, after the plaintiff had given evidence of the condition of the vessel after she was returned to him, it was competent for him to intro- duce witnesses of skill in, such matters to give their opinion upon the evidence first given, as to the difference in the value of the vessel as thus repaired, and what her value would have been, if repaired according to the contract. And it is not neces- sary that such witnesses should be regular ship carpenters, if they have occasionally worked on vessels, owned and sailed in them for a long time, and possess the requisite skill to enable them to judge. Sikes v. Paine, 10 Jred., 280. ;-l. rtisan established rule in the law of evidence, that, in mat- ters of art and science, the opinions of experts nv<- evidence touching questions in that particular art or science, and it is competent, to give in evidence such opinions, when I lie professors of the science swear that tiny are able to pronounce thi m in any particular case, although, at. the same time, they say that pre- cisely such a ciise had not before fallen under their observation, or under their notice in the course of their reading. The effect of the evidence is, of course, to be decided by the jury. Stale v. Clark, 12 lred., 151. 4. Evidence, is admissible, as to the genuineness of a bank EVIDENCE.— VIII. 45I note of the opinion not only of cashiers and tellers of banks bu also of merchants, brokers, and others who habitually receive and pass the notes of a bank for a long course of time so as to Become thoroughly acquainted with them, and able > to jX bt tween a true and counterfeit bill, and have that knowledge among -other things, tested by the fact, that no hill pa sed by [red 111!" y r re nut §' emiine - Sta *e v - Cheek, IS 5. The general rale is, that a witness must speak of facts and knnot give his opinion as derived from these' facts The o'dy ; X S;: n zz %r stions of ™ e and of sau ^- *•*» 6. Physicians alone are permitted to give their opinion as to P ase ' ? ^ de ?° e ",' Physicians is competent to How, thatThe Pe^edidnotatthattimeprevailintheneighborh nwhich ie was sold, but did prevail i„ the townfabout seventTfiye 8. Upon the question before a jurry, whether there was not n erasure upon a note, a witness may properly say that hi hid see marL of an erasure, and that' £ hES paper efore in a better light, and could then see the erasure moredTs bctly than he could on the trial; and the witness need not ateh v. Waugn, 1 Jones, 483. j\ Av ' i: '" ss < wh :' did not Profess to be a chemist, nor to I- 7 Tin opinion on any branch of the science, but had only ^employed a few weeks in a drug store, was held not to be fj^d to testify as an expert. v„ ,, v . Hoyt, 2 Jones 70 \ h " 1V a s u urve yOT said, in giving his testimony^, that he d ,ri] !1 ""V 'rnerofatractoffand!wa P id had h.ar,' no reputntian as to its locality, itwas hetdthltU ^••""•>l>^ "■ «••■ hi... 1..,riv,., „,„„■■,,,,„.,, Ins Jin P ded on a form r survey, as to where such, corner was ,<-".- - i v. i, \ , Jon is, 1:9. dS - J 1 ' ;V ,vii " : ' : ' s ' vIl ° V ota Physician, cannot be allowed to >'' - ' ' . 7hetherasfaye,.from his appearance was or fcnot m good h, aith. jfcB v. ,]/V,/., ;7 . 6 Jones 178 Ji- T"' '" ■" t«fwhethertKe defendant wi a free ne^ro tun the meaning of the Revi I Code, chapter iff ffi l , . WM '"'" ", "" ( '""l-lent for one.wL said that he I the owner and manager of slaves, and had been so / elve year, and had giyen particular attention £ thefffSfeS 452 EVIDENCE.— Vl I I.-IX. the intermixture of the African blood with that of other races, and believed that he could distinguish between the descendants of the negro and white person, and negro and Indian, and whether a person had more or less African blood in him, to tes- tify as an expert to that fact. State v. Jacobs, 6 Jones, 284. 13. A .surveyor may, as an expert, express his opinion that certain marks on a tree, claimed as a corner, were proper marks for a corner; but he cannot expn ss an opinion that it was the corner of a particular grant. Glegg v. Fields, 7 Jones, 37. Sec (Evidence — Subscribing witness— Proof of lmndwriting, 14.) IX. PROOF OK CHARACTER. 1. In assumpsit by a physician for his services, defendant shall not call witnesses to prove the general character of the plaintiff as a physician. Jeffries v. Harris, 3 Hawks, 105. '2. In an action of trespass tor killing a slave, evidence of his good character is admissible to repel the presumption of he im- proper conduct. Piercer. Myriclc, 1 Dev., 345. 3. In an action for seduction, Hie defendant cannot prove that his general character is that of a modest and retiring man; the general rule, to which this forms no exception, being, that unless the character of the party be put directly in issue by the nature of the proceeding, evidence of his character is not admis- sible. McRae v. Lilly, 1 [red., lis. 4. In criminal charges, the prisoner's character cannot be put in issue by the State, unless he open the door by giving testi- mony to it. But it is not a conclusion ot law. that, from his silence, the jury are to believe that he is a man of bad character. Stater. O'Neal, 7 [red., 251. 5. Where in an action for a malicious prosecution it becomes ma- terial to enquire, whether a] arty was drunkata particular time, he may give evidence by witnesses, "ho have known him long and intimately, that he was not addicted to drunkenness; but. he cannot give in evidence his reputation ot' being a. sober man. Beal v. Robeson, 8 [red., -1(>. 6. In civil eases the general rule is, that unless the character of the party be directly put in issue, by the nature of the pro- ceeding, evidence of his character is not admissible. Ibid. 7. In an action on the case for the seduction of the plaintiff's laughter, it is competent for him to give in evidence, on the question of damages, the character of his own family, and also the pecuniary circumstances of the defendant. JJfcAiday v. Birkhead, 13 Ired., 28. 8. On the trial of an issue of devisavit vel /"<;/. in reply to proof that the propounder had used threats of violence in pro- curing the execution of the script, it teas held that it was not EVIDENCE.— IX.T-X. 453 competent for him to show that he was of an easy, quiet, tem- per, and facile disposition, and therefore not likely to threaten violence. Bottoms v. Kent, 3 Junes. 154 9. Reports that the plaintiff swore to a lie, or lies, in a distant county, cannot properly be submitted to a jury, as elements from which they are to make up their estimate of the character of the plaintiff. The jury must take the testimony of witnesses, who are supposed to be able to reflect the judgment of the pub- lic as to the party's character. Luther v. Sheep, 8 Jones, 356. See (Evidence — In cases of malicious prosecution an 1 slander, 22-21.) CEvidence — In criminal proceedings and indictments, 72-100-110-111-126.) X. TESTIMONY INADMISSIBLE FOR IRRELEVANCY. 1. In case for deceit in the s lie of a runaway negro, who was allegi '1 tu be unsound because consumptive, the defence was that the plaintiff knew this before his purchase; held bhat tin do- fendanl could not be allowed to show that the plaintiff's wife had carried food to the negro, while lurking about the plaintiff's farm before his purchase. Hart v. Newland, '■> Hawks, 122. 2. For the purpose of showing that a loan, and aot a gift, to a married woman was intended, it is aot competent, because irrel- evant, to prove that loans and not gifts were made to other daughters on their marriage. Adams v. Hays, 2 Ired., 361. 3. The record of the removal of a cause from one county to another is not revelant nor proper evidence to be submitted to the jury on the trial of the case, and counsel have no righl to draw any inference from it in their remarks to the jury. Bum- garner v. Manney, I 1 * Ired., 121. 4. Where a plaintiff charged the defendant as his agent, with having received the hire of negroes, subsequent to Nov< mber 1840, and the defendant offered to prove that another person had, as his agent, received the hires prior to 1840, it w ■- held, that the evidence was irrelevant and inadmissible. Bt y v. Downey, Ired.. 284. 5. Where evidence offered is irrelevant in law, and calculated tii mislead or prejudice the minds of wry, it is error in the court to receive it. State v. Arnold, 13 Ired., 184. (3. In a petition for damages for an injury to a saw mill, where it was admitted that the defendant's dam below, on the same stream, did injure plaintiff's mill, it was held to be irrelevant and inadmissible to prove, for the purpose of affecting the damages, that if the plaintiff would erect a more costly mill he could make more, notwithstanding the nuisance created by the defen- dant, than his mill could make in its present condition, without such nuisance. Johnston v. Itudesill, 1 Jones, 510. 7. An inquisition rinding that a person was a lunatic, at its 454 EVIDENCE.— X. date, is irrelevant to prove the alleged fact that he was so six months before that time. Nichols v. Pool, 2 Jones, 23. 8. It is irrelevant and improper for a witness, who is not qual- ified to testify as an expert, to say, upon a question of the forgery of a bond, that he had seen the writing extracted by chemicals from a piece of paper, which he held in his hands. Otcy v. Hoyt, 2 Jones, 70. 9. It is not competent for a creditor, in order to prove a par- ticular fraud, to show that the debtor had made a fraudulent transfer of other property to another person. Holmesly v. Hogue, 2 Jones, 391. 10. In an action for the breach of a covenant to teach an ap- prentice a trade, it is irrelevant and, therefore, incompetent for the defendant to show that he kept the apprentice at work with other apprentices of the same experience, and made no distinc- tion between them, when no evidence is ottered to prove that the other apprentices were properly taught. Bell v. Walker, 3 .Jones, 320. 11. The declarations of the deceased, that he was afraid that another person would kill him, is inadmissible for the prisoner, because irrelevant. State v. Patrick, 3 Jones, 443. 12. Where evidence of facts not pertinent to the issue was ad- mitted, upon the assurance of the prosecuting officer in a crimi- nal case that he would introduce other facts and circumstances to connect the prisoner with the facts deposed to, and he failed to do so, then the evidence of those became irrelevant and ought to have been withdrawn from the consideration of the jury. — State v Freeman, 4. Jones 5. 13. Where A sold a slave to B, for which he gave a bill of sale, arid took from B a bond for the purchase money, it was held to be irrelevant, and therefore incompetent, in a suit by B to re- cover the slave, to show that the bond had been surrendered and destroyed. Houston v. Moore, -1 -Tones, A_'l'. 14. The fact that the prosecutrix, on an indictment against a slave for attempting to ravish her, had made an indecent expo- sure to other slaves el' 1 he same master, which, however, was not known to the prisoner, is inadmissible as evidence for him, be- cause it is irrelevant to the issue. State v. Henry, 5 Jones, 65. 15. In a case where the question was as to Ihe ability of the debtor, who had some property, to meet the debt, if lie had been arrested, evidence of his being indebted to others was held to be immaterial and irrelevant. Jertkiwsi v. Troutman, 7 Jones, 169. 16. In an action for the fraudulent removal of a debtor, it was held, that a declaration made by the debtor, that "he intended to get the defendant into a scrape," was immaterial and irrele- vant." Mqffitt v. Burgess, 8 Jones, 342. EVIDENCE— XI.-XII. 455 XI. PRIVILEGED OR CONFIDENTIAL COMMUNICATIONS. 1. A communication voluntarily made to a counsel, after he has refused to be employed by the party making it. does not come within the rule of confidential communications, and is therefore admissible in evidence. Setzar v. Wilson, 4 Ired., 501. 2. Where an accomplice becomes a witness for the State, upon an assurance that what he discloses shall not be used against him, he may be cross-examined as to what he communicated to his counsel about the offence while he was himself charged, be- cause by becoming a State's witness such communications are no longer protected as confidential. State v. Condry, 5 Jones, 418. See (Evidence — Witnesses, their competency or incompeten- cy, 3b' ) XII. PAROL EVIDENCE, WHEN ADMISSIBLE AND WHEN NOT. 1. A witness may explain the condition of the assignment of a note. Greenley v. Yoi . • "' '■ ,IamhU subsequently to the bond, and Is evidence %™ h ^ T^ th ? rein mentione < l to b * paid. , v 1 ,"" r--' 1 ; 1 ;;" or satisfacti °» <* the bond, St i8 dec .nit, t + he ,P lamtl 1 fi ^0 Prove, that, notwithstanding the deed puported to be made for a valuable consideration 'none was given or contemplated, but that a gift of the m-onertv con veyed was upended. Johnson v. Tayh?, 4 Dev 355 P7 pei^V ^"d^B iva,l aloud from a written paper, any and Bat,334 P W ltwasread - **** v. ifo/i Dev. narnl l! h T< '' "T ^e oadoreement of a note, it was agreed by pan, between the endorser and endorsee, that if tlfe former Z !f -i Ute t0 he Iatter a ! ' ed for a tr ac1 of land, the latter e 1 h, :; V ; ,ll V ; ;''' l 1 tl ' , V- ', 1, ' : " T did aft ™ d * execute a « 1 1 t ° W which ^ accepted by the endorsee, LlfxS- , at prod of those tacts was not evidence tending to establish a contract variant from that contained in Se writteta 2™7 b "was.com petent to support the plea of "Tccord and satisfaction. Smitherman v. &» t # 3 Dev. Lid Bat., 89 -\ P^ol evidence is not admissible to vary, explain or con- tra. Iicta: ^agreement m writing. Donaldson v. Benton, i Dev. issued ?a Th e I? e ?r , " ;,v 1 be 1 !' CCcived t0 show when a writ issued iheaetol assembly, directing the clerk to .nark the dgnf : .ssumg processes only directory, and does not exdude^ cX^Tseo^ 1 ) 718 V - V "" h '' i "" 1 " l Ired ' 309 " ( See *■* to writfno nile ', that .V' here ? ar * ie B have reduced their contract llT f'iu aTOl ? vlde » c e shall not be introduced to alter or Sween^? 6 T^ mstr «. ?PpKe. only to controversies between the parties themselves, and those claiming under them. EVIDEXCE— XII. 459 Between one of the parties and a stranger the rule does not ap- ply. Reynolds v, Magness, 2 Ired., 2(5. 31. Where there has been a trial on a warrant before a jus- tice, and the entry made by him may well stand either for a nonsuit or a judgment on the merits, parol testimony to show whether the merits were passed upon or not is admissible. Justice v. Justice, 3 Ired., 58. 32. Where it appears that there was a written contract, show- ing the nature of the title to certain personal property in dis- pute, the party wishing to avail himself of that title must pro- duce the written contract, or account satisfactorily for its non- production, before he can give parol evidence of it. Graham v. Hamilton, 3 Ired., 381. 33. Where a paper writing is deficient in punctuation, and its sense may be varied as the punctuation is one way or anoth- er, parol evidence may be introduced to explain its meaning. Graham v. Hamilton, 5 Ired., 42S. 34. When, as to the extent of estates, or the particular limita- tion of estates, in a deed or will, the intention of the maker or testator is to be ascertained, the court must decide upon the face of the instrument itself; but when the question is, whether an instrument of writing is a will or a deed, it becomes a fact to be proved by all kinds of evidence, by which, in law, any other fact may be established; and the evidence, which arises from the face of the instrument, may be aided or opposed by ev- idenca aliunde. Clayton v. Liverman, 7 Ired., 92. 35. Where A hired a negro of 1) and gave the following sealed note, "On the 1st day of January, 1848, 1 promise to pay B one hunch id and thirty dollars, the slave is hired on.1 e terms as other slaves, for tin.' slave Evartson," it was held that this writing only referred to the price of the negro, and was not a memorial of any other terms of the agreement, and that as to these latter, parol evidence was admi ibli ; and further that to recover damages for a breach of the agre< mi at not contained in the sealed note, an action on the case, and not an action of cov- enant was the proper remedy. Ttoicfy v S ■ i<< ! ~ rson, 9 ired.. 5. 36. Where a society exists, which has its written rules and by-laws, it is not competent to show by parol testimony, that there are other rules and usages, independent of those contained in such vvritten rules aud by-laws. Holmes v. Johnson, 11 Ired., 55. :S7. Where, before a hiring commenced, a paper writing was read purporting to contain the terms of the hiring; it was held to be competent for the defendant to prove by parol testimony, that, also before the hiring commenced, the crier announced in an audible voice other terms ; as the hirer or his agent had a right to make such alteration. Satterfield v. Smith, 11 Ired., (50. 38. Parol evidence may be admitted to show a custom or usage 460 EVIDENCE.— XII. of a place, where a contract is entered into, for the purpose of annexing incidents to, and explaining the meaning of, terms used in it. But before the incidents can lie annexed, the con- tract itself, as made, must he proved. The incident cannot he used to establish the contract, nor can it be inconsistent with the terms of the contract. Moore v. Eason, 11 Ired., a(i. Receipts for money, which contain no evidence of a con- tract between the parties, are liable to be explained or altered by parol testimony; but it is otherwise where they are relied on as evidence of, a contract. Brown v. Brooks, 7 Jones, 93. 50. Where an executor delivered certain slaves to the lega- tees, under a power to do so conferred by the will of his testator, and afterwards a written memorial was made and signed by the legatees, as to the division made among them of certain of the slaves, it teas held, that such writing did not prevent proof by parol of the division by the executor of other slaves, so as there- by to explain the whole' transaction. Griffith v. Boseborovgh, 7 Jones. 520. 51. Parol evidence is not admissible to impeach an entry of a justice, allowing ten days tor a party to give security for ap- peal from his judgment, by showing that the entry was made, without requiring from the party an affidavit that he was then unprepared with security. Longv. Wearer, 8 Jones, 626. 52. Where a receipt was given, on the delivery of rice at a mill, setting forth the quantity and the terms of the deposit; it was held, in an action for the loss of the rice by lire, that the plain- ild not resort to parol proof to show- the quantity, without ofhis inability to produce the receipl on account of its loss or destruction. Ashe v. DeRosset, 8 Jones, 240, See (Arbitration and Award — When an award is to he sus- tained or set aside. L'li. ) ( Boundary — < If parol evidence.) (( !on- etables — < >f their elect ion or appointment, 8-12.) ( Deed- 1) ieds intrust, 3.) (Devise — Construction, who can take, 4.) (De- vise — Construction, as to what it includes, 20-25-28.) ( Execu- tion — Piuchaser at an execution sale, 60.) (Forcible Trespass, 6.) (Fraud — Conveyances, agreements, &c, fraudulent as to 462 EVIDENCE.— XII.-XIII. creditors, 40-41.) (Guarantee, 32.) (Justices of the peace — Of their jurisdiction, judgment and execution, 56.) (Legacy — Construction, what passes and who takes, 12-13-19-27-34-37- 59.) (Pardon, 6.) (Record, 6.) (Registration, 17-18.) XIII. ADMISSIONS, DECLARATIONS AND ACTS OF PARTIES, TRIVIES AND OTHERS. 1. The declarations of the counsel of the adverse party can- not be given in evidence. K<v Hav- wood. Clark v. Arnold., 2 Hay., 287, (467.) 8. Declarations of one, who had sold lands, cannot he given in evidence to impeach the sale. Gray v. Harrison, 2 Hay., 292, (477.) 9. A master of ;i vessel cannot give his own protest in evi- dence for himself. Cunningham v. Builer, 2 Hay., 392, (588,) S. P. Miller v. Ireland, 'ibid, 215, (389,) S. C. Tay., 308, (134.) 10. The declarations of a person now dead, made when he was owner of the land, respecting a corner, are not evidence in favor of a person claiming under him. Smithv. Walker, 1 Car., L. R, 514. (127.) 11. In an action by a father for the seduction of his daughter, lie may give in evidence the dying declaration of the daughter. EVIDENCE.— XIII. 463 jharging the defendant with having been her seducer. McFar- and v. Shaw, 2 Car., L. E., 102, (200.) (Overruled, by Barfidd f. Britt, 2 Jones, 41.) 12. Where the acts of a person may be given in evidence for jam, his declarations in relation to those acts are also proper Evidence. Hence, it was Jidd, that where a person was seen Minting the road with his friends and servants, his declaration hat he was limiting for lost notes, was evidence of the loss of he notes. Shenck v. Hutcheson, 2 Car., L. R, 432, (315.) 13. The declarations of a person are evidence against him, and dl claiming under him by a subsequent title; and he cannot letter his title by transferring it to another, or thereby affect ;he rights of those who have an interest in his declarations. Hence, in an action for a slave, the plaintiff claimed under a bill >f sale, dated 15th December, and defendant under one from he same person, dated 5th Dec, the plaintiff, alleging that he prchased I > fori the 5th, was permitted to prove declarations of [he vendor, made between the 5th and 15th Dec, that by an igreement between the vendor and himself, they were to meet pout the 15th, when plaintiff was to secure the purchase iionev, and the vendor was to make a title. Guy v Hall 3 tturph.,150. 14. Admissions, made to the sheriff by a person, that lie had io title to a slave on which the sheriff had levied an execution, ire not eA'idence of the want of title in the person Baking brd v. Lucas, 2 Hawks, 214. 15. When the plaintifl 1 a writing signed by the defendant, acknowledging that the title was in the plaintiff and Showing also that the defendant had been in possession more ban seven years under color of title; it was held, that the paper fas made evid mce for the defendant by its introduction by the Baintiff, and that, as his acknowledgment was not made until Wter hi i had repened into title, he was not affected >y it; it would have been othi rwise if mi University I //,■.-> Hawks, 370. 16. V\ ere a lefendant admitted the justice of an account, an fetion on which w mid h □ iarred by the stat ite of limi- fetions, but at t' produced an accounl of equal imouot against the plaintiff, wine!, he alleged was correct, it \as h all that the defendant said must be taken to the jury, to believe such partsas they might fcink proper. Ja vis v. Farrall, 2 Hawks, 570. 17. In an action for freedom, defendant gave in evidence a pcord to show plaintiff to be a. slave, from which it appeared Bat the procei dings of an inferior court on a haleas a rj us, pro- fcuncing him (ree, had been reversed on the ground oi want oi h court: and to rebutanyunfavorable inference I to give in evi< 464 EVIDENCE.— XIII. the declarations of one, not a party to the record, but who had once had possession of, and claimed title to, the plaintiff, under the party to the record of reversal, at the time the declarations were made. Free Jnckx. Woodruff, 3 Hawks, 106. 18. The return of an inventory by an administrator is evidence of the amount of assets therein .stated, against both him and his sureties. Armistead v. Harramond, 4 Hawks, 339. 19. When a person had said that he hail given a certain negro to another, his will of that date was admitted to explain his declaration. Moj-isey v. Bunting, 1 Dev., 3. 20. A survey, though ancient, made by the direction of the owner i if lands for his own convenience, is not admissible evi- dence for him, or for those claiming under him. Jones v. Hug- gins, 1 Dev., 223. 21. The acts and declarations of others are not admissible in evidence against any one, as affording a presumption against him, in the way of admission or otherwise; therefore, where the question was, whether A, had refused to guaranty a bank note t" B, it was held-, that the refusal of A to guaranty the same note on offering it to C, immediately before passing it to B, but not in his presence, was inadmissible. Anderson v. Raw- lins, 1 Dev., 445. 22. The declaration of a creditor, or of his general agent, that his debt is discharge,.!, is prima facie evidence of payment. State Haul; v. Wilson, 1 Dev., 484. 23. A lease thirty years old is prima facie evidence of the time the lessee took possession, and is admissible although produced by the lessor in support of his title, especially when it was admitted that the lessee took possession about the time of its date. Blair v. MiUer, 2 Dev., 407. 24. Where there is no allegation of fraud, the transfer of prop- erly in the hands of a consignee may be presumed from letters of the owner and vendee to the consignee, directing him how to hold the property, without an actual delivery, and without proof of a consideration. Cox v. Gordon, 2 Dev., 522. 2">. The declarations of a deceased tenant, made during his tenancy, as to the particular person under whom he lie],!, are evidence to show the tenancy, in controversies between Ins land- lord and others. But this rule has its foundation in necessity, and dues not apply where the tenant is alive, or where the de- clarations were made after the tenancy had ceased. Picket v. Picket, 3 Dev., 6. 26. A note given for the payment of rent, and proved by the subscribing witness to have been executed thirty years ante lit motam, is competent evidence to prove the date of the lessee's possession. But it is otherwise as to a recent admission of the lessee. Blair v. Miller, 3 Dev., 261. 27. In no case is the declaration of the grantor evidence for EVIDENCE.— XI II. 4fiii one claiming under him ; neither arc the calls of a grant to him, though of ancient date, evidence for those claiming under him, 8asser v. Herring, 3 Dew, 340. •28. A deed is evidence of its own existence, and, of course, of every thing which necessarily results from its existence, against all the world: but of the truth of the matters recited, acknowledged or declared therein, it is evidence onh against pdrties and their privies. daytvettv. McGimpsey, 4 Dev.. 89. 29 When a defendant gives in evidence part of a transaction in his defence, he cannot complain if the court permits the plain- tiff to show the whole, whether the transaction be strictly rele- vant or not. Gabaness v. Martin, A Dev., L'06. 30. Where a common design is proved as to several persons, the act of one in the execution of it is the acl of ill, and so is his declaration accompanying and explaining his act. Ibid. 31. The recital of a former, in a subsequen deed, is evidence of the existence of the former deed, against a party to the latter, an,d all claiming under him, but not against a stranger. But vAeu the admission contained in the recital is relied on by a stranger, for a fact operating in his favor, and there are also other la.-ts disclosed operating against him. the recital must be taken altogether. Hoyatt v. Phifer, 4- Dev., 2T.'>. 32. In a suit brought by a sheriff against his collector, for arrearages of taxes, a settlement between the sheriff and the accounting officer of the 'county is not evidence for him. Ba- lenger v. Allen, i Dev., 358. 33. Whenever a conversation between two persons is proper evidence in an action against ethers, it may be proved by either or both of the parties, between whom if took place; as where A communicated to Ba statement made to him by < '. and upon his examination could not recollect its substance, C is a competent witness to prove it. Grei te v. Cawthorne, 4 I lev.. 409. 31. In an action for an assault and battery, all the eireum* stances accompanying the transaction are admissible in mitiga- tion of damages; but it is otherwise of words spoken by either party at a different time. Ibid. .'I"). A conveyance by a stranger to the defendant, indemnify- ing him against loss by reason of the action, is admissible against him, esj.eei,aliy if it recite facts material to the issue, being sim- ilar to a declaration made in his presence, and not contradicted by him. Foster v. Frost, 1 Dev. 424. 36. The declarations of a party must be taken altogether, as well those to dischage as those to charge him; and where a person, to whom an account had he-en presented, did not object to any of the items, but only contended for further credits, what lie says must be submitted to the jury, along with the evidence of his admissions, arising from his silence as to the items. Walker v. Fentrt ss, 1 Dev. and Bat, 17. 30 466 EVIDENCE.— XIII. 37. In questions of boundary, a plat or map of an adjoining tract of land, made at the instance of the owner is evidence, as the act of the owner, against him and all persons claiming the same land under him ; though it is not conclusive and may be explained. Webbv. Hall, 1 Bev. and BaJL, 278. 38. Where it is to be inferred from facts before proved, that the wife is acting as the agent of her husbands, evidence of her acts or declarations is admissible against liiin. Torrence v. . The acts ami declarations of a slave apprentice are evidence on the part of the master, in an action by the owner, to show the temper and disposition of the apprentice. Clancy ~v. Over- man, 1 Dev. and Hat., 402. 44. Where a son. to whom the father had conveyed a. slave by deed of gift, but retained the po session by permission of the son. was allegi .1 to have stood by while his father was making another voluntary disposition of his property by deed, among' his children, and to have fraudulently concealed or misrepre- sented his title, it was held, that a private conversation, which occurred between the son and father, just before the execution of the latter t\vft\, in which the father assured the son, that by EVIDENCE.— XIII. 467 becoming a party to it his fight under the deed of gift would not be prejudiced, was admissible to show that the sod himseU was misled; and that it was admissible, also, to prove how the father held the slave. Jo es v. Sasser, 1 Dev. and Bat., 452. 4."). A memorandum signed by a deputy sheriff, setting forth that he had, at. the request of the sheriff, sold a certain tract of laud ar a particular time, upon a certain execution, is not admis- sible as evidence of the sale, nor of any other fact, unless he is dead. Hat upon a question whether the sheriff's deed, purport- in-- to lie executed in pursuance of such sale, was fraudulent, it may be admitted, for the purpose of showing merely upon what information the sheriff acted in executing a deed for land, which, he had not himself sold. Dobson v. Murphy, 1 Dev. and Bat.. 586. 4(1. To authorize the admission in evidence of a paper, pur- porting to contain the substance of a letter sent to the plaintiff; it was held to be sufficient, after a notice to produce the original, to prove that at a particular time, a letter written to be sent to the plaintiff an. I the same in substance with. the paper then off re 1 was seen and read by one witness, though he .lid not see it sealed and delivered to tin' messenger, and that another witness, about the same tine.', carried a letter to the plaintiff from whom he received another letter, which the plaintiff told him was in answer to the one he had brought. Overman v. Clermnons, 'J Dev. and Bat., L85. 47. A letter se.it by one of the parties cannot be given in evidence for him. to pi- >ve thefactd stated in it, but if the party, to whom it is addressed, write an answer to it, such answer can be read against him; and tin.' letter must also be admissible t explain the answer. The letter and answer form, together, a written conversation. Ibid. Is. A marriage settlement, in which the plaintiff was a trus- tee for a woman, may be given in evidence to show the plain tilt's influence with her, where evidence of such influence is admissible; but it is very slight evidence, and can be used for that purpose only. ////'./. 49. One party cannol give in evidence a conversation between himself and a third person, in the absence of the other party, for, as to what the party himself said, it was only his own decla- ration; and a to what the third person said, it was not on oath, and the opposite party had no opportunity to examine him. , v. (cN( i'. - I > v. and Bat, 2 i '.. 50. A claim to land, withoul possession, does not raise the presumption of a grant. It is also incompetent to show a mis- take in the d ascription of a deed. In both cases, it is nothing more than the party's own declaration, which, unsustained by accompanying acts, is not evidence for him, nor for any person 468 EVIDENCE.-— XIII, setting- up a derivative title under him. Danoy v. Sugg, 2 Dev. and Bat., 515. 51. In an action of trespass and imprisonmenl for an unlaw- ful arrest, it is admissible to prove that the plaintiff paid the defendant a certain sum of money, on account of the transac- tion for which the arrest was made, in order to show the animus which influenced the proceeding. Mead v. Young, 2 Dev. and Bat., 521. 52. In an action by a negro, to try his right to freedom, if evidence of his being reputed a freeman is offered, it is admissi- ble to show, in reply, arts of ownership inconsistent with such reputation. Sainpson v. Burgwyn, '■> Dev. ami Hat.. 28. 5;] In questions of pedigree, declarations of Seceased persons, to ho admissible, must he derived from those who are connected witli tin- family. Hayicood v. Barnett, '■> Dev. ami Hat., hi. 54 A man's previous declarations maybe received, though they are but slight evidence, to show tin' extent and true character of the dealings between him and another person ; and they will lie evidence against one claiming under him by a cotemporaneous or subsequent contract. Mayv.Gt itry, ! Dev. and Bat, 117. , r >.">. The affidavit of a party, made to obtain a certiorari, may ho used against him to prove any facts, which are of a character to ho proved by mere admissions or representations. But tin ■ad- missions in such affidavit will not be sufficient evidence against the ]>arty making them, to supersede the necessity for the other party's producing matters of record or a deed, under which he claims. Musliatt v. Moore, 4 Dev. and Bat., 124. 56. The declarations of a party, connected with his conduct. the next day alter the execution of a deed, are admissible in evidence, not for the purpose oi establishing the truth of the things declared, but to show from them that the party was (hen insane, in order thai the jury maj thence infer, if they should think such inference fair and proper, that he was so at the mo- ment when the deed was executed; and this particularly when a ground has been laid for the introduction of the testimony, bj showing that the party was at times insane, previous to the ex- ecution of the deed. Noricood v. Morrow, -1 Dev. and Bat., 442. 57. If the deed of an administrator for land, which his intes- tate had given a bond to convey upon the payment of the pur a chase money, contain an acknowledgment of the payment to him of the price, it will op< rate as a release, and he plenary evidence' of such payment, lint a recital in it, that it appeared that payment had been made to his intestate, is no more than his declaration of his belief of a fact, and per se is not evidence at all against the heirs of such intestate, who claim not under the administrator, but directly from the intestate. miliums v. Peal, 4 Dev. and Bat., 471. EVIDENCE.— XIII. 469 58. Where a defendant was sued in ejectment for thirteen contiguous tracts of land and the plaintiff proved that he was in tic actual possession of one, and contended that, as the others were adjoining, his possession must be considered as extending to them also; it was held to be competent for the defendant to give in evidence his own declaration, made at the time he took possession of one tracts, that he disclaimed any possession of the other twelve tract: and such declaration was received, not tn establish the verity of any fact asserted therein, hut either as part of the fact itself, or as characterizing and illustrating the fad of possession. Davis v. Campbell, 1 [red., 482. 59. In a civil suit against several persons, who have a joint interest, the declaration of one, as to a tact within his own knowledge, is evidence against the others as well as himself. But where a suit, as fa- instance an action of detinue, is brought against one for certain specific property, the declarations of anoth .- person, who holds other property under the same title, cannot he introduced t>> impugn the title of the defendant. He may he examined as a witness in the cause. Roivland v. Row- land, 2 [red., 61. 60. It is net competent for a plaintiff to give in evidence declarations made by a will-, in the life time of her husband, : i i liability to a debt, she not being shown to lie the 4" her husband, although site is now a party defendant on the record, as his administratrix. May v. Little, '■'> Ired., 27. 61. Where tic sell oi joods, at the time of the sale, pro- fei — . to sell them to the purchaser in his individual character, he cannot, in an action against a firm of which the purchaser was a member, give in evidence the declarations or admissions of such purchaser, that the goods were purchased for the benefit of the firm. Lazarvs v. Long, ■'> Ired., 39. lii'. The declarations of a party to a suit in his own favor, made in the presence of the opposite party, and nut contradicted by him. are admissible. Green v. Harris, 3 Ired., 210. 63. The declaration of a tenant in possession of a piece of land, that he claimed according to the boundaries of a patent, with which he cannot connect himself by a chain of title, is not admis- sihl ■ as evidence for himself or those claiming- under him. to show that his constructive possession in law extended beyond his actual possession, by cultivation, fences, &c. Byrmrn v. Thomp- son, ■"> I red., ">7.s. 64. Where the question was of a gift or loan by a father to his son-in-law, the declarations of the father to his daghter, wife of his son-in-law, two weeks before' the delivery of the property, as to the nature and effect of the delivery he was about to make r were held to be proper evidence in behalf of the father-in-law against his son-in-law, though such declarations were never com- municated to the latter. Moore v. Gwijn, 4 Ired., 275. 470 EVIDENCE.— XIII. C>5. A private conversation between a father and his son, and the advice of the latter, as to the conduct the father sin add pursue, in relation to the public sale of property which the father claimed, cannot be given in evidence in favor of the father. Ibid. (>(>. As the law will not permit the plaintiff to he a witness for himself, neither will it permit him to make his own acts and declarations, done or spoken in the absence of the defendant, ■evidence for himself, to impeach bis adversary's witnesses, or for any other purpose tending to support his own side oi the issue. Ward v. Hutch. 4 I red, 282. 67. Where a suit is brougbt ©n a constable's bond, against the sureties alone, a receipt signed by the constable, for a claim to collect, is not evidence against them. State v. Fvllendwider, 4 Ired , 364. (This rale is altered. See Rev. < !ode, ch. 44, sec.10. ) U.S. A surety, in general, cannot he affected by evidence of an admission made by his principal, unless il !»• pari oi' his contract, as i hat accounts kept by him shall be true. Ibid. (i!>. Where the constable is not a parry defendant, the plaintiff may examine him mi oath, and such testimony is of a higher grade than his receipt. Ibid. 70. Where the question was whether tolls were paid by a person to a public turnpike company during a certain period, the collector, during that period, having kept no hook:-:, ami being now dead, the circumstances, that he had collected tolls from the person just before that time, that during thatperiod, on a oontesi between the company ami the person, the company directed the gates to be shut against him unless the tolls were paid, ami that the person was bound to convey the public mail over the road, and that the successor of the deceased collector, immediately upon his coming into office, collected tolls, were evidence to be left to the jury that the tolls had been paid during the disputed period. Newland v. Buncombe Turnpike C'>i>ii> Ired., 3(1. 72. Where, upon a survey in an action of ejectment, the de- fondant admitted certain lines to '»■ the lines oi' the defendant's land, and, according to thai boundary, the defendant was in pos- session of part of the plaintiff's land without seven years pos- session undercolor of title, the court, upon the motion of the plaintiff's counsel, should have insl ructed the jury that the plain- tiff was entitled to recover. Wall v. Tomlinson, 5 Ired., 548. 73. An admission by a, plaintiff, that he had received a part of the money sued for, by an attachment in another State, is no ev- EVIDENCE.— XIII. 471 idence that the contiat was merged in a judgment of that State, where no record of the attachment is produced. Buchanan v. Parker, 5 Ired., 597. 74. The declarations and admissions of an agent, after his agency has ceased, as to past transactions, are not competent ev- idence against his principal. Williams v. Williamson, n' Ired.. 281. 7.">. To make acts of one person evidence against another, as (lie agent, the creation of the agency must, in the first instance he established by the proper evidence, independent of such acts and declarations themselves. Ibid. 7(!. The declarations of a person, who had executed a deed, made at a period subsequent to such execution, are not evidence against fchegrantee. Hut the declarations of a grantor, between ili' iiM ■ when the deed falsely bears date, and the time when it was actually executed, are evidence as to the fraudulent intent of the parties. Wardv. Saunders, 6 [red., 382. 77. It is sufficient to admit a witness to prove a conversation of the defendant, that he can say. he can state all that passed on the occasion when the conversation occurred, whether the rel- ative to thai controversy or any other subject. Itis no< neces- sary for him to I"- able to state all the conversations of the de- fendant, which he heard before or after the conversation pro- posed to be given in evidence. State v. Cowan, 7 Ired., 239. 78. The receipt of a deputy sheriff, for a claim put into his hands for collection, is evidence against the sheriff, in an act inn for tailing to collect the claim. And as such receipt binds the sheriff, it is. under the act of 1X44, competent evidence against his sureties as well as himself. State v. HcGJiee, 7 Ired., 377. (See Rev. ("ode. ch. 44. sec. 10.) 79. The declarations of a vendor, after he had sold property, an- not evidence against his vendee, as to the title of the prop- erty. Williams v Clayton, 7 Ired., 442. 80. Under the act of 1844, any acknowledgment or admission of the sheriff or other officer, where admissible against him, is also admissible against his sureties, in an action on his official bond. States. Woodside,8 Ired., 1 04. (See Rev. Code, uh. 44, Sec. 10.) 81. In aii action for a slave, whicha child claims on the ground that the slave was put in his possession by his parent, and that the parent afterwards died intestate without resuming the pos- session, evidence of the declarations of the parent made after the possession was transferred and not in the presence of the child, that he had lent, and not given the slave, is inadmissible. Cowan v. Tucker, 8 Ired., 426. 82. Where the declarations of one, alleged to lie an agent, are offered in evidence, it is incumbent on the judge to determine whether there is a prima facie case of agency, so as to render 472 EVIDENCE.— XIII. the acts and declarations of such person those of the party whose agent he is alleged to be. Munroe v. Stalls, 9 In. I., 49. 83. Merely serving a warrant for debt, issued by a justice, is no evidence that the officer was the agent of the plaintiff in the warrant. Ibid. 84. The declarations of a slave at any particular time, as to the state of his health, are from necessity admissible in evidence. Ttoulhaa v. White 9 [red., 63. 85. Whenever the bodily or mental feelings of an individual, at a particular time, are material to be proved, the expression of such feelings, made at or shortly before such time, is evidence sub- ject of course to be weighed by the jury. il.'ul. 86. A declaration in a deed, that the land conveyed by it had 1 n before granted to a certain person, is not evidence for the parties to the deed, that in fact it was thus granted. Crump v. Thompson, 9 [red., 491. 87. The receipt of a deputy sheriff, showing that he has, as deputy sheriff, received claims for collection, is good evidence in an action by the sheriff, against the sun-ties in a bond, which the deputy has given him tor his indemnity. Mcintosh v. Bruce, 9 Ired., oil. 88. The declarations of counsel on the trial of a cause, as to matters of fact, are not evidence against one, who was manag- ing the suit as agent lor the client himself. Moffitx. Wither- spoon, 10 [red., 185. 89. In an action of assault ami battery, when the defendant oifei'oil to show that he was not actuated by malice in making the assault, it is competent for the plaintiff to prove in reply that the defendant, since the commencement of the action, had proposed to fight him, though this proof could not have been of- fered in chief. Milh v. Carpenter, 10 Ired.. 298. 90. A party may give in evidence the declaration of a deceas- ed person, made against his interest, upon the subject matter in controversy. Peace v. Jenleins, 10 Ired., 355. 91. ( >n the trail of issues directed by the court, upon a petition for a divorce, the mere admission of the husband, that he was guilty of the adultery charged, is not admissible as evidence. Hansley v. Hansley, lo Ired., 506. 92. The declarations of a slave, as to his health and the con- dition of his body, arc admissible in evidence, in an action brought by his master to recover damages for an injury done to him. Biles v. Holmes, 11 Ired., 16. 93. In an action, in which is involved the bona fides of a con- tract for the sale of goods, the declaration of the vendors at the time of the sale, that they were indebted to the vendee, and an agreement between the parties that the price of the goods, or a part of it, was to be credited on that debt, is competent evidence, EVIDENCE.— XIII. 473 though the action is against third persons for seizing and con- verting the goods. Pattern v. Dyke, 11 Ired. 237. !i4. So, also the declaration of the vendors, made some time before the contract, to another person besides the vendee, that they weic indebted to the vendee, is competent evidence to prove such indebtedness, in an action by the vendee against third persons. Ibid. 95. Where a man has conveyed a personal chattel, bul still retains the possession, Ids acts and declarations, even qui nt to such conveyance, while he continues in possession, are evidence against the vendee or grantee on a question of fraud. Foster v. Wood/in, 11 Ired., 339. 96. The official returns of a guardian to the county c airt, of bh< ate of his account with his ward, are admissible evidence • the clerk of the county court for neglect of duly in not issuing a sei. fa. as required by law, to cause the guardian to renew his bond. Statev. Biggs, 11 Ired., 412, 97. In an action brought by a mortgagee against a creditor of tin- I'm. agor, claiming property under an execution against tiie mortgagor, ir being alleged that the mortgage was made with i ii mduisnt rati ni the de< urations : i the mortgagor 1 im- mediately before and in contemplation of the act, may be given in evidence against the mortgagee; but his declarations after tha ael are not admissible. Harshaw v. Moore, 12 Ired.. 247. 98. Where a plaintiff gives evidence of the declarations of a defendant, the defendant has a right to call for all he said at the same time, provided it be pertinent to the issues, or to the declar- ations proved bv the plaintiff, but not otherwise. Overman v. l:; Ired., 1. 99. It seems, that, although a proposition to compromise rejected by the other party could not be heard, yet admissions of facts, made by the defendant in the conversation with the party proposing the compromise, may. But there can he no doul.it, that such admissions are competent evidence, when made to one who informs the defendant that he has no authority to compro- mise. Daniel v. WUkerson, 13 Ired.. 329. 100. A map, which is .not shown to have been made before the conveyance under which a party claims, is not evidence for such party. Burnett v. Thompson, b"> Ired.. 379. 101. Tin- declarations of a sick slave, at any particular time, of his sufferings and condition, are evidence so far as they refer to the time at which they are made; but declarations of such a person as to his state and condition at any preceding period are inadmissible. Lush v. McDaniel, 13 Ired., 485. 102. A party may give in evidence declarations made by him- self and another in regard to, and accompanying the transfer of, personal property between them, for the purpose of showing the nature of the transaction; and a fortiori are such declarations 474 EVIDENCE.— XIII. admissible to sustain the other person, when he is called on to tes- tify to the transaction, and his credibility is impeached. Fain v. Edwards, Bush, 64. 103. The declarations of a person under whom a party derives title, made before, or simultaneously with the sale, are admissi- ble in evidence by the other party, to show fraud in the sale. Satterwhite v. Hicks, Busb., 105. 104. On a petition fur dower, the heir produced a deed from the husband dated thirteen years before his inter-marriage with the petitioner, and proved by a subscribing witness a delivery of the deed a short time before the husband's death, and low declar- ation that it had been delivered many years before, it was held that this declaration was ao evidence of any previous delivery, as against the petitioner. Pinner v. Pinner, Busb., 475. 105. Whether tin- tenant in possession is the tenant of the defendant, or of another, as whose land the premises in contro- versy had been sold under execution, is a question of fad to he submitted to the jury, and the deeds under which the defendant e-ntered are clearly admissible on that subject. McAvlay v. Etornhart, 1 Jones, 502. lOil. Evidence of "a family arrangement " to defraud credi- tors, by giving off other lands than the tract in dispute, to other sons as they arrived of age, it not being shown that the father was in debt at the time of I he conveyances, is not admissible on the question of fraud. Ibid. 107. To make i he acts and declarations of a person evidence against a party, upon the ground of his being an agent, such agency must he established by evidence independent of such acts and declarations. Royalv. Sprinkle, 1 dimes, ."ill."). 108. In a question of the fraudulent conveyance of a slave, the plaintiff may go into the particulars of a trade made by him with the alleged fraudulent grantor, and a subsequent modi- fication of that trade, in order to show that he was a. creditor of such grantor. Hblmesly v. Hogue. - Jones, 391. 109. Upon the question of the bona fides of a deed, alleged to have been executed I >y one in fraud of a contemplated marriage, what the husband said in favor of the deed, even before mar- riage, is not admissble against the wife claiming dower; be- cause her claim is under the law paramount to her husband. Pinner v. Pinner, - .'ones. ;>'.>.s. 110. A receipt is only a declaration in writing that a sum of money, or of some specific thing, has been paid or delivered by one person to another, and is not conclusive between the parties, but may he explained. Hill v. Robinson, 3 Jones, 501. 111. A warranty of the soundness of a slave, contained in a bill of sale is no evidence that the party making the warranty admitted thereby the soundness of the slave. Potion v. Porter, 3 Jones, 539. EVIDENCE.— XIII. 47a 112. A person cannot produce his own declarations in evi- dence in his favor, though he was not interested at the time he made them. Whitev. Gfreen, 5 Jones, 47. 113. Where a party, who made a com eyance of a slave which was alleged to have been fraudulent, remained in possession of the slave after the conveyance, what he said about the charac- ter ol his possession was held to be competent to impeach the conveyance. Marsh v. Hampton, 5 Jones, 382. 114. In an action for a deceit in tin- sale of a chattel, the de- fendant may. upon the question of a scienter, give in evidence what was told him, by tin- person from whom he purchased, at the time of his purchase. Hinson v. King, 5 Jones, 393. 11."). The declarations oi theprevious owner of a tractof land, made while owning it, are admissible as evidence against one claiming under him. Canskr v. Fite, 5 Jones, -i'21. Hi!, in a suit by partners for a debt alleged bo lie due the firm, tlie admissions of one of the partners, that lie had used the debl of the firm in settling a private debt he owed defendant, and that he had done so with the consent of the other partner, arc admissible against the plaintiffs. Carter v. Beaman, ti Jones, 44. 117. What is said by a person of color, in an indictment against a white man foraforcible trespass, in explanation of the possession which he then had of land, is admissible against the defendanl asa pari of the res gestae, hut what he said aboutsuch puss: ssion, after lie had left the land, is not admissible. Statev. E:it',<- Jones, 178. 120. T!i< admissions of an agent ha- the transaction of busi- ness, while he has the business in hand, are competenl evidence against his principal. Howard v. Stutt8\ 6 Jones, 372. 121. Where one. threatened with a suit for slander, gave a sum of money to another to indemnify him against loss by such a suit, and, to that end, took from such person a bond in a penalty conditioned to save him harmless, it was held, that such arrangement and bond were not competent evidence against 47C EVIDENCE.— XIII. the defendant as an admission of his guilt. Lucas v. Nichols, 7 Jones. 32. 122. A note given for rent, and reciting that the maker was the tenant of the payee, and had been so for ten years, is evi- dence in qualify and explain the then possession, but it cannot relate back and prove a tenancy for any length of time. McKay v. Glover, 7 denes, 41. 123. What was said by the defendant to one who was sent by him, not as an agent authorised to contract, but merely as a messi nger to call in the plaintiff, is nut competent as evidence of the contract between the parties. Pursell v. Long, 7 Jones., 102. 124. In an action of assumpsit, in which the plaintiff declared upon a special promise by the defendant to pay the balance of au account rendered, it was held that the account itself, as made out by the plaintiff, was not competent evidence of the correct- ness of the items, and that, therefore, it was error in the judge to permit the jury to take the account out with them, upon re- tiring to make up their verdict, if dene against the consent of the defendant. Watson v. Davis, 7 Jones, 178. 125. The return made by a constable, on the back of an exe- cution, is evidence tor him of the fact of a levy, and of the time when it was made. Grandy v. McPherson, 7 Jones, 347. 126. What was said by a constable at the time of making a levy, as to the fact of the levy, was In hi to lie admissible uspars rei gestce, and as corroborative of the evidence afforded by the return. Ibid. 127. The contents of a letter from the plaintiff to the defen- dant are evidence for the former only to prove a demand, or to' show the pertinency, or explain the meaning, of any reply which the- defendant may have made to it. Higgins v. Norfli Carolina Railroail Company, 7 Jones, 470. 12*. Where a letter written by the plaintiff, and strongly stating his case, was permitted to be read to the .jury, and pressed by his counsel in the argument, although it was admis- sible only for a limited purpose, it was- held to he error to pro- nounce that the whole letter had become evidence, because the defendant, after having in vain objected to its admission, had relied on a part of it for his defence. Ibid. 129. The possession of personal chattels is not such a fact, as entitles the party holding it to give his own declarations in evi- dence either to establish his title, or to contradict the witnesses of the other side. Strindlc v. Harden, 7 Jones, . r )75. 130. The declarations of a slave, that he is suffering from pain and disease, are 'admissible, and, to make them so, it is not ne- cessary to prove his unsoundness by other evidence. HcndersoJi v. Crouse, 7 Jones, 623. 131. A naked declaration of a debtor, in embarrassed circum- EVIDENCE. — XIII. 477 stances, that an assignment of a note theretofore made by him was bona fide and for valuable consideration, is not admissible as evidence against creditors that such was the fact, and in the absence of other testimony such assignment was held, to be void. Griffin v Tripp, 8 Jones, 64 132. Where, in an action to recover the value of certain slaves. the plaintiff sought to set aside a conveyance of them to the honor's daughter, and offered evidence that the donor had grand- children by another daughter, who were p -and in need of her bounty, it uh held competent, in reply to this evidence, to pro- duce a conveyance, by which the donor had provided for such grand-children, by the gift of other property. Hughes v. !/- nam, 8 Jones, 127. 133. Where the question betwe m the parties was, whether the plaintiff had agreed to accept a third person for the performance of the contract sued on, instead of the defendant, and the ten- der of a sum of money by such third person, and its refusal, to- gether with the accompanying expressions of the plaintiff, were relied on against him, it was held that a written receipt pi by liini. and offered as the condition on which he would receive the money, was competent evidence for him. Myers v. Glaerry, s Jones, 144. 134. Where the wwner of rice, which had been burned at ;t mill, went to one of the partners in the mill, who was'mot cogni- zant of the state of the business, and demanded a certain quan- tity of rice, to which he replied that "it was nothing more than he expected," it was held that this was not admission of the quantity. Ashev. DeRosset, 8 Jones, 240. 135. Where the question was whether B, who occupied the land in controversy, did so as the tenant oi the plaintiff, and B testified, that he was carried upon the premises by a person who Was a tenant of the plaintiff, and left there fraudulently and treacherously, in order to get him off another tract of land. and that he had never held it as the t< nant of the plaintiff, it was held to bi competent for him to state further, in order to strengthen his testimony, thai bis occupation was as the tenant of the defendant. Fousi v. Trice, > s Jones, 200. 136. The d larations of a wife, made shortly after the birth of a child, that it had been born alive, are not admissible for hi r husband, to prove his claim to be a tenant by the courtesy of his wii'-'s land. Gardner v. Klufts, 8 Jones, 375. ]'.',!. The declarations of the occupant of land, as to the man- ner in which he entered into : ! m, are competent as evi- dence against the defendant, in an action of ejectment in which he defends as landlord. FovM v. Trice, 8 Jones, 490. See (Compromise, 1-2.) (Deed — Of the executionand date of a deed. 27.) (Ejectment — Of the defence and herein of the con- sent rule, 17.) (Evidence — In criminal proceedings and indict- 478 EVIDENCE.— XIII. -XIV. merits, 8-12-13-15-17-18-25-30-32-33-34-40-42-51-53-64-68 69-70-74-79-81-82-86 -87-98-101-103-104-105-107-114-115, 122-124-128-129.) (Execution — When and to what county it may issue, and of its return, 2.) (Husband and Wife — Of actions by and against husband and wife, 1 I.) (Warranty — Of the damages to be recovered, 10.) (Widow — Other dower. 26.1 (Wills— Of holograph wills, 6.) XIV. I'lT.UC DOCUMENTS. 1. In ejectment to prove his boundary, the plaintiff offered Ln evidence the re< ord of a petition filed in 1768, by one of the old proprietors of the land, before the governor in council, praying for a re-survey of his grant, which was dated in 1707, the order in council for a re-survey, directed to the surveyor general, and the re-survey thereof made in L768; Jieldth&t the evidence offered was inadmissible. Osborn v. Coward, 2 Murph., 77. 2. A parish register of marriages, birth and dea hs, kepi pur- suant to the act of 1715, is good evidence to prove pedigree, and that the several persons, whose pedigree is thus proved, are within the saving of the statute of limitations. Jaco ks v. <,'■'- Hum. •"> Murph., 47. (The act of 1715 became obsolete, but, by act of 1850, marriages are directed to be recorded. See Revised Code, oh. <>s. sec. 4.) 3. Under the act of 1806, relative to the militia, the ci rtificatcs of the adjutant general was only evidence of the delinquency of the officer; but not that the person sued was the officer boun»l tn make the return. Governor v. Bell, 3 Murph., 331. 4. Under the act of 1806, the certificate of the adjutant gen- eral was only evidence of the delinquency of the officer, in not making returns to himself: he cannot, therefore, certify that a colonel of cavalry did not make his return to the major gen-^ oral. Governor v. Jeffreys, 1 Hawks, 207. 5. When a document is offered in evidence, purporting to have been signed by a public agent, his signature must be proved. Yonaguskee v. Coleman, 3 Hawks, 174. 6. To prove a misdescription in a license to a coasting vessel, the license itself should be produced; a mistake in thai part of the enrolment, which recites a description contained in a former enrolment, is no1 evidence of a similar mistake in the license. Felton v. McDonald, 4 Dev., L-06 7. The mere delivery by a clerk to a sheriff of a book, pur- porting to l>e a tax list, unauthenticated by the official certifi- cate of the clerk, is not competent evidence that such was the tax list. Kelly v. Craig, 5 Ired., 129. s. Copies of abstracts entered in Lord Granville's office are evidence. Clarice v Diggs, (> Ired., 159. 9. By the law merchant, a protest of a bill by a notary public EVIDENCE.— XIY.-XV.-XVI. 479 is, in itself, evidence. And byoui statute, such protest is prima facie evidence. Gordon v. Price, 10 Ired., 385. (See Rev. Code, oh. 13, sec. 9. ) 10. A copy of a grant taken from a book, in the office of the Secretary of State, purporting to have been issued in 1711!, by Charles Eden and others, who were the governor and council, although but lately registered, is admissible as evidence of title. Archibald v. Davis, 4 Jones, 133. 1. Where old judicial proceedings speak of the existence of old statutes, passed prior to any printed in the statute book, it seems, that such statutes will thence be presumed to have had an existence. Sladt v. Smith, 1 Hay, 248, (286.) '2. As the times of holding the county and superior courts arc fixed by the statute law, the court will judicially take notice oA the times when they commence. Fosters. Frost, I Dev., 424. 3. A statute is conclusive evidence as to all the public facts which it recites. Kello v. Maget, 1 Dev. and Bat., 414. XVI. RECORD OF COURTS. THE PROOF AND EFFECT OF THEM. 1. A certificate of the clerk of a court, that it appeared to him from the docket, that a judgment had been entered for so much, and that execution issued thereon, and that the rest of the record, except what appeared on the docket was lost, cannot be received as a copy of the record. Wilcox v. Ray, 1 Hay., 41(). (472.) 2. The loss of a record must be proved by some person on oath. anh not by the certificate of the clerk. 11. id. ;!. Whether the contents of a record, lost or destroyed, can be proved otherwise than by a copy, quaere. Harget v. 2 Hay.. 76, (243.) 4. Where the minutes of the court do rot state an adminis- tration to have been granted at a certain time, the certificate of the clerk, thai an administration was granted, is not evidence of I ostler v. ScbU, 2 Hay., 179, (375.) 5. When the record ol a particular term appears to be per- fect on its face, parol evidence shall not be givi n that an admin- istration was granted at that term. Ibid. (J. Wheie the records of a court of admiralty appear to have been loosely and carelessly kept on slips of paper, depositions may be read to prove that an order of sale was made in the cause. Jones v. Walker, 2 May., 291, (475.) 7. Parol evidence was admitted to prove that a ca. sa. issue. 1. and that the sheriff returned on it, "not found," and that it was 480 EVIDENCE.— XVI. lost or mislaid. Stuart v. ffitzgerald, 2 Murph., 2.35, S. C. 1 Car. L. R., 234, (17.) 8. The certificate of aclerk, that a deed had been ''duly proved," is sufficient, as everything will he presumed to have been prop- erly done; unless the certificate pies on to state how it was proved, and omits a material circumstance; as. it' it were stated that the instrument was "duly proved by the oath of A, who proved the handwriting of ]'>. II., the subscribing witness, and of J. H., the maker of it," without statin-- that B. II.. was dead or had removed away. Horton v. Haghy, 1 Hawks, 48. 9. An execution, when returned, becomes part of the record, and a certified copy thereof is evidence. Pigot v. /t, Hawks, 25. 10. Where the only evidence of a judgment, which could lie produced by a plaintiff in support of his title, was a mere mem- orandum of the amount of judgment on the clerk's docket, it was held, that the entry, having' been made in a new and frontier county, at the close of the revolution, might he received as a record, though if tin; judgment were of recent date it would be otherwise. Walker v. Greenle, 3 Hawks, 281. 11. In a suit against justices for appointing a guardian and not taking a bond with good sureties from him, a record was offered by the plaintiff, in which it appeared that, at the opening of the county courl at- a certain term, the defendants were on the bench, and that various orders w< re entered on the record of that day, and among them the appointment of the guardian in question; it ivas held that it was not prima facie evidence of the fact, that the defendants made the appointment, because a re- cord, if evidence at all, is conclusive ; it was evidence, from which no inference of law could be drawn, hut it should have been left to the jury to draw from it the inference of fact, that the defend- ants were the- justices who made the appointment, if they should be satisfied that such inference was just. liawls v. Deans, 4 Hawks, 299. 12. Where the clerk- of the court certified, that "the following and none other" were the bonds executed by thesheriff, thecer- tificate was held to he no evidence that no other bond was given, because this fact, not being of record, he could not certify it officially. Governor v. McAfee, 2 Dev. 15. 13. The Certificate of the clerk' of the county court is evidence of the prbate of a deed, hut it is supposed to be the result of tacts proved by the record; and, where it is contradicted by tho record, it is controlled by it. Burgess v. Wilson, 2 Dev., 306. 14. Theas of a court can lie proved only by its own records, and parol proof for that purpose is. therefore, inadmissible. Spencer v. Cohoon, 1 Dev. and Bat., 27. 15. It is not necessary that a transcript of a record, containing the copy of an execution, should set forth that there was a seal EVIDENCE.— XVI. 481 to the execution. But if such an objection would lie, it should have been ta 'ten when the record was offered in evidence and is too late on a motion for a new trial. Dawdle v. Sudam .';. Ired., 4.i. f ' 16. When the original records are offered in evidence in the court to which they belong, they should be received, because the court is presumed in law to know its own proceedings; but in another court, the proper evidence is a copy of the record' authenticated by the seal of the court Ward v. Saunders G Ired, 382. 17. En the case of a return of a justiee-'s execution levied on, land with the corresponding papers, it is not necessary that it should appear, by a distinct certificate, that these papers have been enrolled in bound books, as required by the act of Vssem bly. The ordinary copy of the record, certified by the clerk under the seal ,,1 the court, is sufficient evidence of the enrol- ment. Ibid. 18. Whether the minutes of the county court, showing- the- return by a sheriff of the list of lands to be sold &>r (axe.? due on the tax lists ot a particular year, and that it was read in open court, and thai a copy was set up in the court room, designating the tract of laud, the name of the owner, and the amount of tax unpaid, are not sufficient evidence to sustain a sale for taxes without producing the list itself, quaere. But these minutes are proper <-> ,,| . nc to be left to the jury, on the question of the ex- istence of such list, especially after the proper search has been proved, and its loss established. Hair v. Melvin, 2 Jones, 59 l9 - The act of 1831", ch. 96, concerning the burning 'of the records of Hertford comity, extended by the act of 1844 ch 53 (^Montgomery county, relates to deeds depending for their va- lidity upon such records, which were in existence when the re- cords of the said counties respectively were burnt, and not to deeds which might I xeeuted afterwards. Morrison v Cook* 2 Jones, lli. 20. A fact, which is required to be proved By a record can only be proved by an exemplified copy of the record itself and" no certificate of the clerk, as to its substance or effect will an- swer. Drake v. Merrell, 2 Jones, 368. 21. A record of the proceedings of a court, ordering partition ot a tract of land, and a long acquiescence and actual occupa- tion by the heirs according to the proceeding, are obligatory on them; and one thus acquiescing, who was mentioned as one of the hens m the body of the petition, but was not made a party plaintiff or defendant, is bound by the proceeding, and may therefore, offer it in evidence in support of his title. Arihibald v. Bans: 4 Jones, 133. 22. \\ hen the report of commissioners, making a partition of laud, is confirmed by the court, and filed among the papers of 482 EVIDENCE.— XVi-XVII. the case, in the clerk's office, it is enrolled, so as to meet the re- quisitions of the act. Ibid. (See Rev. Code, ch. 82, sec. 1.) 23. A plat by a surveyor, (representing various tracts and lots of land of the ancestor, corresponding in number with the num- ber of the heirs set out in the petition, filed with the papers of the case and registered with them, may properly be taken as the plat referred to in the report of the commissioners, and admitted as evidence to explain such report. ' Ibid. 24. Either of the two copies of an order made by the county court in appointing an overseer of a road, directed by the law to be issued by the clerk, is proper and sufficient evidence of the overseer's appointment. Thompson v. Kirkpatrick, 5 -Tones, 366. See (Ejectment — Trespass for mesne profits, 5-7—8.) XVII. PROCEEDINGS IN OTHER Sl'ITS, WHEN AXD HOW FAR EVIDENCE. A confession in an answer to a bill in equity may be given in evidence against the defendant, in an action by a third person. Kiddie v. Debrutz, 1 liny.. 120 (4S5.) 2. Where a slave has been recovered of a purchaser, in a suit by him against the vendor, the record of the recovery against the purchaser shall not be evidence of the title of the recovered but shall I"' received to show the fact of the purchaser's eviction and the amount of damages. Sanders v. Hamilton, 2 Hay.. 282, (458.) 3. An old survey, made in a suit between A and B, cannot be given in evidence in a suit between B and C, to effect the lat- ter. Sutton v. Blount, 2 Hay., 343, (524. ) 4. If the vendee of a slave be sued, andgive notice to the ven- dor of the. suit, the record of the recovery against the vendee is conclusive evidence, as to the vendor, of the superior title of the recoveror. Garland.v. Goodloe, 2 1 lay., 351, (537). (Overruled, see Martin v. Couies, 2 Dev. and Hat', 101.) 5. A record of a recovery in ejectment is not evidence, in an action by the purchaser against the vendor on a warranty, of the superior title of the lessor of the plaintiff. Pearse v. Templetorf, 2 Hay., 379, (578.) S. P., Martin v. Gowks, 2 Dev. and Bat., 101. 6. In an action by a father for the seduction of his daughter, her examination, taken under the bastardy act, is not admissible in evidence against the defendant to prove the fact. J\h Far- land v. Shaw, 2 Car., L. E., 102, (200.) 7. The return of a sheriff is prima facie only, and not conclu- sive evidence against his sureties. State Bank v. Twitty, 2 Hawks, 5. 8. The record of a recovery against a guardian is not. evidence against his sureties, to subject thein upon the guardian bond, for the default of their principal. Justices of Cumberland v. Bowell, 4 Hawks, 34 EVIDENCE.— XVII. 483 9. The record of a recovery by the creditor of an intestate, against his administrator, is not evidence in a suit by the cred- itor against the sureties of the administrator. Chairman v Clark, 4 Hawks, 43. 10. In an action on a justice's judgment, it may be proved that it was rendered by the justice while he was in another county, and the justice himself is competent to prove this fact Hamilton ■ v. Wright, 4 Hawks, 283. 11. A judgment obtained against a deceased person during his lite tune, and another judgment obtained thereon against his administrator after his death, is. both as to the administra- tor and his sureties, evidence of a debt due by his intestate: but it is not evidence against the sureties that the' administrator has, or had, assets to discharge it. But if the administrator have re- turned an inventory, that is prima facie evidence against the sureties of assets to the amount therein set forth. Arm-Mead v Harrarnond, 4 Hawks. 339. 12. The reei ad of a conviction of a slave is not evidence against the master, though notified to defend him, unless ex necessitate, when he is charged as an accessory to his slave. Nelson v. Evans, 1 Dev., !». 13. A'plat, made on an order of survey in one cause, is not evidence in the trial of another suit between different parties. Simpson v. Blount, 3 Dev., ,">4. 14. A witness, who is offered to prove what was sworn to on a former trial between the same parties by a person who is dead, must give the substance of the testimony, and not its effect. Ball letnger v. linn, is. ;; Dev., 460. 15. The record of a judgment against an administrator is not prima f,"i< evidence of assets in the hands of the administrator, in a suit, brought by the plaintiff in the original suit, on the ad- ministration bond against the administrator and his sureties Vanhook v. Bamett, 4 Dev., 2 lied., 338. 25. Where one was employed, under a promise of indemnity, to do an act which turned out to be a trespass upon another's property, and the employer and the persor employed were both sued, but the jury found the former not guilty, and assessed damages only against the latter; it /fas h in d.. 538. 26. Where, on a contract for the sale of a horse, the vendor was to retain the title until the purchase money should be paid, and EVIDENCE.— XVII. 485 the vendee gave his note for the price and took possession of the horse, it was hid to be competent for the vendor, in an action to recover the horse from one claiming under the vendee, to show a judgment on the vendee's note, and an execution thereon with a return of nulla bona, in order to show that the price had not been paid. Gaithcr v. Teague, 4 Ired., b'5. 27. Where, upon the trial of a warrant before a justice, upon a bond of $10, he entered as his judgment "warrant dismissed, and judgment for the officer for one dollar;" and it was proved, in the trial of a subsequent suit for the same bond, that the merits of the case were examined by the justice who tried the lirst warrant; it mis held that this would be a bar to the subse- quent suit, unless tlie plaintiff could clearly show that the jus- tice only inti nded to entera non-suit Masseij v. Lemon, 5 Ired.. 557. 28. The testimony of a witness on a former trial, where the present plaintiff and defendant were not parties, cannot be given in evidence, though that testimony was against his own interest. Harper v. Burroic, 6 [red., 30. 29. A judgment of an amercement against a sheriff is not conclusive against the sureties on his bond; and they may show that the judgment was either fraudulently or improperly obtain- ed against their principal. State v. Woodside, 7 Ired.. 296. 30. In a controversy about boundary, the plaintiff may give in evidence a recovery in an ejectmeni suit, twenty-live years ago, by one under whom the plaintiff claims against the defend- ant, and the subsequent abandonment by the defendant of the land now claimed by the plaintiff Gilchrist v. McLaughlin, 7 Ired., 310. 31. A and B being infants, their mother, who was adminis- tratrix of their deceased father, rented out the land of which they were tenants in common, to I), who entered into possession of it. The infants afterwards sued their mother in equity and obtained a decree against her, in which she was charged with the rent of their land, but it did not appear that the decree had been satisfied.; it was held that D, not being a party or privy to the suit in equity, could not avail himself of the proceedings in it to prevent his being sued as a trespasser. Hardy v. Williams, 11 Ired., 499. 32. In trespass for false imprisonment, the plaintiff proved that, under a claim of right, he entered a held cultivated and oc- cupied by one of the defendants, and gathered and took away corn there growing, when upon he was arrested for petty larceny by the defendant and committed to jail. The defendants then offered to prove, in mitigation of damages, that the plaintiff's land had been sold by the sheriff, under an execution against the plaintiff himself; and it was held that, under the circum- 486 EVIDENCE.— XVII.-XVIII. stances, the evidence was competent, and should have been re- ceived. Sawyer v. Jarvis, 13 Ired., 179. 33. Although a vend. expo, is not a part of the record, so as to carry absolute verity with it, yet it is the authority under which an officer acts and his only authority to sell, and is there- fore a necessary part of the evidence, to support the title of the purchaser at a sale under such execution. Simpson v. Hiatt, 13 Ired., 470. 34. So, the return of a sheriff on such vend, expo., being an of- ficial act, is also competent evidence. But the evidence, as in the case of the sheriff's deed, is onlj prima facie, and may be re- hutted by other evidence. Ibid. 35. A sheriff's return upon a"n execution is prima facie evi- dence of a sale, and also as to who was the purchaser. Simpson v. Hiatt, 13 Ired., 473. 36. The recitals in a sheriff's deed, of an execution, levy and sale, are prima facie evidence, in another suit, of those facts. Hardin v. Cheek, 3 Jones, 135. 37. In an action by petition to recover damages for the over- flow of land by ponding water, it is not competent to use the record of a former proceeding, wherein damages were recovered for the same thing, either as an estoppel, or to establish the wrong in any way. In such case, the jury must pass upon the whole matter, in as full and free a manner as in the former pro- ceeding. BurweH v. Cannaday, 3 Jones, 165. 38. In an action against an administrator on his administra- tion bond, for the non-payment of a judgment previously ren- dered against him. such judgment is conclusive evidence against him, both as to the debt and the existence of assets. Bond v. Billups, Dev., 108. 17. A registered copy of a deed cannot be received as evidence of title, without accounting for the absence o£the original. But this may be done by the affidavit of the party, proving the less of the deed. Smith v. Wilson, 1 Dev. and Bat, 40. (Copies of registered deeds are now in all oases admissible in evidence, unless by a rule of court the originals are required. See act of 1846, eh. 68, sec. 1, Revised Code, ch. •">?, see. lii ) 18. When a witness is called upon to prove tacts originally entrusted to memory, he may use a written memorandum which he had formerly made, in order to refresh his memory; but if, after such help, lie cannot recollect a particular fact, the writing is not admissible to supply it. This rule, however, dees nut ap- ply to written instruments or documents; for where such are lost or destroyed so that they cannot be produced, a copy of them, verified by the copyist to have been taken from the original, is admissible, even in preference to a. professed lull recollection of their contents by the witness, because such a copy is less liable to error than the memory of the witness. And so, for the same, reason, an a list i-.iet of 1 he original, taken and verified inthesam^ way, is admissible, independent of the recollection of the witness, ■and even in preference to it, as to the facts which it contains. Kello v. Maget, 1 Dev. and Cat, 414. Hi. A sworn copy &i a letter cannot be received without ac- counting for the original. Murphey v. McNeil, - Dev. and Hat.. 244. 20. As patents or grants from the State are recorded in the ■office of the Secretary of State, copies of them obtained from that office may be given in evidence, without accounting for -1 tho originals, by all persons except the patentees and grantees them- selves, or those claiming under them, who would be entitled to the possession of the originals. Candler v. Lunsford, 4 Dev. and Bat., 18. (See Revised Code, ch. 37, sec. Hi.) 21. It is not sufficient evidence of the loss of an execution, which had been in the hands of a constable, so as to let in secon- dary evidence, to show that the constable had removed to an- other State, and had left his papers generally with an agent, who EVIDENCE.— XVIII. 489 testified that the execution was not to be found among the pa- pers so left. Bearer v. Rice, 2 Ired., 280. 22. Where the clerk's office had been burnt and the records destroyed, and it was proposed to estahli h tUi assessment of a particular lot for a certain year, and the sheriff was offered as a witness to prove that he had seen either in the clerk's office the original list, or in his predecessor's hands an authenticated ropy of the tax list, and to show its contents, it was fold that, it not appearing that the said copy was losl or destroyed, the evidence was incompetent, and could net be left to the jury. Kelly v. Craig, 5 [red., 129. ■2'.). < )n the trial of an issue, il was incumbent on the defendant to show that he had given to his father a valuable consideration for a slave, and he produced a hill of sale, which he proved by the sul iscribing witness, and it. expressed a consideration of $300. The plaintiff'-s counsel asked the witness ifhe sawanymoney paid, and the witness replie 1 that he did not, but that he saw a bond delivered by the defendant to his father, and being asked by the same counsel what bond, he replied "the defendant's bond to maintain his father and mother during their lives." // was held that this examination, on thi the plaintiff, did n it dis- pense with the necessity of the defendant's producing the bond, or showing that he had used the proper means to procure its production, and then proving its contents. Walters v. }\'alt>-r^ 5 [red., 435. 24. In the trial of an action for a slave, a party was permitted to prove by parol the contents of a bill i under which he had claimed and held possession of the slave for more than thirty years, the bill of sale having been destroyed by the burning of the Register's office. iCfathingsv. Wi , 5 [red, 487. 2">. A purchaser of land at a sheriff's sale is not bound to pro- duce the original deeds, under which the person, whose land I, claimed title; and, not being entitled to the custody of the originals, he may read copies in evidence. Irwin v. Cox, l> Ired., 521. 26. Where the plaintiff alleged, as a proof of thi her purchase, that she had given a valuable consideration for a slave, and introduced a witness to prove that she had conveyed to him a tract of land as the consideration for the purchase of the slave, it was hdd that the deed for the land must be pro- duced, as tin.- best evidence, and the deed being in existence. though in another State., parol evidence of its execution and contents could not be received. Davidson v. Norment, 5 Ired.. 555. 27. It is well settled that the loss or destruction of a convey- ance may be proved by a party to the suit, as a ground for let- ting in, to the jury, the secondary evidence of a copy, or other inferior evidence; but the court never intended to relax the gen- 490 EVIDENCE.— XVIII. eral rule, that the best evidence must be produced, beyond the plain necessity of the case, or where it did not clearly appear that the higher evidence was not accessible to the party. Har- per v. Hancock, 6 Ireil., 124. 28. The loss of a deed, or other conveyance, must be proved by the person in whose possession it is presumed to be: but if a party, who is prima facie presumed to have possession of the original deeds of his grantor, because he bought with special warranty, swear that he never did have the originals, his evi- dence is not sufficient to establish the loss, as the presumption is, in that case, that the grantor has them, until rebutted by such grantor's oath. Ibid. 2D. Grants from the sovereign, when enrolled in the office from which they emanate, are there records, and copies of them may be used in evidence by all persons, except those who would be entitled to the originals. Clarkev. Diggs, <> [red., 159. 30. On a suit for the penalty for trading with a slave, when it was proved that the defendant offered to show the plaintiff his "barter book" in order to convince him that he had paid nothing to the negro, who had delivered the articles to his agent, it was /tfit/ not to be competent for the plaintiff on the trial, to prove by the witness, before whom this declaration was made, in order to show the time when' the transaction tool; place, what was the time of trading, as appearedon the book; for notice to produce the book should have been proved, before such evidence was admissible. Whitley v. Daniels, 6 [red., 480. 31. When a witness in giving his deposition refers to a note, he may, by way of identifying it, recite the contents of it, and the deposition will be admitted on the trial, provided the origi- nal note is then produced. Jones y. Herndbn, 7 [red., 79. 32. The copy of a graut from the register's office is good evi- dence, where the production of the original is, from any cause. dispensed with. Osborne v. Bal/cw, 7 Ired., 415. 33. 'fhe presumption is that a person, who is entitled to a deed, has it in his possession, until the contrary is proved; and that may be shown by the affidavit of the person so entitled, in order to let in a copy or the contents of the deed. Wylie v. Smither- man, 15. 4."). Where the action is for the detention of a written instru- ment, it is not necessary to give notice to the defendant to pro- duce the paper on the trial, previously to proving its contents, as the suit itself is sufficient notice. Griffin v. Black, 2 Jones, 1. 46. Where notice was given to a prisoner in close' custody, four days before the trial, to produce a certain paper, which was traced to his possession, his residence being only four and a half miles distant when he received the notice, it was held that this was sufficient to authorize the admission of secondary proof of the paper. State v. Hester, 2 Jones, 83. 47. To supply the loss of a deed under the act of 183G, cli. 68, in relation to the destruction ot the records of Hertford county. extended by the act of 1*44, ch. §3, to Montgomery county, proof that a deed had been seen by several persons, but they could not say what were the boundaries of the land mentioned in it, is not sufficient far the purpose intended. Ward v. Hat- ley, 2 Jones, 88. 4.S. The word •• copy " generally presupposes an original, but not always. Thus where a telegraphic operator deposed that he sent a "copy" of a dispatch by the telegraph, it is not to be as- sumed without proof, that the dispatch sent was from a written original in his possession, and it was error in the court to reject the deposition, because no original had been produced or ac- counted for. Banks v. Richardson, 2 Jones, 109. 41). The contents of a paper writing cannot be proved by pa- rol, unless notice has been given to the adverse party, who has it in possession, to produce it on the trial; and this rule applies to the ease of an original will, which was proved and recorded according to law, but the record of which was destroyed by the burning of the court house where it was deposited. Mwrchison v. Mcleod, 2 Jones, 239. 50. When a deed is lost, and the record of its probate de- stroyed, there is no statutory provision for proving that it had EVIDENCE.— XVIIL 493 been duly acknowledged or proved before its registration; and in such case the proof must be made according to those rules, where there was proof that the deed had been registered, and the reg- ister testified that he had held the office frem the time when the deed was made up to the time of the trial, and that during that period no deed had been registered which had not been duly proved, it was held that the proof was sufficient to authorize the presumption that the deed had been duly proved before regis- tration, and. therefore, a copy of it was admissible in evidence. freeman v. Hatley, 3 Jones, 115. 51. Parol evidence of the contents of adeed conveying a slaved is not admissible, if it were not proved and registered, although full proof has been made of the loss of the instrument, and proper notice given of the intention to offer secondary evidi nee of its content^. Tooley v. Lucas, 3 Jones, 146. (Sic Revised Code ch. 37, sec. 19.) 52. A copy of a will, dated in 174], and found in the office of the Secretary of State, having three subscribing witnesses, and being otherwise in proper form to pass land, is admissible in evidence under the act of 1852, though there is no other evi- dence of its probate. Stephens v. French, 3 Jones, 359. (See Revised Code, ch. 41, sec. 12. But now by the act of; 1856. ch. •>2, such copy will not be evidence unless a certificate of probate appear on the will.) 53. In an action of deceit on the sale of a slave, the plaintiff must prove the sale: and if that were by a bill of sale, it must be produced and proved by the subscribing witness, or its loss or absence account d for before its contents can be shown Gwvnn v. Setter, 3 Jones, 382. ' J 54. Where a written instrument went, into the hands of a »er- son who left the State, and there was no evidence that it had been lost or destroyed, it was held that its contents could not be proved, even though a notice to produce it had been given to the oppositi party. McCracken v. McRary, 5 Jems. 399. 55. Where the written appointments of proxies to act in the meetings of the stockholders of an incorporated company had, alter being used, been thrown aside as useless. /, ,.,. /. ',/ mi t to be necessary to \ how that search had been made, preliminary to the introduction of parol evidence of their contents. Haywood and Pittsboro Railroad Company v. Bryan, 6 Jones, 82. Where the contents of a written instrument w< re off red and received, upon t he assurance of the counsel offering them, that he would subsequently show the destruction of the instrument, which he did, it was held that the reception of the evidence was proper. Sta'e v. Bluk, 6 Jones, 510. 57. In a suit against the guarantor of a note, the note itself must lie produced on the trial, or its non-produetion satisfacto- rily accounted for; and the fact that a suit had been brought on 494 EVIDENCE-XVIII.-XLX.-XX. it against the principal debtor in another State, is no exception to the rule; for the note itself might, under an order of the court in the other State, have been withdrawn on leaving a copy, or the refusal of such court to make such order would account satisfactorily for its non-production, so as to allow of secondary •evidence of its contents. Casey v. fVUUnins, b' Jones 578. 58. Where the question arose collaterally whether a certain promissory note had been paid off and discharged, (7 was hdd that the fact of payment might be proved without the produc- tion of the note itself. Paije v. Einstein, 7 Jours 147. 59. The Rev. Code, chap. 37, sec. 16, makes a certified copy of a registered deed evidence. Hughes v. ftebnam, 8 Junes 127. See (Evidence — Parol evidence, when admissible '11. ) XIX. PROOF OF OFFICIAL BONDS. 1. Guardian bonds, being taken by public authority, have a high character of authenticity, and. need not lie veretied by the ordinary tests of truth applied to mere private instruments. namely, the obligation of an oath, and the cross examination of witnesses; therefore, when the execution of such bonds, taken from their proper depository and lost, is denied by plea, it is only necessary to prove the existence of sue]] a bond tiled in the court, and the identity of the defendant, in order to sustain the affirmative of the issue. Kelfo v. Maget, 1 Dev. and Bat., 414. 2- A registered copy of a clerk's bond may be read without other proof, and of course the original, when proved ami regis- tered as the acts provides, may also be rend at the trial without other proof of its execution. Short v. Currie, 8 Jones 42. (See Key. Code, chap. 19, sec. 9, and chap. 37, sec. Hi.) 'J. It seems that, at common law, official bonds were not sub- jected to the same tests of strict proof, as instruments between private individuals. Ibid. XX. PROFESSIONAL BOOKS, OR BOOKS OF SCIENCE. 1. Professional books, or books of science (e. g. medical books) are not admissible in evidence, though experts may be asked for their opinion and the grounds for it, which maybe m some degree founded on books, as apart of their general knowledge. Melviii v. Easley, 1 Jones, 386. 2. Where counsel, in his address to the jury, referred to and commented on a book of science, which he held in his hand but did not read, as evidence in the cause, without being interrupted by the adverse counsel, it /ens held that this was no waver of the objection to the book, for it was the duty of the judge, in his instructions to the jury, to present the case to them properly, and to correct any errors into which the counsel may have fallen, EVIDENCE.— XX.-XXI. 495 and it will be error for him to give the same effect to the book in his charge, as if it had been read in evidence to the jury. Ibid. XXI. BOOKS OK ORIGINAL ENTRIES, ACCOUNTS, RECEIRTS, ORDERS, CHECKS, WAYBILLS, AC. 1. The receipt of an attorney is admissible after his death, to prove the time when bonds were put into his hands for collection. Alston v. Taylor, 1 Hay.. 381, (439.) 2. Proof of a clerk's handwriting, in entries madein the plain- tiff's li< inks, shall m>t be admitted, while the clerk is living, though he mav be absent from the country. Kennedy v. Fairman, 1 Hay., 458, (527.) 3. The log book of a vessel may be received as evidence of the time of her arrival at, and departure from, a port. SmaUwood v. Mitch 11, ■> Hay.. 145, (318,) •i. An order for money, sent to and retained byaperson, ispre- sumptive evidence of themoneybeingpaid thereon ; bul not so of an order t'elegates. Ibid. 3. A record from the court of another State should be authen- ticated by the seal of the court, and if there be no seal, that fad should be certified. Alston v. Taylor, 1 Hay., 881, (439.) 4. The printed statute book of another state may be read as evidence of the law in that State. Poindexter v. Baker, 2 Hay., 173, (364.) (Overruled by State v. Twitty, 2 Hawks, 441.) For the manner in which the statutes of ether States are new to be proved, see Rev. Co'de, eh. 44, sec. 3. .">. A record of the proceedings against a bankrupt, attested by the clerk of the district court, is good evidence; the act of ■ Ion -s nni requiring the certificate of the presiding judge in the case of records from the United States courts. Murray v b, 2 Hay.. 290, (472.) 6. The titie of a statute is no part thereof; when, therefore. on an indictmenl for forgery, a certified copy of a record was prod 1 1 m .1 of an act of South-Carolina, reciting the title of another act of that state, it was held that this was not sufficient to estab- lish the present existem f the act referred to as a certified copy of the act itself would be better. State v. Welsh, 3 Hawks, 4()4! 7. The act of 1823, directing the mode in which the laws ol the other States shall be proved, is substantially complied with by a certificate under the hand and private seal of tire secretary of State, accompanied by a certificate of the governor, under the seal of the State, as to the official character of the secretary. State v. Jackson, 2 Dev., 563. (See Revised Code, eh. 44, sec. 3 ) 8. The ci itificate of the Secretary of state, in relation to the statutes of another State, given in pursuance of our statute, is evidence in criminal as well as civil eases. State v. Patterson, 2 Ired., 346. '.*. To prove the record of a suit in South-Carolina, the plain- tiff introduced the certificate of .!. R., clerk of the court, under the seal of the court, "that the annexed are correct transcripts of the original proceedings, filed in this suit, of YV. T., adminis- t iter r. W. L." to which was added the certificate of the pre- siding judge, "-that -i. R., who gave the attestation above set ferth, is the clerk of said court, and keeper of the records thereof, unci that siid attestation is indue form;" it toas held that this authentication was sufficient. Lie v. Gause, 2 Ired., 440. 10. What is the law of another state, (not contained in a statute,) is, like the law of foreign countries, a matter of 'fact to 32 498 EVIDENCE.— XXII. be tried by a jury, and cannot be determined by the court. Moore v. Qwynn, 5 Ired., 187. 11. Where a case arises under the .statute of a sister state, the statute being properly authenticated under the act of Congress, or proved under our act of ass< inbly, it is the province of the court to decide, both upon the i ■ i. ,< ace of the statute and its proper construction. Ibid. 12. Where a decree or judgment in another state is produced in evidence in one of our courts, it is not ne< i I ■ how, by any extrinsic evidence, thai I tit or decree was war- rani i by the laws of the state in which it was pronounced ; the decree or judgment, itself, being the high il i vid< m e of that fact. Davids n v. Sharpe, 6 [red., 14. 13. The certificate ofthepresidingmagistrateofacourt of record in another state, which merely ■ i '■' rth that A B,wlio attests the transcript, was the clerk oi thai court, but does not declare that "his attestation is in due form of law," not being according to ihe act of Congress, cannot be reci iv< .1 in evidence. Shown v. Barr, 11 [red., 296. 14. Where a copy of a statute of anoth r state has been re- ceived in evidence in the cour,t below, up< □ insufficient proof, yet, if it be made to appear to the supreme court, from an official and proper source, thai the cop;* i rts ived in evidence was correct, a vtmin de novo will no1 be awarded for that i rror. Ma- Duguld v. Smith, 11 J red, 576. 15. To receive iii evidence, under our statute, a certified copy from the secretary of stale, of an ad of as embly of another state, it is sufficient that the seal of the state be attached to the certificate, required from the governor. It is not necessary thai it should be attached to the secretary's certificate. Slate v. Qk '■■ 13 Ired., 114. 16. A transcript of a statute, once duly certified by the secre- tary of State, in the manner pi ribc b our law, is evidence at all times of its being in fore .according to its terms, unless a repeal be shown. Ibid. (See Revised Code, oh. 4 I i c. 3 ) 17. Th • copy of a will of a person residing in i I - (admitted to probate there,) disposing of pn bin this state, must have been allowed, lil d a I rei led in the county court here, in order to render it admissible in evidence under Ihe act of 1844, ch. 88, sec. li. Its mere authentication from abroad does not make it competent evid ■ ' .',"<< ■' v. Hearne, Busb., 185, S. P. AV'/.v v. Ross. Busb., 297. (See Rev. €ode, ch. 44, sec '.). and ch. 117. sec. 17.) 18. Before a will made in another state can be received by our court, as having been established before a tribunal in the other state, it must appear from the record made by such tribu- nal, that such will was judicially passed upon, and allowed by the tribunal. Drake v. Merrill, 2 Jones, 368. EVIDENCE.— XII.-XXIII. 499 19. A will, containing a devise of Knd lying in this state made by a citizen of another state, can have no validity or opera- tion, unless it be proved, as prescribed by the act of 1844, eh. 88, to have been properly executed, according to the laws of this state. Ibid. (See Rev. Code, ch. 119, sec. 17.) 20. A will, containing a devise of land lying in this state, made by a citizen of another state, cannot have any validity or operation, though proved in the court of that other state, unless it be proved by the oath of witnesses before the proper court of this state, to have been properly executed, according to the laws of this state. Ward v. Hearne, 3 Jones, 326. 21. The court cannot take judicial notice of the law of an- other state, or of a foreign country, but it must be proved as a faettoflie court, and, when thus proved, it is the duty of the court to instruct the jury as to the meaning of the law, its appli- cability to the case on trial, and its effect on the case; and it is erroneous to refer the whole question to the jury without such instructions. Tin per v. 3/oorc, 5 Jones, 1;)(). 22. '■ ipy of a deed, inter parti ?, ex outed in pais, ae- knowledged and Recorded in the court of another state, is not such a record and judicial proceeding as can be authenticated uiiilerilie provi ions of the ant of Congress of 1790. Warren v. Wade, 7 Jones, 494. (See Revised Code, Appendix, 623.) 23. If the copy of the deed from an office booh had been au- thenticated in the manner required by the supplemental act of Congress, passe 1 in 1804, it might, perhaps, have been admitted, under 1 hat act. Ibid. 24. Before a will of personalty can be received in our courts, as having been established in the tribunal of another state, it must app ear, b; a properly authenticated exemplification of the uch tribunal, that the will was duly proved b< Fore it, and that the tribunal was the proper court of probate of the testator's domicil. Toionsend v. Moore, 8 Jo -. i 17. (Wills — Of the probate and re-probal 38 56 58.) XXIII. EVIDENCE IX CASES RELATING TO WILLS \XI> TESTAMENTS. 1. '1 he interest, to exclude a witness to a will, must be either an exp I directly to him, a legaoj with an express usd for him, or a secret tru ; or agreement on tic part of the lega- tee for his u -, •; and a declaration by witness, that the legatee holds for his use, will not exclude him. unless it ]>e proved that the legatee had made an engagement to hold for his benefit. Rogers v. Briley, 1 Hay, 256, £295.) 2. Though a fact be positively sworn to by one or two wit- nesses, and they agree pretty well in their testimony, yet the jury, either from their character, or the circumstances of th© 500 EVIDENCE.— XXIII. case, may disbelieve them, and find against their testimony. Ibid. 3. Where an ambiguity does not appear on the face of the will, but is bred by the evidence, it may be explained away by evidence; an averment may ascertain the subject matter of a devise, but not add to the will, or take from it, or in any wise alter its effect. Hatch v. Hatch, 2 Hay.. 32, (191.) ■4. The subscribing witness to a will may lie called by the ca- veator to disprove the testator's sanity. Hampton v. Q.arland, - Hay., 147 (320.) 5. A copy of a will, which has been proved, cannot lie given in evidence, unless attested by the clerk. Raxj v. Mariner, - Hay., 385 (585.) 6. Parol evidence is not admissible to show that a devisor used tile word •heirs" in his will, in a sense different from its legal meaning. Stith v. Barnes; 1 Car. L. R., 484 (96.) 7. On an issue of tie vinavit vel non, where the executors and de- visees are parties, their declarations are evidence against them- selves. McCrainev. Clark, N. C. Term, E., 278, (698) S. C.,.2 Murph. 317. 8. Evidence is admissible of the declarations of a testator, made at any time subsequent to the execution of the will, which goto show that the testator believed the contents of the will to be different from what they really are; or declarations by testator of any other circumstances, which show that it is not his will, are admissible. Red v. Reel, 1 Hawks 248. '.!. On an issue of del isavit vel non, the surety on the admin- istration bond of the administrator pendente lite is a competent witness in support of the will. Martin v. Hough, 2 Hawks 368. 10. To entitle a party to give parol evidence of the execution or contents of a will, alleged to be destroyed, where there is not sufficient evidence to warrant the conclusion of its actual de- struction, the party must show that he has made diligent enquiry and search after the will, in the place where it would probably be found if it existed; and it is the province of the court, in the first instance, to say whether there is sufficient proof of the loss or destruction of the instrument, or whether sufficient enquiry has been made to let m parol evidence. Eure v. Pitman, 3 Hawks 364. 11. A will cannot be offered in evidence for any purpose with- out a certificate of the probate. Sasser v Herring, 3 Dev., 340. 12. An attesting witness is the witness of the law, and may be discredited by any one who examines him. Growell v. Kirk, 3 Dev., 355. 13. An attesting witness to a will may be asked his opinion of the testator's sanity, but the same question to another witness is improper. Ibid. 14. In an issue of divisacit vel non, declarations of the suppos- EVIDENCE.— XXIIL 501 e$ testator, made after the execution of the will, are admissible to prove that it was obtained by fraud, notwithstanding the act of 1819, to prevent frauds in the revocation of wills. Howell v. Barden, 3 Dev.. 442. S. P., Hester v. Hester, 4 Dev.. 228. 1T>. A widow, who dissented from her husband's will, and had her dower and personal estate allotted to her, as in case of intes- tacy, is a competent witness to prove declarations made to her by hei husband in his life time, as to the fart inn ot a paper of- fered as his will, on an issue ol devisavit vel non, to which she is no party. Hester v. Hester. 4 Dev., 228. ltj. On the trial of an issue of devisavit vel non. where the will is propounded by two legatees, one of whom is a colored woman. and the other a white woman, and the caveators are colored per- sons, the caveators may prove, by other colored persons, the de- clarations of the colored propounding legatee, in relation to the subject matter of the issue. Hagland v. Huntingdon, 1 Ired.-, 561. 17. A petition was filed for the reprobate of a will on the ground that the supposed tettator was mm compos mentis. A ami B, his wile, joined in the petition, she being one of the next of kin; but afterwards A. the husband, caused himself to be joined with the ex< cutors in propounding the will, leaving his wife still one of the caveators; it was //(/'/that, on the trial of the issue of devisavit vel mm. the declarations ot' A were not ad- missible in evidence to prove the incapacity of the supposed tes- tator. Enloe v. SlterriU, i> Ired.. 212. 18. When the declarations of any party to an issue of devisa- vit vel mm are admitted in evidence, it is because of the rule, that the declarations of any person, against his interest, are legal testimony as against him. Ibid. 19. On the trial of an issue of dwisavit vel mm. tin- court may instruct the jury to find as to the validity or invalidity of the whole, ^x any part of the will, and the declarations of a I at© against his interest will be v,-ood evidence on such trial, so far as Ins interest is concerned. Gash v. Johnson, 6 ired.. 289. 20. If the declarations of a devisee of land, who is not a party to the suit, be received, that is no cause for a new trial, as the interest of such devisee, in the land devised, will not be affected ly the finding in that issue. Ibid. (See, whether this is not al- tered by the Rev. (ode. ch. 11!). sec. 20.) 21. In an issue of devisavit vd mm. where the subscribing wit- nesses to the supposed will disagree as to the capacity of the supposed testatoi - , other proof may be given as to that fact, and the jury must decide upon the -whole evidence. Bill v. Clark, 9 Ired., '239. 22. Unpublished wills of the supposed testator are admissible in evidence, as to questions of capacity and undue influence, as they tend to show intelligence and a settled purpose to make 502 EVIDENCE— XXIII.-XXIV. dispositions, like those contained in the script in contest. Love v. Johnston, 12 Ired., 355. 23. Where, on the trial of an issue of devisavii ' vel non, the dec- larations of a party arc given in evidence, and it appears after- wards that those declarations were in fact in favor of his own interest, though apparently against it, the court may, at any stage of the trial, direct the jury to disregard them. Hid. 24 Where the propounders of a script, as the last will and testament of the deceased, lived in the same house with him, it ivas held not to be competent for the caveators to give in evi- dence declarations of the propounders, calculated to influence the supposed testator in the disposition of his property, without, at the same time, showing that suGh declarations were made in the p.iexenee of-the alleged testator, or wen/ communicated to him. Jenkinsv. Hall, 7 Jones, 295. 25. It is not error for a judge to charge the .jury, that the law gives peculiar importance to the testimony of the physician at. tending on a testator, and, also, to that of the subscribing wit- nesses, as to the capacity of the supposed testator. Gorneliiis v. Qbrnelivs, 7 Jones, 593. 2ii. Under the Rev. Code, ch. 119, sec. 7, a person named as executor in a script, made since the code went into operation, and propounded as a will, may be examined as a witness for the caveator, as well as for the propounder, though he be named as a party plaintiff to the issue of devisavit vel non. Pannell v Scoggirt, 8 Jones, 408. See (Evideneg — Laws and legal proceedings of other states and countries, 17-lfc-19-20-24.) XXIV. IX CASES OF MALICIOUS PROSECUTION AND SLANDER. 1. In an action for malicious prosecution, what the defendant swore on the trial of the indictment may be given in evidence for him. Moody v. Render, 2 Hay.. 29, (185.) ' 2. When, upon the trial of a State's wari'ant for larceny, the justice records the testimony of the prosecutor, the person prose* cuted may, in an action for malicious prosecution, give such parol evidence of this testimony, as is consistent with the writ- ten statement, and tends to a more exact specification of tho thing alleged to have been stolen. Watt v. Greenlee, 3 Murph., 246. 3. In an action by A against B, for a malicious prosecution for larceny, in which B defended by showing probable cause on tho information of another, A may be permitted to prove that B was present when two witnesses swore, before a magistrate, to facts proving the information which B had received to be untrue, and he need not produce the record of the proceedings, or warrant EVIDENCE.— XXIV. 503' before the magistrate, to lay a foundation for the introduction of this testimony. Watt v. Greenlee, 2 Hawks, I86i 4. In order to show malice in 1!, evidence is also admissible. that A was the only witness bound by recognizance to appear in support, of a prosecution for felony, against a brother of B. Ibid. 5. In an action of slahder, for having charged the plaintiff with swearing falsely, as to the residence of a certain person, made by that person^ not in the presence of the plaintiff, as to his residence, are inadmi I -i the plain- 1 •. on a mere abstraci question, as to the residence of an individual; the fact depends so much on intent, that declarations y him. accompanying, and explanatory of his bodily presence, ireadmi Ch rry v. Slade, 2 Hawls . 6. In an action for slander, charging th * plaintiff with perjury, in a particular suit, he is not bound to produce the record of that suit. McDonald v. 3furchison, 1 Dev., 7. 7. Other words, besides I >■■•■■': landerous, may be proved on the trial, in an ai tiori of the i intent of the del :nd nt, and fehi . as well where they are acl where they aremot. Brittain v. Allen, 2Dev. r 120. •S. In an action for a i aition, when the defen- dant v. ; i d to give in evidence part of what he swore to en the trial of the indictment, without objection from the olaintiff, and anotherpart of the defendant's oath, on tike toiled information given by a. negro, -'■' wash Id that, the I t' having permitted a part to be given in evidence, the lit had a right to have the whole stated. JJ'lii'c v. 0' \ al, 2 Dev., 166. \). In an action for a malicious prosecution, on a question whether there was a proba li a a an arrest, evidence of a. suspicioui ihav'ior iu a plaintiff, the day befori i was made, -is a. hm---" le, although there was no proof that the defendant knew of thai '-eni'ii"! al h I ime of the arrest. Ibid. 10. In an action of slander, transactions between the defend- ant and others, with which the plaintiff had nothing to do, are net aainissible in evidence against the plaintiff. Hamilton v. Smith, 'I Dev. and Bat,, '274. 11. In an action of slander, the defendant cannot, in support of his plea of justification, give evidence el' transactions or con- versations between himself and others, to which the plaintiff was not privy. Jenkins v. Co ' a n, 1 [red., .'>0!>. 12. In an action on the case fur shmder.it is competent for the defendant to show that the words were uttered before a tri- bunal of a religious society, of which the plaintiff and defendant were both members, for the purpose of disproving malice; but 504 EVIDENCE.— XXIV. the decision of such tribunal is incompetent. Whitaker v. Car- ter, 4 I red., 461. 13. On the trial of an action for slander, in charging the plaintiff with perjury, it is not competent for the defendant to give evidence of any other perjury, than that laid in the decla- ration, and affirmed to be true by a plea of justification. Ibid. 14. In an action for a malicious prosecution, the defendant may, for the purpose of rebutting the imputed malice, show that he had consulted counsel learned in the law, upon a full and fair statement of all the facts of the case, and acted according to his advice; but it is incompetent tor him to prove that he consulted with an unprofessional person, and followed Ins advice, in order to show that he acted bona fide and without malice. Beal v. Robeson, 8 Ired., 276. 15. In an action of slander or malicious prosecution, where the plaintiff is entitled to recover vindictive damages, lie may .give in evidence the pecuniary circumstances of the defendant. Adcockv. Marsh, 8 Ire ., 360. 16. In an action of slander for charging the plaintiff with perjury, in swearingon a certain trial that "he knew the character of B, and would from his general character, believe him on oath," it is competent for the plaintiff, in answer to a plea of jus- tification, to prove by witnesses that they also would believe B on oath, from his general character. Howell v. Howell 10 Ired., 82. 17. In an action for a malicious prosecution, the oath of the prosecutor in the original complaint, or before a magistrate, is ■evidence for him. Johnson v. Chambers, 10 Ired., 287. 18. The verdict of a petit jury, acquitting a. man indicted for a conspiracy, does not, in an action tor malicious prosecution, support the averment that the indictment was without probable cause. Heal v. Pearcy, 11 lied.. I'M;!. lit. Where a man has charged a woman with incontinence with a particular individual, he cannot, on the trial of an action for this, go into evidence to show that she was guilty with other persons. Waters v. Smoot, 11 Ired.. 315. 20. The declarations of the husband, who is necessarily a party to the suit for the slander of his wife, are admissible in evidence to show her guilt. Ibid. 21. In an action of slander, the plaintiff has no right to ask a witness what he considered to be the meaning of the words spoken, except in these cases. First, Where the words in their ordinary meaning do not import a slanderous charge, yet if they be susceptible of such a meaning, and the plaintiff avers a fact, from which it may be inferred that tkey were used lor the pur- pose of making the charge, he may prove such averment, and then the jury must decide whether the defendant used the words in the sense imputed or not. Secondly, Where a charge is made EVIDENCE— XXIV.-XXV.-XXYL 505 by using a cant phrase, or words having a local meaning, or a nickname, when advantage is taken of a fact known to the per- sons spoken to, to convey a meaning, which they understood by connecting the words (ot themselves unmeaning) with such facts, then the plaintiff must make an averment to that effect, and may prove, not only the truth of the averment, but also that the words were so understood by the persons to whomtheywere addn seed; for, otherwise, they are without point and harmless. Sasser v. Bouse, IS Ired., \Xi. i'i. A plaintiff in an action of slander may give in evidence in chief his general character. Sample v. Wynn, Busb., 319. 23. It is competent in an action fur slander, for the plaintiff to prove that, after the theft with which he was charged was al- leged to have been committed, the defendant continued on friendly terms with him. Burton v. March, 6 Jones 409. 24. Good character can be given in evidence by the plaintiff. in an action of slander, as well to repel the evidence given to sustain the plea of justification, as to enhance the amount of damages. Ibid. XXV. AS TO THE IDENTITY OF NAMES 1. The question of identity, where different names are alleged l - to the same person, is one exclusively for the jury upon the evidence given. Toole v. Peterson, 9 Ired., 180. 2. In all eases where there are two persons having the same name, the elder is presumed to be meant when there is no addi- tion to the name, but evidence is admissible to show that the younger was the person intended. Stevens v. West, 6 Jorn s, 49. XXVI. IX CRIMINAL PROCEEDINGS AND INDICTMENTS. 1. An examination of a prisoner made before a magistrate must be recorded, and parol evidence of it cannot be received. State v. Grove, .Mai-., 43, (36. ) 'I. Confessions of a prisoner before a justice, when not reduced to writing, may be proved by parol. State v. Irwin, 1 Hay., 112, 3. Depositions taken in the absence of a criminal shall not be read in evidence against him. State v. Webb, 1 Hay.. 103, (120.) 4. Naked confessions, unattended with circumstances, are not sufficient to justify a conviction for a capital offence. State v. Long, 1 Hay.. 455, (524.) 4. In an indictment for horse stealing, the jury may infer from circumstances, that the horse was taken by the prisoner in the district in which he is tried, although he was never seen with the horse in that district. State v. Adams, 1 Hay., 4(i3, (534.) 506 EVIDENCE— XXVI. 5. A confession, extorted and Uncorroborated by circumstan- ces, weighs nothing; but a confession, whether extorted or not, that relates circumstances with which the prisoner could not well be acquainted, but as the perpetrator of the crime, and which cir- cumstances are proved by other witnesses to have actually ex- isted, is testimonj 7 proper to be left to the jury. State v. Moore, 1 Hay., 582, (55rf.-) 6. Dying declarations are, in certain cases, admissible when the party believes that he is in a dying condition, but not when lie entert tins hopes ot a recovery. State v. Bloody, 2 Hay., 31,, (189.) 7. On >\ an indictment for perjury, cha -d to- have been commifcte 1 before a company court martial, it is not nece sary to produce the commission of the captain, parol proof, of his acting as such being sufficient. State v. Gregory, 2 Murph., (ill. 8. The declarations of a party cannol be offered in evidence mi his beh If in any case, unless they accompany ai and be pars rei g ice, and are offered as such; and they are not admis- sible even to bow the insanity of the pri on r; ' 'd therefore, that where a prisoner had committed homicide at 10 o'clock of the night of one day, evidence of what he said next morning could not be received to prove his derangement. Slate. v. Scott, 1 Haw] 9. It is competent for one charged with flic murder of a slave, to give in evidence thai the decea I i turbulent, and was insolent and impudent to white pi v. To. ket, 1 Hawk 10. The examination of a witness in a Stat . en be- fore a magistrate in» writing, cannot, on the trial of the same matter in court, be used as evidence in chief, particularly when the wit i c ■■■ is present; but it may be used to show contradictory statements by him. State v. McLeod, 1 Hawks, 344. 1 1. The declarations of a deceasi d person that he w i i poisoned by certain individuals, not made immediately to his death, but at a time when he despaired of his recovery, and felt assured that his disease would prove fatal, are admissible as dying declarations. State v. Poll, 1 Hawks. 442. 12. When a common design is proved, the act of one, in fur- therance of that, design, is evidence against his associates; but the declarations of one of the parties can be received as evidence only against himself. Ibid. 13. Upon an indictment for uttering forged money, knowing it to be forged, evidence may be received of former acts and transactions, which tend to bring home the scienter to the de- fendant, notwithstanding that such evidence may fix upon him other charges, besides that upon which he is tried. Slate v. Twitty, 2 Hawks, 248. 14. When a witness is called, who, in the commencement of EVIDENCE.— XXV I. 507 his testimony, states himself to be an accomplice of the accused, it is regular, before the- witness is attacked, to call on another Witness, to prove that the first had related the facts disclosed in his evidence, immediately after they had happened, and to slate other confirmatory facts; and such evidence is to be considered as substantially given in reply. State v. Tivitty, 2 Hawks, 449. 15. W here declarations were offered as evidence, upon the ground of having been mad" in th'e presence of the defendant, and not . mtradicted by him, and it was proved that he was partial 1 ' ited at the time, it was held to be properly left to the jury 1 > ascertain whether or not he was too much intoxi- - and understand the statement, when m v. Per i -. 3 Hawk . 377. Id. In a criminal prosecution, where there is no disput I own ;rship, title pa] violence to explain the m ives of a party's conduct. Hence, where land was sold. an. 1 : vendee got into actual possession, and put out a tenant at suff ranc ■. in an indictment for an assault in thus putting nut such tenant, the deed, under which the vendee claiu d, wa held : • be evi- dence P r him. Stati v. Weeks, 1 Dev., 135. 17. When a prison* r has once been induced to confess, by the influenc r, i onfessions subsequently • be presui I to pro ;ee 1 from th&same influenc ;, until the contra- ry"be clearly shown; and while this presumption remains unan- swered sions are inadmissible as evidence. State v. Roberts, 1 Dev.. 259. 18. Although the testimony of two witn i said to be ne- invicl one of perjury, yet the direcl oath oi one wit- ness, a id] fo declarations of the'defendant, inconsistent witn the oath in which perjury is assigned, are sufficient State v. Molier, 1 Dev., 263. lit. An accomplice is a competent witness for the prosecution, on the trial of his associate. Statev. Weir, 1 Dev., 3G3. 20. 1 he . '.stimony of a witness, in a criminal prosecution, who is corruptly false in any particular, should be entirely disregard- ed by tii sjury; and where they were instructed that they might, in the ex ;ri i ■ of a sound discretion, reject part of the testimo- ny which they did not believe, and act on part which they did believe, Id to 1 rroneous. State v. Jim, 1 Dev., 508. (Overruled, see State v. Williams, 2. Tunes. 2">7.) 2.1. In an indictment, under the act of 1791, for neglecting to keep up a sufficient fence, it was held that the act introduced no new rule of evidence as to the kind of witnesses, but that "in- different witnesses" meant "competent witnesses." State v. Sawyer, 2 Dev., 213; (See Rev. Code, ch. 34, sec. 41.) ■22. On a trial for murder, proof that a written paper, found near the body of the deceased, was given to the prisoner's son, a little boy, for the use of his father, is sufficient for the paper 508 EVIDENCE.— XXVI. to go to the jury, with instructions to disregard it, unless satis- fied that it actually carne to the prisoner's hands. State v. Ar- thur, 2 Dev., 217. 23. Co-defendants, in an indictment., cannot be witnesses for each other, unless the one offered has been acquitted or convic- ted, and this, although their trials are to be had in different counties. State v. Mills, 2 Dev., 420. 24. Whether or not persons, who have an interest in property expectant upon the life estate of another, are competent witness- es for the State, in a capital charge against the tenant for life, they are certainly competent when they have released or as- signed all their interest, remote or contingent, legal or equita- ble. State v. Kimbrough, 2 Dev., 431. 25. On an indictment against a slave for a capital offence, the master cannot be compelled to testify; and it is doubtful wheth- er, if he waived his privilege, the' slave might not object to hav- ing his confessions to his master testified against him by the latter. State v. Charity, 2 Dev., 543. 2(i. Evidence that the prosecutor was actuated by malicious motives, in preferring the indictment, is not admissible on the trial of the indictment, unless he be examined for the State. State v. Collins, 3 Dev., 117. 27. Where the defendant, in an indictment for petit larceny, oilers no evidence of character, the jury are to weigh the testi- mony, as if they knew nothing against, him, except what was disclosed on the trial. Ibid,. 28. One found in possession of a forged order, in his own favoi , is presumed either to have forged it, or procured it to be forged, until the contrary is shown. State v. Britt, 3 Dev., 122, S. 1'. State v. Morgan, 2 Dev. and Bat, 348. 2i). Under the act to prohibit the retailing of spirituous liquors by the small measure, it is incumbent on the defendant on the trial of an indictment, to show the existence of the license in his defence. State v. Morrison, '■> Dev.. 299. 30. Where A was indicted for an offence, it was held not to be competent lor him to prove the declarations of B, or his conduct, after the time when the offence was committed, to prove that B, and not A, was guilty of the offence. State v. May, 4 Dev., 328. 31. On an indictment for perjury, it is not necessary for the prosecution to prove all the evidence given by the defendant on the trial, wherein he testified. It is sufficient to prove all the evidence given by the defendant in relation to the fact, on which the perjury is assigned. Ingram v. Watkins, 1 Dev. and Bat., 442. 32. When it appeared upon a trial for murder, that the de- ceased came to her death in part by strangulation with a rope, and the prisoner, while before the examining magistrate, but before the examination had begun, said, in reply to a bystander EVIDENCE.— XXVI. 509 who had a rope in his hand, "that is not the rope," upon which the magistrate observed to the prisoner, "keep that to yourself," it wax held that the prisoner's declaration was admissible in evi- dence against him. whether he desisted from speaking further of his own accord, or at the suggestion of the magistrate. State v. Su-inl: 2 Dev. and Bat., 9. 33. When a man, who is at full liberty to speak, and not in the course of a judicial enquiry, is charged with a crime, and remains silent, that is, makes no denial of the accusation, either by word or gesture. Jus silence is ;<. circumstance; which may be left to the jury, to be considered together with other circum- stances, in deciding npen his guilt. Ibid. 34. In criminal, as well as in civil eases, the whole of the ad- mission or declaration made by a party is in be taken together. But his acts or declarations" are not to be excluded, because not as complete as lie intended they should be. Ibid. 35. Every circumstance, however slight, that is calculated to throw light upon the supposed crime, is to lie considered, al- though a verdict against the prisoner cannot lie warranted by any combination of circumstances, producing less than full as- surance el' his guilt. Ibid. 36. In a capital case, presumptive evidence, which will satisfy a jury beyond a reasonable doubt of the prisoner's guilt, which is us .In- and as strong as the testimony of one credible and re- ible witness, is sufficient to sustain a verdjet of guilty. Ibid. ."i7. To repel tin' allegation of an alibi, it is relevant to prove that, on the morning after the offence was committed, a servant of the defendant went to a neighbor's house to borrow a pair of saddlebags, and returned with them towards home, if it be fur- ther proved that tic defendant was seen soon afterwards with a pair of saddlebags, going in a direction from home. States. Scott, 2 Dev. and Bat, 35: 38. Marriage bet \\ een slaves consisting of cohabitation merely, by permission of their owners, a slave, the wife of another slave, may give evidence against him, even in a capital case. Still more will she be a competent witness, after they have sep- arated, and she has become the wife of another slave. Statu v. Samuel, 2 Dev. and Bat, 177. 39. In every case arising upon the question of the admissibil- ity of husband andwife, as witnessesdbr or against each, whether the witnesses be called by the one side or the other,- the test, and only test, of competency, is this: are they in fact and in law. husband and wife? Ibid. 40. A defendant, in attempting to prove an alibi, cannot give in evidence what he stated to a witness, who saw him at a dis- tant place at a particular time. State v. Morgan, 2 Dev. and Bat., 348. 510 EVIDENCE.— XXVI. 41. In a prosecution for forgery; the forged note being seen in the hands of the defendant, in the county in which the for- gery is charged to have been committed, is, in the absence of all proof where and by whom the note was actually forged, suf- ficient to justify a conviction. Ibid. 42. Where an association for a criminal purpose is proved to exist, the arts of one of the associates in furtherance of that Eurpose, as well as his declarations in respect to it, are admissi- le against 1 he others; and this, where the aci or declaration is subsequent to the actual perpetration of the crime. Stah v. Haney, 2 Dev. and Bat, 390. 43. The unsupported testimony of an accompltce, if it pro- duce entire belief of the prisoner's guilt, is sufficient to warrant a conviction; and the usual direction to the jury not to convict upon it, unless supported by other (testimony, is only a precau- tionary measure to prevent improper confidence being reposed in it: and the propriety of giving this caution must be left to the discretion of the judge who 'tries the cause. Ibid., S. P. Statev. Hardin, 2 Dev. and P..- it., 407. -! I. In burglary, the intent to steal is most satisfactorily proved by an actual stealing. State v. Jesse, 3 Dev. and Bat.. 98. 4">. In an indictment for fornification and adultery, one who had been the husband of the A ne defendant, but ha i been di- vorced from her cm account of her adultery, is incompe- tent to testiftr against the defendants, as to the adulterous in- tercourse, or any fact which occurred while the marriage sub- sisted. And if the testimony were received at the trial alter ob- jection made to it, and the defendants were found guilty, and the man alone appealed, it is not thereby made compi 1 ml against him. Statt v. Jolly, 3 Dev.. and Bat. 110. 4(i. The possession of stolen property affords presumptive evi- dence that the risthethiei and the evidence is stronger or weaker as the possession is more or less recent, A recent i ; ., reasonable presumption of guilt. State v. Join •■■ 3 Dev. and Bat., 12-2. 47. If, in attempt ing to rebut the presumption of larceny ari- sing from the recent possession of stol m pn perty, it be proved that the defendant, after the larceny, found thepropei tyintl session of another person, from whom he received it. claiming it as his own, hut that before such finding he gave an exact de- scription of the stoteh articles, which he alleged he had lost; that he made diiferent statements to different persons as to the time he had lost his property; that, finding the property, he put false marks upon it; and that, afterwards, he left the State in consequence of the indictment; all these circumstances furnish evidence tending to connect the defendant with the felonious possession of the property, anterior to the time when he found it .in possession of the other person. Ibid. EVIDENCE.— XXVI. 511 48. On the trial of an indictment for forgery, the person, whose name is charged to have been forged, and whose interest, sup- posing the instrument to be genuine, is affected by it, eitheras an on or acquittance, is not, while the instrument remains in forci a competent witness to prove the forgery State v. Hlmt- tan,l Ired.. 424. (Such person is now made, a competent witness to prove the forgery. See Rev. Code, ch. 35, sec. 22.) 49. On an indictment for bigamy, the second wife is admissi- ble as a witn • -. eithi r For or againsl the prisoner. State v. Pat- terson, 2 Ired., 34(1. 50. Whether the trial of two or more defendants in an indict- ment be joint or separate, one of the defendants cannot, until finally discb d, 1 witness for another, and wh rer the wife of one o ted to t< tify for the ot hen on a joint trial, she will no1 be re< ivad for them, although hei husband be not then on trial. States. Smith, 2 Ired., 402. 5L The declarations of the d in an indictment, are ad 7 missible in evidence on the part of the prosecuti :ompa? aying, explaining and characterizing the acts charged. Slate v. Huntly, 3 In d., 418. 52. In an indictment againsl an overseeV for the murder of his employer, itis not competent for the prisoner to give i vidence of the general temper and deportment, of the decea ed 'towards his overseers and tenants. State v. Tilly, 3 Ired., 424. 53. Itis not competent for a prisoner, indicted for murder, to give in evidence his own account of the transaction, related immediately after it occurred. Ibid. 54. A judgment having been obtained before a justice against A and his surety B, of which B paid a part and took the con- stable's receipt, which he fraudulently altered so as to make the sum larger, and A having afterwards settled with B, arid paid him the larger amount appearing on the recei] held, in an in- a osl !'• for the forgery, thai ipetenl witnes i for tfo . v. iteman, 3 Ired., 474. .">.">. On the trial of an indictment for a ttery, in order to show some motive of resentment on th part of the de- fendant, it was competent for the State to pro . th e prose- cutor had said in the defendant's bearing, a hori time before, "that no honest man would avail himself of the bankrupt law," and then to prove further that the di fondant's lather had been talking al i1 i. I in ; he I m £il of th ; law. State v. Griffis, 'A Lred., 504. 56. Although the po ■ sion of a stolen article may not be so after a theft, as of itself to raise a legal pri sumption that the p is ■■ ssor stole them, yet it may be considered by a jury as a circumstance, to be weighed toe-ether with other circumsl riceB, in deciding upon the question of the possessor's guilt. Slate v. Lt/fle, 5 Ired., 58. 512 EVH)ENCE.^-XXVI. 57. On an indictment for passing a forged bank note, a witness is competent to prove that the note was counterfeit, who had for ten years been employed as cashier of a bank, who had, in that capacity, received and passed away a great number of the notes of this bank, without ever having had one returned as a coun- terfeit, and who swore that he believed he could readily distin- guish between a genuine and a counterfeit note, not only from the handwriting of the signatures-, but also from the paper, en- gravir.e- and general appearance of the note. State v. Harris. ."> Ired., 287. 58. A witness for the State, on the trial of an accessory before the fact, in a capital case, being asked by the defendant whether he I',;. I, before the examining magistrate, staled certain facts he was then narrating, replied that he had not, having been terred by the threat of theprincipalvand was;proceeding testate the conversation between himself and the principal, when the defendant objected to the evidence, but it toas held admissible. State v. Duncan, (i Ired., 98. .V.i. Where a principal and an accessory are tried separately, though on the same indictment, evidence of the conviction of the principal is not admissible on the trial of the accessory, unless judgment has heen first pronounced against the principal, and exists at tin.' time, not having been vacated by appeal. Ibid. (The law on this subject has been altered and amended. Sec Revised < 'ode, eh. .",!-. see. 53.) 60. Evidence on the part of a prisoner, indicted as an acces- sory in murder. 1 li.it he was a man of violent passions, and often iii the habit of using threatening language, intended to rebut the presumption arising from his threats against the deceased, is irrelevant and inadmissible. State v Duncan, 6 Ired., 236. (il. Threats of other persons against the deceased, or admis- sions by them that they had killed him. are (inly hearsay and cannot be received in evidence. Ibid. On a. trial for rape, (he prisoner may give in evidence that the woman had been his concubine, or that he had been suffered to take indecent liberties with her. But he cannot give in evi- den e, in order to prove her a strumpet, that she had had crimi- nal connection with one or more particular individuals. It is a euiestion of character, and the evidence, as in other questions of character, must be of a general nature. State v. Jefferson, 6 Ired;, 305; (>.">. On a trial for rape, the acts and declarations of the hus- band of the won. an. on whom the offence is alleged to have heen committed, are not admissible to discredit the wife, who had been examined as a witness. Ibid. 64. A confession made by a prisoner, while in prison, is evi- dence against him, provided it be the prisoner's own act, not unduly obtained by promises or threats. Ibid. EVIDENCE.— XXVI. 513 65. A grand pirormay, on the trial of an indictment, lie com- pelled ti> disclose what was uiv.-n in evidence by a witness be- fore the grand jury. State v. Broughton, 7 [red., 86. (iii. Although a prisoner, who lias been examined on oath be- fore a justice, shall not be subjecl to have his examination usi d hi evidence againsl him on his trial, yet whi rea grand jury are in- iting an offence with a view to discover the perpetrator, an 1 the person, who was subsequently indicted, was examined them on oath, aud charged a on wil li the com- imination ma ; be given in evidence :r on the trial of his indictment. Ibid. 67. In an indictment for a libel, charging that the ^prosecutor "was called a murderer and forsworn," it is not competent for the defendant to justify by proving that there was and long had i general report i > the neighborhood thai the prog was a "i ird reran I I ' >rn Stati v. White,! [red., 180. (Sec Ltev. i 26.) 68. ' uninal ion of a prison i- ac- ius night, told him "that unl r in which he hi< h was found on him, he • him to li ■ i fcealing it." it i iiini to sn ih a thn ut or inn the m of the subsequent confession ■ !. especially, as the magi trate repeatedly warned him not to c tnmil i : any confession. Slate v. Cowan,! [red., i 69. \ rial of an ind foi murder, the pris- i at the time to extenu- i prove, in order to show thai ii' li "i the i am i Liate provocation, but from previou mer, a year or a month previously, had d sclare I Iris in( mtion to kill two or three men, it being ad- mitted that the pri n rence in such threats to the ■ - Id, 7 [red., 299. 70. Th lc :omplice are evidence i ii of the res gestae, and done in furtherance of m i Bui to in ke the acts or declarations of ! i prisoner, a conspiracy or com- mon design ; i tablished. State v. . 7 [re 1., 321. 71. A deed for land, duly proved and r ii b t i. is evidence, under the statute, of th upon every occa- sion on which ii may 1 ffered; as. for instance, upon the trial of an indictmem for murder. Statt v. Sk oherd, 8 [red:, l'.t. r >. 72. On a trial for murder, evidence of the general character and habits of the deceased, as to temper and violence, cannot be received; and the only exception to the rule, it' there be one y 33 514 EVIDENCE.— XXVI. is where the whole evidence as to the homicide is circumstan tial. State v. Barfidd, 8 [red, 344. 73. Where the State, in a prosecution for homicide, relies upon the ground of express malice, the witness can only prove the existerxa of previous mali e or threats, but lie cannot prove the existence of the malice up to the time of the homi- cide, and that the prisoner acted on it in slaving-. It is the pro- vince of the jury to make Mies- inferences or not, from the facts proved Statev. Hildreth, 9 [red., 429. 74. It is a general ride that the declarations of a party ac- cused of a crime, made in his own favor, after the time oi thi alleged commission of the crime, are not evidence for him. I hid. 75. Where, on an indictment, the defendant pleads a former conviction, it is competent for him to prove by one who was not ■a witness on the former trial, what a witness, who was exam- ined on behalf of the State on that trial, di posed to, though that witness be still alive, and within the jm [, diction oi' I !>.<■ court, in order to show the identity of the cases. State v. Smith, 11 Ired, 33. 76. In order to make the declarations of a deceased person evidence, as dying declarations, it is not necessary that the per- son should be in the! very act of dying; it is sufficient if he he under the apprehension of impend ug di :olution. Stat v. Tilghman, 11 ired, 513. 77. A witness cannot be admitted to state that " he thought that the deceased thought he would not die from his wounds." He cannot give his own opinion, but only d >pose to the state of the wounds of the deceased, and wh it he then and then said and did, from which the court may decide what he thought of his condition. Ibid. 78. It" the deceased, at the time he made- the declarations, was, in fact, in a condition to make them ci mpetent evidence, a hopi of recovery at a subsequent time would not make them incom- petent. Ibid. 79. On an indictment for perjury in swearing that A, one of several assailants in an affray, struck the defendant, when it ap- peared that A did not, but another assailant did strike tin; blow. it was competent for the defendant, in order to disprove a cor- rupt motive, to show that, immediately on his recovery from the unconsciousness caused by the blow, lie had given the same ac- count of the transaction which he did in his testimony before the court, on the trial of the case in which the perjury was as- signed. Statev. Curtis, 1~2 Ired., 270. 80. On a trial for murder, charged to have been committed by a husband on his wife, the State, for the purpose of showing malice, has a right to prove a long course of ill treatment by the husband towards his wife. And whether an alleged subsequent EVIDENCE.— XXVI. 515 econciliation between the parties was real or pretended, so as to affect the question of malice, is a matter for the decision of the jury. State v. Rash, 12 Ired., 382. 81. Proof of the declarations of the deceased wife, offered by the husband, that she had been guilty of adultery, was properly re- by the court, because it was irrelevant to the issue, and ■ i; would have gone strongly to prove the malice charged on the husband, ibid. 82. Where there was a conspiracy to commit an offence, it is not competent, on the trial of one of the conspirators, to give in evidence the declarations of another conspirator, made after the offence had been committed; because they were not made in furtherance of the common design. State v. Dean, 13 Ired. 63. 83. On the trial of an indictment for murder, when the dy- ing declaration of the deceased was, that "A B has shot me, or has killed me," the courl must presume prima facie, that thede- : intended to state a tact, of which he had knowledge, and not merely to express an opinion; and the jury must jud i of thi' weight of this, as of other evidence, by the a icompanying circumstances. If he merely meant to express his opinion or suspicion, the jury should disregard it as evidence in itself State v. Arnold, 13 Ired.. 184 84. When the defence on indictment for murder is. that the prisoner was under the age of presumed capacity, the ontis of proof lies upon the prisoner; and if the age can be ascertained by inspection, the court and jury must decide. Ibid. 85. On the trial of an indictment for murder, the affidavit of the deceased, though not taken according to the acl of 1715, is competent and proper evidence as a dying declaration. Ibid. (See Rev. Code, ch. 35, sec. 1.) 86. Though the examining magistrate, before whom a pris- oner charged with !' lony i ■ brought, does nol rednce the exami- nation tii writing, as it is his duty to do, yet evidence may be given of such prisoner's confessions at the time. But to render such evidence admissible, it must appear that the committing magistrate did not take down the examination in writing-, or that the same is lost. State v. Parish, Bush, 239. 87. Where a ma i rate was called to testify to confessions of t on a cha side, and star- ted that he enquired of the pri mer hovi arere, andthe evidence being objected to by ■ ■' ounsel, the witness stated that the ■ were voluntarily made, whereupon the judge allowed the a I i be given.in evidence " wo i /'''/that i loner's counsel was not bound to apprise the solicitor for the Stat", nor the court, of the grounds of his objection, and was not, therefore, precluded from insisting in the supreme court on the objection, tnal there was no proof that the prisoner's exami- nation was not reduced tu writing:. Ibid. 51(5 EVIDENCE.— XXVI. 88. On an indictment against a husband for the murder of his wife, it is proper for the Slate to ask their daughter, whether her father and mother did not "quarrel," without asking her what they said. Statev. Langford, Busb., 436. 89. Whether the inference against (In- credit of a female wit- ness, called to prove a rape, arising from her failure to make an outcry, is repelled by the other concurring facts, is not a conclu- sion of law to be decided by the judge, but is a question el' Fact to be submitted, with proper instructions, to the jury. Stati v. < 'one, 1 Jones, 18. '.hi. Where the deceased, who was very badly wounded and very weak from the less of blood, said that he must die, and did die two days afterwards, of the wounds which he had receive. I, it was hih] that his account, in a short conversation, as to the manner in which the conflict began and was continued between him and the prisoner, was admissible as dymg declarations, al- though the witness could not say whether the opinion exprei sed by the deceased, "that he must die," was before or after the narration of the facts; there being no evidence that, during the time of this conversation, the condition of the dec< ased was ma- terially changed. Statev. Pratt, 1 Jones, 251. 91. To bring a ease within the operation of the rule in crimi- nal trials of no, fdlsurn in omnibus, the oath must be corruptly false in regai'd to a matter material to the issue. Ibid. \^2. The possession 'if stolen goods, shortly after the theft, is a circumstance to be left to the jury in passing upon the guilt of the accused, and, however slight it may have become by length of time, the court cannot disregard it. State v. Williams, 2 .'ones. 194. 93. The maxim u falsum h in on &««," is in a common law trial, anil, even in a capital ease, to be applied by the jury, according to their own judgment, for the ascertainment of truth, and is not a ride of law, by virtue of which the court may withdraw the evidence from the jury, or direct them to disregard it altogether. State v. WiUiams, 2 denes, 257, (Battle J., dissenting in part.) 94. Every material averment, whether affirmative or negative, necessary to constitute a substantive offence, must be charged in the indictment, and proved on the trial bythe Stale. There- fore, where it was alleged in an indictment, that the prisoner did carry, convey and conceal a. slave, with nii tlve consent in writing of f lie owner of such slave, with the intent that he should escape beyond the limits of the State, it was held to be incumbent on the State, to prove that such notice in writing was not given. State v. Woodly, '1 Jones, 27<>. 95. Dying declarations, on a trial for homicide, must be re- stricted to the act of killing, and the circumstances immediately EVIDENCE— XXVI. M7 attending the net and forming a part of the res gestce. State v. Shelton, - Jones, 360. 96. It is not a rule of law that the evidence of a witness, who has made an intentional mis-statement, must be rejected alto- gether. State v. NMett, "-' Jones, 418. 'J7. On the trial of an indictment for murder, if it he shown by tin' prisoner that, about a fortnighl before the homicide, he was laboring under deli lens, from which he partially recov< the burden is still upon him to prove that he was insane at tie time the fatal act was committed; fur the disease of irally but a temporary insanity, tin- law will not presume that ir continued up to the time of the homicide. State v. S well, '■'< Jones, 245. 98. Where the person, who had formerly hired the prisoner, who was a slave, said to him that he- might as well tell all aboul the homicide, for ho. the witness, "was satisfied about it." and repeated tin; several tinfes, and each time the prisoner denied a id the witnessalso said, while he was a littleangry, ••if yon ! to me, I would m bell," but the pris- tied the charge, hu1 afterwards, of his own accord, took tii'.- witness aside : ad i u full disclosure, it was held that the confi ion was admissible. State v. Patrick, 3 Jones; 99. Although tb on of stolon goods, after a certain ■ a presumption of the possessor's guilt, yet, it is a circumstance which may properly be consid- ered by the jury, togotlu-r with other circum red in lilt of the accused. , 'tate v. Shaw, 4 Jones, 440. 100. The defendant, in an indictment, has always a right to give- his character in evidence, ti be weighed by the jury, whether i- be called a plain or a doubtful one. Sf permit, in a bill of indict- ment for selling and delivering spirituous liquor toa slave, must Be proved on the part of the State. States. Evans, 5 Jones, 250. (The burden of proof subsequently imposed on the defendant, who had to showthat there was a written permit. Act of 1860, eh. 3. r >.) 103. A judge has no right to compel a defendant, in a crimi- 518 EVIDENCE.— XXVI. nal prosecution, to furnish evidence against himself, by exhibit- ing himself to the inspection of the jury, for the purpose of ena- bling them to determine his status as a free negro. State v. Ja- cobs, 5 Jones, 259. 104. Where confessions, which had been illegally obtained from one accused of a homicide, were stated to him, by the per- son to whom they were made, to bave been wrongfully obtained, and he was told that they could not be used against him. ami was cautioned against making any further confessions, it was lipid that voluntary confessions, subsequently made by the pris- oner, were admissible against him. States. Gregory, 5 Jones, 315. 105. Where a person, charged with a crime, has received a proper caution, by which he i ip] ri d that his confessions, fter made, may be used against him, what he afterwards bout the crime is admissible, although he may have for- merly made confessions, which had been extorted b; induced by promises. State v. Scates'b Jones, 420. 106. Where it was proved that a burglary had been committed by negroes, among whom one of the witnesses thought be saw the prisoner, who was a negro slave, it ivas held that it might be proved, on the pari of the State, that the prisoner was one of a gang of runaways, who had a camp in a swamp m ar the house where the felony was committed. State v. Bill, denes. <>.">. 108. The flight of a slave, charged with a capital offence, is evidence against him; tor it will net be presumed that his mas- ter caused him to attempt to make his escape. State v. Nat, (> Jones, 114. 109. On an indictment for murder, the prisoner is presumed to be of sound mind, until the contrary is proved; and as the proof is to come from him, the rule, as to a reasonable doubt in his favor, does not apply, lie must prove that fact, as he has to prove any other material allegation necessary to his defence. State v. Starling, [red., 12it. 3. Where the plaintiff offers to prove a contract by parol evi- dence, andit is objected that the contract was reduced to writing the witness, who is introduced to show that there was a written contract, must state the contents of the instrumi ni to the court, that the court may judge, whether it relates to the same contract offered to be proved by the plaintiff; and it is error to have this fact to be ascertained by the jury. Uatliffv.l i I I., 54■■ re\ iewed upon ap] 7. 1 itne by 1 objected to as in- inpeti u wner of tl [to, and must be decided on by, the co ; f the plai itiff witnesses to el, their testimony, and any I ere I it, must be addressed to, □ by the ji . tid not by the court. Scott v. Brown, 5 Jones, 40b". 8. The court inn on which the admissil evidence depends, and it is error to leave the decision ot it to the jury. Bu1 if the party < could not pi ; '• ' injured by it, it is not aground for a ven\ < d •• vo. 6 v. L Winsl XXIX. OF THE EFFECT TO RE GIYEX TO TESTIMONY BY A JURY. 1. Jurors are not bound to take either the whole, or any part of a witness' testimony as true, if in in their consciences they do not so believe. But where it is incumbent on a party to es- tablish a fact, and the only t istimony in relation thereto contra- dicts it, the jury cannot capriciously mangle the testimony, so as to convert it into evidence of what if does not prove, [f the witness be deserving of credit, the fact necessary to be shown is disproved — and if he be not worthy of credit, there is a defect of proof. White v. White, 4 Dev. and Bat. 401. 2. Where a jury are left in a reasonable and real doubt, as to the credibility' of a witness, they should disregard his testimony, and give such a verdict as they would have done, if he had not been a witness. Miller v. Richardson, 2 Ired., 250. EVIDENCE.— XXIX. 523 3. Where three witnesses were introduced by the plaintiff, and. i'i'um the evidence of one or two of them, it was doubtful whether the plaintiff ought to recover, it was properly left to the jury to decide the disputed question, upon a consideration of all the testimony. Homey v. Craven, 4 [red., 513. 4. The impression of a witness, who ; ,; i at all, is some evidence, the weighl of which is a matter for I all, i i ad very mu [red., 46. J. A court, when called up into party may ha i ametime; but it will si ttin statement, and if il or at variance with i I will L to sustain tier, Bus b., 113. (J. Where a defendant, on his am ch was "V i live miles The pr . t ] .. was no evi L-y, that the county. ; att v. ,,• ,■• . i us >. 7. The court lias no right u] ined in an i tinuance, which is admi theoppi le; but on ofj the jurj . i 94. 8. In a civil ruse a party, who affirms a fact, must prove it. 1 satisfied by the weight of the 1 ny that ay so find, without beiug required to be itional doubt." Need v. Fespee Jones, 9. In an action of trespass vi et armis, where the testimony 'ant is circumstantial, the jury are nol bound to be 3 eyon \ a reae ble d lubt," bhal the defendant was guilty of the trespass alleged ; for that rule is, in f< vitt . confined to capital cases. Ri '■ r, 1 Jones, 479. 10. Circumstances, that raise only a conjecture, oughl not to be left to the jury as evidence of a fact, which a party is required to prove. Suth _ ones, 320. 11. Evidenc _■■• en : " foreajuryto discredit a witness, and which is only competent forthat purpose, ought not to be left to them as substantial evidence to establish the alligations of the party who offers it. Henson v. King, - Jones, 3iS5. 12. Testimony, that raises a mere conjecture, ought not to be left to a jury as evidence of a tact, which the party, who offers it. is required to prove. Matthis v. Hatthis, 3 Jones, 132. 13. In a trial by jury, if tliere be an entire want of evidence 524 EVIDENCE— XXIX. tending to prove a matter in issue, it is the duty oi the court so to charge the jury; but if there be evidence, competent and rej- avant to establish any fact in issue, although it be very slight, it must be left to the jury, for it is their exclusive province to pass upon it. State v. AUen, 3 Jones, 251. 14. Where one witness, on a trial for murder, deposed to farts tending to prove a legal provocation, though other witnesses con- tradicted him, the prisoner had a right to the opinion of the jury, upon the question of provocation, and the judge had no right to tell them that there ^ irovocation. Ibid. k*>. Where a homicide was proved and admitted on a trial for murder, the facts, that the parties had been apparently friendly a short time before, and thai a witness, who was two or three hundred yards from thi house where the parties were, heard a like the lumbering of chairs in the house, and at the same time heard a ! >1< .v clamatiou from the dei of " Lord;" and a reply from the prisoner; "if you don't shut your month I will kill 3 held (Pearson J. dissenting,) not to afford any evidence of a legal pro\ c 1 luce the lurder to manslaughter. St it. nson-, 3 Jones, 16. Where the facts, relied on for the conviction of a prisoner of a capital offence, consi ent circumstances, held that it was proper to instruct the jury: that, though the Si;:, ' d to establish one or more of the facts relied on, yet, if enough had been shown to satisfy them, beyond a rational doubt, of the defendant's guilt, i lut; to con Vict him. State v. Frank, 5 Jones, 384. 17. Where a witness, called to testify to a conversation in re- lation to the unsoundness of an animal bought by the defendant; and afterwards sold to the plaintiff, could not say whether the conversant n oc< nrred at the time of the sale or afterwards, it ioas held that his testimony amounted to nothing. Hinsonv. King, 5 Jones. 393. 18. Where the declarationi of a defendant are, in part, a con- fession of a prima facie cause of action in the plaintiff, and the remaining part the allegation of matter in avoidance, the jury may, if they believe the latter part of the declarations to be un- true, reject them, and find a verdict for the plaintiff on the for- mer part. It would be otherwise, it' the admission were such that one part could not be separated from the other. Rankin v. Thomas, 5 Jones, 435. 19. When the declarations of a party are given in evidence against him, although the whole must go to the jury to be con- sidered by them, yet they are not bound to find the whole to be true or false, but may act upon such parts as they believe, and reject such as they disbelieve. State v. Atkinson, 6 Jones, 65. EVIDENCE.— XXIX. 525 20. Where it was not proved that any theft had been com- mitted at all. it was held that it was no evidence that the plain- tiff had stolen money from the defendant, that he was in a room alone with the defendant, who was asleep on a bed in the day time, with money loose in his vest pocket. Burton v. March, 6 Jones, 409. 21. A statemenl madi fcn a witness out of court, contradicting thai made on the trial, and brought in for the purpose of lin- ing the integrity of such witness, cannot nave the effect "1' substantive evidence of the tarts involved in the issue. tilatt v. Neville, 6 Jones, 423. 22. That a : to the plaintifl was seen working idant's saw-mill, and two othei bin half a mile ft' it. hut nut working for the defendant, nor being in his e any evidence t>> provi thai the de- nt had hired the slave tor a year. Bond v. j.' . " • I oiks. 1. 28. W'l i slave, having a jug. wa time inl ituous liquor for sale, and after i I - ten minutes, returned will, taining a quart, 1 iome evidence thai the liquor urchased from the owner oJ 24. 24. < Mi th" question of rational doubt in a capital case, it is not proper to say to the jury that, "to excln al doubt, the evidence should be such as thai men of fair, or din would act upon in matters oi liigh importanc > th elves." Slate v. 0s< ar, 7 Jones, 305. 25. It is true as a general pri : udge may eo instruct the jury, that positive testimony is entitled to more weight than negative. H ( .7 Jones, 623. i'm. A receipt signed b iff for a sum el' money ' ment of a obtaim linst a defen- dant, at a previous term ei' a court el' the c rant} in which the defendant lived, and of which th'- giver ol . ; it was sheriff at the time, is no evid' e that an in his paid to him. < 'ovm ton v. j Jones, 31 . 27. Where A swears that B, C and D had a c I i r on a matter material to tin- issue, and 1 > swears that no i . it is nut a ease for tin' application of the rule, which gives a pri affirmative over negative testimony, 'nit is a ease of direct contradiction between the wit- . in which the jury must decide upon their respective claims to credibility, liners v. Poindexter, 8 Jones, 308. 28. .Matters brought out in cross-examination, which are only admissible to weaken the force of testimony in chief, ought not 526 EVIDENCE.— XXIX.-XXX. to be allowed to go the jury for a different purpose. Luther v. Sheen, 8 .(ones, 356. See (Evidence — In criminal proceedings and indictment;-!, 129. ) XXX. PRESUMPTIONS. 1. Long acquiescence is proper evidence to be left to a jury, from which they may presume a confirmation of a sale made of the property of the person acquiescing. Holdy v. Egerton, 2 Bay., 79, (248.) 2. Long absence, and not being heard f ■ i i evidence of the party's death. Anonymous, 2 Hay.. L34, (302. 3. The absence of a party for seven or eight years, and his not having been heard from in that time, affords a snfficieni pre- sumption of his death. Bowden v. Evans, 2 Hay. 222, (396. ) 4. In questions of slavery or freedom, a presumption of slavery arises from a black complexion, but not from that of a mulatto. Gobuv. ©o5u,Tay.,164,(10O,)S.P. Scottv. Williams, 1 Dev., 376. 5. A presumption arises from the payment of the last instal- ment on a bund, that the preceding ones have been paid, pro- vided it lias been made at the time and in the manner contemplated by the parties; if otherwise, it is a presumption that the parties are acting under a new agreement. Wardv. Qreen, 2 Car. I, R. L08, (206.) i>. The lapse of fifteen years, unacccompi : yotl r weighty circumstances, is not sufficient to raise the presumption of the payment of a judgment Lenox v. Green, 2 Car. L IL 281, (261.) (Ten years now sufficient, see Revised Code, ch. 65, sec. 18.) 7. The rule that a grant cannot be presumed from one, who is forbidden by law to make it, applies only where the person is forbidden, under all circumstances, from making it; therefore, where the commissioners of a town were required to set apart a [ot for a school, and it appeared that they had done so, yet a grant of that lot to an individual might be presumed, as the grant might have been made before the selection tunic place, or the first might have been given up, and another selection after- wards mad''. Jackson v. Com Hill ' i mgh, 1 Dev. and Bat., 177. 8. To establish a presumption of 1 ion, itisnot necessary to prove that the possession was under a claim of right, as ever-, possession is, unexplained, taken to be on the possessor's own right. Ibid. !). Lapse of time is not of itself a legal oar. but only evidence of a bar properly pleaded. Therefore, where there is no plea on the record, to which lapse of time can apply as evidence, it can- hot avail as a defence. Spencer v. Weston, 1 Dev. and Bat., 213. 10. Where it appears that a note was in possession of the plaintill', and was not produced on the trial, every fair presump- EVIDENCE— XXX. 527 rion. that can arise from withholding it, is to be made against him, as t<> those parts of the contents that do not appear from the evidence given. Symington v. McLiri, 1 Dev. ami Bat., 291. 11. A party who, on a trial, insists that a particular deed vests the title in him, is not thereby d, either by way of estop- pel or of presumption, from contending that another deed is to timed in his favor. Hurley y. Morgan, 1 Dev. and Bat., 12. A deed may properly, and, in many cases, ought to be found, upon jury and the court may be satisfied, i neverwasin fact made; and the court may in- struct the jury that it i.-- their duty to presume such deed, unless the i proved. Ibid. 13. The a 1791 ag certain possessions of land valid against the - I the common law principle of presuming a grant from great length of possession. And if a person, and those under whom he claims, have been i ioi for thirty-five years of a tract of land, of which the Hi boundaries have been known an I visible, and he and they, under whom he holds, claimed up to th ise lines and boundaries, a grant for the land up to those boundaries, may be presumed to have issued — although the actual possession or enclosure of the occu- pants might not have extended to the lines — the possi iod, in that case, of a part being the | i rf the whole. Harris v. Maxivell, 4 Dev. and Bat., 241. 14. A long uninterrup sionof land, as for thirty years or more, by persons claiming the land as their own, will justify the presumption of a grant, although no connection by a loi other conveyanci is proved to ha v.' existed between the | ersons so holding possession. CancUerv. i 11 it., 407. 14. In all cases the effeol " ; lonj and u tori us pi affording presumptive evidence of right, is very powerful. In P boundary, it is, at least, tantamount to ■ utatii i - I., 49. 16. Th rup i of a slave for a loi j 1 even before the act of 1#20, afforded a strong presumpl n of i - title in the possessor, unless reason bl utted 1 a fidu- ciary i' i." ion, dedgi I bailmi nt, disability o alleged to b he like. G lliams, 5 [red., 4;>7. 17. No land rill, in law, ai to a presumption of title, wh an of the possession is shown ; but such . q, '. ith its attendant circumstances, i hit to the jury as a matter of fart, from which they may, or may not, infer that a legal conveyance of title had been madi to the person claiming under the possession. CaUender v. Sherman, ."> Ired., 711. 18. At any rate the original inconsistency of relation, be- 528 EVIDENCE.— XXX. tweenthe possession and the opposite title, must have been clear- ly dissolved and turned into an adverse possession for many years before suit, in OTaer to make it available as a ground for the presumption of title. Ibid. 19. Where a person has been not only in the actual occupation of a part of a tract of land for twenty-five or thirty years, but has also claimed it, and exercised acts of dominion d ownership over it, up to a well-defined boundary, for thai and a longer time, tins is, altogether, evidence to be lefl t<> the jury, to presume a grant of the land to the person, and of conveyances to those claiming under him, who so held the p MdxioeU, 7 Ired., 135. 20. In this State a black person is presumed to be a slave. State v. Miller, 7 [red., 275. 21. It is amongst the. strongest circumstantial proofs against i pi rs m, that he omits to give evidence to repel circumsi i ■ of suspicion against him, which he would have it in his power to give, if fcb iso circumstances of suspicion were unfounded. ■ Wright, 9 Ired 22. From an actual continuous possession of land up to known boundaries for thirty yes rs, the law presumes a grant to the par- ty in possession a mi a title in those claiming under him, and the' jury should so find. Such occupation m I as is consis- tent with the usages of agriculture, such as cultivating the land. dealing new, and turning out old fields, and cutting timber pro- miscuously. Wallace v. Maxwell, 10 Ired.. 110. 23. /' seems that the presumption of the death of an individ- ual, arising from his absence from his domioil seven years, does not imply that he died a id of seven years, but that ho died either then, or at some other period during the seven years. State v. M ire, 11 [red., 160. 24. ii is i tablished as a general proposition, thai from a long and peaceable possession oi' land,, upon a claim of right, a pre- sumption arises that the po on '.. rightful, and, ther was in n1 d and assurances, as are necessary to impart to it that character. The presumption is not deduced as an inference of fact from the possession, ai -• i li m e merely and i ording to its influence on the minds of the jury, in producing, or failing to produce a conviction, that the presumption is accord- ing to the truth, but the deduction is ma do, without regard to the very fact, by a rule in the law of evidence. Bidlardv. Barlts- dale, 11 [red., 461." 25. The force of this presumption is no1 destroyed, nor in any degree repelled by evidence, which renders it probable that in truth a grant was not issued. The giant is presumed, not because the jury believed that one issued, but because there is no proof that it did not issue; indeed, in the nature of things it. EVIDENCE.— XXX. 529 ■would seem that there can be no sufficient negative proof of the kind supposed. Ibid. 26. Where a long possession, under a claim of title by a grantee, as for forty seven years, has been proved and, to rebut the pre- sumption, it was shown that the party so claiming was unable to produce a grant, declared his belief that it never existed, and made efforts to obtain another grant; it was hi Id, that from the alleged possession, the jury should presume a grant, and that, as matter of law, there was no evidence to oppose and repel the presumption. Ibid. 27. A, in 1793, took possession under color of title, of land which had been previously granted to another, and died in 1794, leaving a will. In 1795, l'>, a son, but not a devisee of A, took ion without color of title, and continued in the unterrup- ted po - sing acts of ownership, for more than twenty years: and ' that B's title was perfected, by the ption of a conveyance from such possession.* Smiihv ,12 Ired. 11. 28. The presumption of death, arising from the absence of a party tor more than sever: years, is not removed by a rumor during that time, of his being alive, which rumor, upon Investi- gation, tm i! out to be without foundation. 31 tore v. Parker, 12 l 2:). 29. W rty has been absent seven years, without hav- ing been h "I of, the only presumption arising is, that he is ■ lead: and there is none as to the time of bis death. Where a precise time is relied on, it must be supported by sufficient evi- before the jury, besides the lapse of seven years since the person i a Til of Spencer v. Roper, L3 [red., 333. oO. i issession of land and acts of ownership, as by clearing, ir.. for twenty-three years, will raise the presumption of a conveyance thereof, so as to enable one, thus having acquired i it 1 ,. to maintain ejectment against a stranger who enters, though ihe former has not had the positio pedis of the particular part of the trad occupied by the latter. Smith v. Bryan, Busb., 1801 31. The la \ raises no presumption, nor can the court judicially know, that the court house of a county is five miles or more from the boundaries of such county. States. Revels, Busb., 200. Hi'. Where a payment was alleged, and the defendant having offered in evidence circumstances tending to raise a presump- tion of it, it was Iveld that he might show, in further support of the presumption, that the parties lived near each other, met almost daily, and that from the time the defendant had received the money, which In- was to pay to the plaintiff, the latter was much pressed for money by execution and otherwise. Daniel v. Whitfield, Busb., 2'.). 36. If the owner of the servient tenement erect gates and turn the road during the time, without objection on the part of the owner of the dominant tenement, it is evidence tending to show that the user was by permission, ami not as a matter of right. And the fact, that the owners of the two tenements are brothers, is some evidence, (though slight,) which may he considered in connection with the other facts. Ibid. 37. A settlement of accounts between parties a Hbrds presump- tive evidence, that all matters of charge 'and discharge on both sides were settled. Kennedy v. Williamson, 5 Jones. 284. 38. A presumption arises from a person being black, that he is a slave. Brookfield v. tStanton, 6 Jones, 156. 39. The use of a landing on a ii;p ream by the public, for twenty years as a matter of right, will afford ground for a presumption that it had been dedicated by the owner to the use of the public. Askewv. Wynne, 7 Jones, 22. 40. Whether the doctrine of the presumption of the death of a person, arising from his having gone to parts unknown, and not having been heard from in seven years, applies to slaves. Hay.. 359, (550.) 2. To enforce the attendance of a witness, at each and every term during the continuance of a suit, it is only necessary that lie should lie subpoenaed once; and if he fail, and is called out, the penalty imposed does not release him i'rom an obligation to appear at a subsequent term. Suieany v. Hunter, 1 Murph., 181. 3. A witness for the State, who is called out upon his recog- nizance, and has judgment nisi for the forfeiture entered against him, may apply to the court for a remission of the forfeiture, before a sci. fa. issues against him. State v. Herndon, 1 .Murph. 269. 4. Where a witness alleges that he was unable to attendeourl this inability must be decided by reference to the modes of trav- elling, which are in use in the community. And if practicable modes of conveyance to the court exist, and nothing is shown, on the part of the person summoned, that these were not within hip power, his non-attendance cannot be attributed to inability Eller v. Roberts, 3 (red., 11.. 5. A witness, who is summoned in this State while casually here, but who resides in another state, cannot he fined for non- attendance, if he havi returned to his own state, and be at home, at the time when his attendance is required in one of our courts. Kinzey v. King, 6 [red., 76. li. Where a witness has been summoned to attend at court, though a verdict may be rendered in f : use, yet, if anevr 532 EVIDENCE.— XXXI.-XXXII. trial be granted, lie is bound to attend the subsequent terms, until a final decision, without a new subpoena. Fulbright v. M<- Elroy, 10 Ired., 41. 7. Where two subpoenas were served upon a witness, requiring his attendance on the same day, at different places, distant from each other, it was held that he was not bound to obey the writ, which had been first served upon him, but might make his elec- tion between them. Icehour v. Martin, Busb., 478. 8. A witness, who fails to attend when summoned, on an issue in bastard}-, is subject to a line of $40, instead of $80, under the Rev. (.'ode, ch. 31, sec. 60, tin- suit or proceeding being a civil, and not a criminal one. Ward v. Bell, 7 Jones, 79. XXXII. WITNESSES, TUEIR COMPENSATION AND REMEDY THEREFOR. 1. To entitle a witness to have his tickets for his attendance taxed in the bill of costs, lie must procure ami tile them with the clerk. Moore v. Iskr, Mar., 78, (81.) 2. A witness may have his dues taxed, and an execution there- for, though omitted in a previous execution; but this is at his own expense. 11' a, year and a day have elapsed, he must issue a sci. fa. in the name of the party to the judgment, before he can have Ids execution. Anonymous, - Hay., 138, (o2o.) 3. The witnesses of the prevailing party, prior to the act of 1796, could not warrant for their attendance after judgment in the suit, Standley v. Hodges, Tay., 274. (115,) S. C.,Conf. lie])., 330, (413.) (See Rev. Code, ch. Ml, sec. 74.) 4. A witness, who, after being summoned on the part of the State, removes to another state, is entitled to mileage from the place of his actual residence. State v. Stewart, 1 Car., L. 11., 524, (138.) 5. A witness, summoned by each party to a suit, is entitled to compensation from each. Peace v. Person, 1 Murph.. 188. 6. Witnesses should, in swearing to their attendance, specify each term, and the ticket should state the number of days' at- tendance at each term. Thompson v. Hodges, 3 Hawks, 318. 7. A witness, who attends court without being subpoenaed, is not entitled to prove his attendance, so as to charge the losing party with the amount of his witness ticket, Ibid. 8. While a suit is in progress, the witnesses have a right to demand from the party, at whose instance they are summoned, the payment for their attendance at the end of each term, or as soon as the suit is disposed of. Their claim, after jndgment, is not against the person summoning them, but against the person bound to pay the eosts under the judgment, unless the party so bound is insolvent, Carter v. Wood, 11 Ired. 22. 9. Witnesses, summoned by a person suing in forma pauperis, are entitled to their costs for attendance, which they may recover EVIDENCE.— XXXII.— EXCHANGE, &c. 533 of him, or may file their tickets, to be taxed against the defend- ant in the event oi the plantiff's success. Officers of the court only are included in the order allowing- the suit to be presented by the plaintiff as a pauper. Morris v. Rippy, 4 Jones, 533. (See Rev. Code, ch. 31, sec. 43.) EXCHANGE. 1 Where there has been a temporary exchange of personal chattels, there is no principle that the one shall lie returned or tendered to the former owner, before the other, or its value, can be recovered. Xotl v. Paul, 4 Jones, 75. EXECUTION. I. What ruay be levied on and sold undei' execution. II. Where and be what county an exe- cution may issue, and of its re- turn. III. Levy, sale, and application of the money raised IV. Forthcoming bonds taken on a levy. V. Right to the surplus, after the sat- isfaction of an execution. VI. Lien and priority of executions. VII. Of void and irregular executions, and proceedings to set aside exe- cutions. VIII. Purchaser at an execution sale. IX. Of tin' i,iplas ad siitisfaeiewliiiii. X. Of the discharge of the defendant in the execution. WHAT MAY BE LEVIED ON AND SOLD UNDER EXECUTION. 1. An execution cannot be levied on a chattel of the testator, alter it is delivered ov< r to the' legatee, but he must account foi its value. Hostler v. Smith, 2 Hay., 305 (494.) 2. A slave, in the- hands of an administrator de limit nun, can- not be levied on and sold for the debts of the next of kin ; it not being such an equitable interest of the next of kin as may be sold under the act of 1812. It follows that the administra- tor might sustain an action against the officer fur the seizure and sale. MrKhr'nunj v. Carrotra//. X. C. Term, l'.'l (G2I>). (See Rev. Code, ch. 45, sec. 4.) 3. Where a deed is made in trust for creditors, and they never 534 EXECUTION.—!. sign it, nor assent to it either expressly or impliedly, a trusjs may arise to the bargainor, which will be subject to execution under the act of 1812. Moore v. 3IeDufy, 3 Hawks 578. (See Rev. Code, ch. 45, sec. 4.) 4. After a deed in trust or the satisfaction of ereditors was executed, wherein was contained both real and personal proper- ty, a part of the personal property was levied on and sold under execution; and it was held that the sale passed no title; because the debtor has no such equitable interest as could be sold under execution by virtue of the act of 1812; the trust being a mixed one, partly for one person and purpose; and partly for another. Brown v. Graves, 4 Hawks 342. (See Eev. Code, ch. 45, sec. 4. 5. A sheriff can sell only such estate as the defendant in the execution can convey, by deed passing an estate. Where the deed of the defendant would operate only by way of estoppel, a sheriffs deed conveys nothing. Gentry v. Wagstaff, 3 Dev., 270. 6. The esate of a person, who holds intrust for creditors, with a resulting trust for the grantor, is not within the act of 1812, subjecting equitable interests to sale under execution. Morde- eai v. Parke?; 3 Dev., 425. 7. Goods which were the property of a decedent, cannot be seized in the hands of his donee, by virtue of an execution un- der a judgment against his executor. If the creditor seeks to subject them, he must charge the donee as executor de son tort. Boijitirx. Roberston, '■'> Dev., 537. 8. Slaves held by a trustee, in trust to be divided among the children of A. who may be now living, and those who represenl any deceased child, &c, are not liable to an execution, at the in- stance of the creditor of one of the cestuis que trusts. GUI is v. McKay, 4 Dev., 172. 9. A sale of an equity of redemption, under an execution at law, at the instance of the mortgagee for his mortgage debt, is not sanctioned by the act of 1812. The words of the act are general, but this exception arises necessarily out of the subject and spirit of the act. Camp v. C'oxe, 1 Dev. and Bat., 52. (See Rev. Code, ch. 45, sec. 5.) 10. The nature of the interest sold is not changed by the se- cond or third sections of the act of 1812. The rights of the par- ties remain as before, equitable; therefore the act is to receive its proper construction from a court of equity. Ibid. 11. Whenever a sale under ay?', fa. cannot have the effect to satisfy the plaintiff, the writ eau confer no power to sell. Ibid. 12. The object of the act of 1812 was to make the mortgaged estate available to the other creditors of the mortgagor; not to affect the relation between Mm and the mortgagee. Ibid. 13. As courts of equity relieve against contracts between per- sons in a fiduciary relation, so they ought to prevent the mort- EXECUTION.— I 535 gagee from purchasing the equity of redemption at execution Bale, and thereby destroying the relation between him and the mortgagor, created by the contract of loan. Ibid. 14. Growing crops are the proper subjects of a levy and im- mediate sale under a p. fa., and the purchaser acquires a right of ingress and egress to cut and carry them away when ripe. Smithy. Tritt, 1 Dev. and Bat., 241. — (Growing crops cannot now be levied on, until they are matured. Eev. Code, ch. 45, sec. 11.) 15. All vested legal interests of a debtor, which he himself can legally sell, in things which are themselves liable to be sold un- der a p. fa., may be sold. Ibid. I(i. A vested remainder in slaves may be sold during the life of the tenant for life, under a //. fa. against the persou entitled to such remainder. Ibid. 17. The legal interest of a defendant in undivided chattels may ;ed and sold under execution. Islay v. Stewart, 4 Dev. and Bat.. 160. 18. Where a debtor conveyed a slave, together with other Eroperty real and personal, to his creditor, to hold to him and is assigns forever, but the deed was expressed to be made upon condition that, if the debtor should pay the amount due by a cer- tain time, it was to be void; and the creditor covenanted that, until that time, the debtor should retain the possession and en- joyment of the property: and. before the expiration of the time, the creditor, with the assent of the debtor, took possession of the slave, who was taken from him, under an execution in favor of another person against the debtor, it was held that, under the deed, the creditor had the legal title of the slave, and that only such an equitable interest remained in the debtor as could not be taken and sold under an execution; and that for the taking the slave under an execution against the debtor, the creditor might maintain an action of trover. Burgw v. Burgvn, 1 Ired., loo. l!l. A sheriff cannot sell under a fi. fa. what he has no power by the writ to sell, what is not goods or chattels, lands or tene- ments, within tiie sense of the writ, as, for example, bonds or bank stock; and the sale, being a nullity, a ladder at such sale is not compellable to pay tin. amount of his bid. Foot v. Glover, 2 Ired.. 129. 20. Where a debtor lias made a conveyance ol his land to a trustee, to lie sold for the benefit of his creditors at a certain time, should not the debts lie previously paid, and there is a resulting trust to himself, his equitable interest in the land may be sold under execution, even before the day, when, by the terms ot the deed, the trustee was authorized to sell his legal interest. Ibid. (See Rev. Code, eh. 45, sec. 4.) 21. An officer has a right to levy an execution upon a horse, 536 EXECUTION.— I. though the owner is riding him at the time. State v. DiU/iard, 3 Ired., 102. 22. The goods of a deceased person, in the hands of an admin- istrator pendente lite, cannot be taken under an execution against the administrator. And if they be so taken and sold by the sher- iff in such case, an administrator with the will annexed, subse- quently appointed, may support an action of trespass, or trover, against the sheriff for such seizure and sale; and he cannot, in such action, reduce the damages, by showing thaf he had paid the administrator pendente lite the surplus of money arising from the sale, after satisfying the execution. Satterwhite v. Oat - ■son, 3 Ired., 549. 23. Where a person crops, or works with the owner of land for a share of the crop, and, after it is made, the crop is divided, tin- share of the Gropper is liable to be sold under execution, though it was levied on before the division was made, and though it still remains in the crib of the owner of the land. Hare v. Pear- son, 4 Ired., 76. 24. Where a slave belonged to one for life, with remainder to another, and there was an execution against both, but the- re- mainderman, prior to the lien of the execution, had conveyed his interest in the slave to a trustee, for the payment of his del its, it ivas held that only the interest of the tenant for life was sul>- ject to the execution, the remainderman having paited with his legal estate, and having no such resulting trust as was liable to execution. And although, in the same deed of trust, a tract of land was conveyed for the same: purposes, and the debts were all satisfied by the sale of the land, after t he institution of an action for the slave forced on the levy, yet this did not enlarge the interest in the slave which was obtained by the levy. Barham v. Massey, 5 Ired., 192. 25. The lessors of the plaintiff, in action of ejectment, claimed under a sale on an execution, tested in March, 1832, against one Lewis, the defendant showed that Lewis had only an equi- table title, and that by a bond, dated in January, 1832, he had contracted to sell the same to the defendant; and it was held that, the title of Lewis being only equitable, the defendant could not be estopped from insisting thereon ; and, further, that Lewis, by his bond, had conveyed all his equitable interest to the de- fendant, before the teste of the plaintiff's execution, so that there was nothing on which the execution could be levied. Edney v. Wilson, 5 Ired., 233. 26. Where negroes are conveyed to a trustee, in trust "to be kept, hired out, or otherwise disposed of, for the maintenance and support of " the cestui que trust, the cestti que trust has no such ecjuitable interest, as is the subject of execution under the act of 1815. IIcGee v. Hussey, 5 Ired., 255. (Rev. Code, ch. 45, wsec. 4.) EXECUTION.— I. 537 27. The principle, well established by the courts, is, that the legal estate is not to he transferred or divested out of the trustee by ;ui execution, unless that may be done without affecting any rightful purpose, ior which that estate was created or exists. Where the cestui que trust has noi the unqualified right to call for the legal estate immediately, as where tin- nature of the trust requires it to remain in the hands of the trustee, who, by the terms of the deed, is to do acts from time to time, the act of 1-812, authorizing the sale of equitable inter :sts, does not apply. II t'« ' 28. The interest, which a railroad corporation lias in the land condemed for its use. may be sold under an execution against the corporation, although the corporate franchise itself cannot under an execution. And the right of transporting per- sons or things, over the land of another, fur till, is but an ment united with a franchise, and is not distinguishable from Other franchises. State v. litres. ."> [red., 299. 2[l Land, which has been vestedin a railroad company forthe use of the. road, it' sold by^execution, belongs to the purchaser. until the charter of the company would, by its limitation, have expired. Ibid. 30. A railroad is not, in all respects, a highway pubUci juris, but it is tin,' subject of private property, and, in that character, is liable to 1m- sold, unless the sale lie forbidden by the legisla- ture; not the franchise, hut the land itself constit uting the road. Ibid. 31. Where land is rented for a share of the crop, an execu- tion cannot be levied on the lessor's share, until it has been al- lotted to him by the lessee. Gordon Armstrong 5 Ired., 409. 32. The act of 1812, subjecting the equity of redemption to an execution at law, includes not onh express mortgages, but also those that were intended to be securities in the nature of mortgages, and so held to be by the construction of a court of equity. Davis v. Evans, 5 Ired., 525. (See Rev. Code, eh. 45, sec. 5.) 33. The act of 1812 was not intended to embrace any case, in which the trustee could not voluntarily convey to the debtor th'e legal estate, without incurring a breach of trust to other per- sons, with whose interests he is alsocharged. Battle v. Petway, 5 Ired., 576. (See Rev. Code, eh. 45, sec. 4.) 34. Where the court of equity cannot decree a conveyance of the legal title, at the suit of the cestui que l rust, the trustee's es- tate cannot be divested by a sheriff's sale, under an execution against the cestui que /nisi, il.i I. 35. A vested remainder or reversion in slaves may be sold under a //. f'n.. subject to the temporary right of a hirer, or other particular tenant. Carter v. Spencer, 7 Ired, 14. 36. Where a slave has been conveyed by a deed in trust for 538 EXECUTION.— I. the payment of debts, such slave cannot be levied on and sold,. under an execution against him who executed the deed, at least while any of the debts remain unpaid. Thompson v. Ford, 7,' Ired., 418. 37. Where one agreed, by parol, to convey a tract of land to ■ B, upon condition that he would build a house upon it, but, be- fore this was done, C levied an execution against B, on his inter- est in the land, and then the owner conveyed the land to D, an- tedating the deed, with the view of overreaching C's execution, it was held that the mere antedating the deed did nut make it fraudulent and void; and further, that B, having only a parol contract for the sale of the land to him, had no equitable claim for it, which was liable to execution, under the act subjecting equitable interests in land to sale under execution. Patterson v. Bodenhammar, 9 Ired., 96. 38. Under an execution to sell the lands descended from A to P>, the sheriff has no authority to sell lands devised by A to B, and if such sale be made, it will lie void. Raifordv. Peden, 10 Ired., 466. 39. An officer, who has an execution against a tenant in com- mon of chattels, may levy upon the undivided property, and take it into his possession, for the purpose oi selling the interest of the defendant in the execution ; and be will net, thereby, sub- ject himsell to an action by the other tenant in common. BJe- vins v. Baker, 1 1 [red. 291. 40. A reversion in fee, aftei a term of years, is the subject of execution; the sheriff's deed is a.s effectual to pass it as that of the reversioner; and the tenant, who claims under such deed, is not estopped from setting it up as a bar to an action of eject- ment by the reversioner. Murrill'v. Roberts, 11 [red., 424. 41. A. by a bonajide deed, proved and registered in May, 1843, conveyed a slave to 13, in trust to secure the payment of certain debts: and B, by deed, conveyed the slave to C for a certain price, all of which was afterwards paid by A, except $100. C then, by deed, dated in 1847, and proved in 18-19, in considera- tion of said $100, conveyed the slave to D; and it was held that though I) might have taken the conveyance, yet, while the property remained in that situation, the $100 not being paid, A had no such interest as was liable to an execution against him, Griffin v. Richardson, 11 Ired., 439. 42. When a vendor of land retains the title as a security for the purchase money, and a balance remains due, the vendee has not such an interest as is liable to- execution under the act, Rev. Stat. eh. 45, sec. 4, so as to divest the legal title of the vendor. Bad- ham v. Cox, 11 Ired., 456. (See Rev. Code, eh. 45, sec. 4.) 43. Under a vend. expo, against land, the sheriff can sell only that which he could have sold under the//, fa., on which the EXECUTION.— L 539 vend, expo, issued, while such Ji.fo. remained in his hands mire- turned. Ibid. 44. If the defendant in an execution has no interest in land, which is subject to be levied on, while the fi-fa. remains in the hands of the sheriff uureturned, but after the return he acquires a title, which is subject to execution, this subsequently acquired title cannot be sold under a vend.expo. issuing upon such/?./a. Hid. 45. Such subsequently acquired title shall not operate as an estoppel in favor of a purchaser at a sale, made under such vend. as the law only sells estates under its process, and not the s of an estopp I Ibid. 46. An officer may levy an execution upon a standing crop. provided it is matured; as the act of 1844, ch. 35, which pro- hibits officers from levying executions "on growing crops," embraces only crops which are not matured. Shannon v. Jones, 12 Ired.. 206. (See Rev. Code, ch. 45. sec. 11.) 47. Where A contracted for land, and upon paying for it, had the title made to B, with a fraudulent intent to hinder and de- lay his creditors, and afterwards, with the same fraudulent in- tent on the part of A, the land was conveyed to C, who sold and conveyed it in exchange for a mare; it was held that A had no such interesl in the mare as could be levied on and sold, under an execution against him. Parris v. Thompson, 1 Jones 57. 48. A person, who has hired a horse for a year, has! such an interest in him as may be levied on and sold under execution: and the bill of sale executed by the officer, though purporting to convey the absolute interest in the horse, will only pass such as the debtor had. H<,>:st,,it v. Simpson, 1 Jones 513. 49. Where a son bought a tract of land with tin 1 money of his father, and took tin- deed in his own name, but, for the use and benefit of his father, and for the purpose of defrauding his father's creditors, it was held that the land was not liable to be sold under an execution against the father, by virtue of the act of 1812. In such ease the remedy is in equity. Jimmerson v. Duncan, 3 Jones 537. (See Rev; Code, ch. 45, sec. 4.) 50. Where a husband buys land and pays for it with his own mo- ney, but directs that tin.' title shall be made to a third person in trust for his wife, he has no such trust estate as can be sold under ex- ecution against him. Williams v. Council, 4 Jones iiH\. 51. Where a trust is divided by giving a particular estate to A, with the remainder or reversion to B, the trust estate of A cannot be sold by execution, under the act of 1812. IJiid. 52. Where the purchaser of property, real or personal, has the title ma.de to another, on a secret fraudulent trust for himself, it cannot be subjected to the payment of his debt, by an execution against him at law, but the plaintiff's remedy is in equity. Murris v. Rippy, 4 Jones 533. See (Deed— Deeds in trust 1) — (Fixtures 2-3) — (Fraud — 540 EXECUTION.— II. Conveyances, agreements, &c, fraudulent as to creditors, 11) — (Release 4.) II. WHEN AND TO WHAT COUNTY AN EXECUTION MAY ISSUE, AND OF ITS RETURN. 1. The court will not permit an execution to issue, until after the close of the term, at which the judgment was obtained. Pettiford v. Sanders, 1 Hay., 399 (459.) 2. A return mi an execution by a sheriff of a private matter between himself and the plaintiff in the execution, e. g., "pay- ment to the plaintiff," or indulgence by the plaintiff," is no evi- dence for the sheriff in a suit brought against him by the plaintiff in the execution; but between third persons such return is evi- dence. Bank of Newbern v. Pullen, 4 Dev., 297. 3. "Nulla bona" is the proper return for a sheriff, where one creditor postpones the sale, and then another proceeds to sell an exhausts the property. Ibid. 4. A levy by a. sheriff upon goods, where they remain in the possession of the defendant, is no payment or satisfaction of the judgment, and a new execution may issue, as well where there are several defendants, as where there is but one. Binford v. Alston, 4 Dev.. 351. 5. It, at the time a judgment is obtained, the parties agree that an execution shall not issue for a certain time, which is duly en- tered of record, the time, within which a plaintiff can take out execution, is extended to twelve months and a day from the ter- mination of the specified time, and no execution can issue in the mean while, except by order of the court. Wood v. Baijlcy, 12 Ired., 83. t). Where a decree was made in the county court in favor of the plaintiffs, on a petition for alegacy, in which there were sev- eral plaintiffs, one of whom is the executor of a deceased Legatee, and this executor died before satisfaction, or execution sued out. the right to the legacy of the deceased legatee vests in the ad- ministrator Jr bonis non, but he is not entitled to have execution until he has made himself a party, either by sci. fa., or accord- ing to the course of courts of equity. EUiston v. Andrews, 12 Ired., 188. 7. Where several legatees obtain a decree against executors for a monied legacy, the decree is several, and each is entitled to a separate execution for his share. Ibid. 8. Suits for legacies, distributive shares, &o, in the courts of law by petition, are considered in the nature of proceed- ings in equity, in respect to the pleadings, taking the ac- counts, decreeing and rehearing or reversing; and. also, as to process of execution on the decrees. Ibid. 9. Where a writ of capias ad respondendum was issued against EXECUTION.— II. -III. 541 three defendants, of whom two lived out of the county, and the third in the county, where the writ issued and the judgment was obtained, it was held that, in the absence of special instruc- tions, the clerk might, under tin- act of 1850, eh. 17. issue the execution to either county of the residence of the different de- fendants. Bank of Cape Fear v. Stafford, •! Jones, 98. (Sec Rev. Code, oh. 4.">. sec. 29. ) K). Under the ac1 of L850, the endorsement of the date of the issuing of the i should be on the record of the court, and not upon the process of execution. Ibid. 11. An allegation in a sci. fa. against a clerk, that he failed to issue an execution To one county, when ho had an option to issue it to thai or to an ither a unty, is not sufficient to justify an amercement under the act of 1850. Ibid. 12. The provi ' >r. i of the Revised < 'ode, eh. 31, see. 50, requi- ring tie dts, proi ess, &c, to be made to the first dayofttt I ra to which they are returnable, do not apply to writs nl 175. Seo ( Exi suti a — Of the discharge of the defendant in the ex- ecution III. LEVY AXD SALE, AND APPLICATION OF MONET! RAISED. 1. A sale 'I land by a sheriff is valid, though lie dots not return I arv. Hamilton, Tay., 10, (7.) 2 The sum raised upon an execution, if insufficient to dis- charge the plaintiff 's judgment, must be applied solely to his usgtj and the costs ol the di R udant's witnesses cannot be paid out of the money tints raised. Pearson v. Haden, 1 Murph, 140. 3. If on sale hid for a personal chattel, ami fail to pay I I reb; becomes void, and thesherifi mayeitber expose tli-' chalti ! again at public sale, or take the next highest bidder as the purchaser, by receiving the money and making him a title. Cummings v. Jfrdiil. 2 Murph.. ;!.">7. 4. If a constable levy an execution upon a horse, and then agree to Ie1 tie- defendant take- him home, he may immediately reseize him. for his agreement was a mere voluntary courtesy, and either the levy was not abandoned by it. or, it abandoned, the execution being unsatified, the officer can immediately make a new levy, which vests the property in him. Douglas v. Mitch- ell. 3 Murph., 239. 5. If a sheriff hive levied an execution against chattels in due time, h" m. i. die levy, by a sale after the return day, though he cannot I. •vv after that day. Laitieex. Stone, 1 Hawks.. 329. (). It is the duty of oflicers to sell lands in streh way as to raise the most money ; but a Bale en masse of several tracts, held under distinct titles, and not lying contiguous, was supported, it not 542 EXECUTION.— III. appearing that either the sheriff of purchaser know the situation of the land. Wilson v. Ttoitty, 3 Hawks., 44, S. P. Thompson v. Hodges, Ibid., 51. 7. Where a sheriff levied on land and negroes, and left the negroes in the defendswit's possession, taking a bond for their forthcoming at the day of sale, it was held that he might soil the land, in the event of the non-production of the negroes. Wilson v. Tioitty, o Hawks., 44. 8. It is not necessary to constitute a levy, that an officer should actually touch personal property, or remove it out of the defen- dant's possession; hut a mere delivery by the defendant, of a list of his negroes to the officer, is not a levy; though had the ne- groes been present, and had the officer signified tied lie' held them bound to answer the execution, and, if no opposition were made to the officer's possessing himself of them, if he desired, it would have amounted to. a lew. Gilh i/ v. Dickerson t ■"> Hawks., 293. 9. A levy on chattels vests in the sheriff a special property, which enables him to sell them after the return day. without a vend, expo.; hut a levy on land gives him neither property, nor a right of possession : he has a naked authority to sell only, and his sale transfers a right of property to the purchaser, and he cannot, without the consent of the tenant, deliver to the pur- chaser the actual possession, It follows that his sale of land, after the return of the execution, and without a new writ, is made without authority, and passes no title. Burden v. McKiw vie. 4Hawks., 279. 10. It seems that a levy on land, shown only by an endorse' ment on the Wril made after the return day. is not valid. Ibid. 11. A sale of land, made by a sheriff on the return day of a fi. fa. is' good. Tayhev. Qashins, 1 Dev., 295. 1:.'. A sheriff has a right, at his own peril, to apply money raised under execution to any writ in his hands: therefore, M here a sheriff had a number of fi. fas. in Ins hands, of equal teste, one of which was an alias founded on a prior return of "too late to hand," and. being indemnified by the plaintiff in a, junior fi. fa.. sold property and returned that he would not have acted under any of the writs without an indemnity, it was field that the. sheriff, by his return, had appropriated the money raised to the writ, on which he was indemnified, and that the plaintiff, in the junior fi. fn.. was entitled to it, in preference to those writs, which were, in all respects, equal to his, but also to the alias. Yarborough v. State Bank, 2 Dev., 23, 13. Where the sheriff has raised money under several execu- tions, and is at a loss how to distribute, the court will, in a sum- mary way, upon the facts stated in the return, advise how it should be distributed. But where a sheriff voluntarily makes an appropriation of money in his hands to one of several executions. EXECUTION.— Ill 543 the court will not, upon a rule, deprive the plaintiff in that exe- cution of the money thus paid him, but leave the persons ag- grieve. 1 to their action against the sheriff. Washington v. Sun- ders, 2 Dev., 343. 14. Where A sued out an original attachment, directed to the sherift or any constable, and returnable before the county court or any justice, but at at no certain day. which was levied by a constable, and afterwards Bsued out an attachment against the same person, and levied upon the same property, which was, in all respects, regular, and he obtained the first judgment and issued his vend, expo., upon which the sheriff returned a sale and paid the money into court ; and afterwards A obtained a judgment ancl took out execution; upon a rule to distribute the money, it was held that the return of the sheriff was an appropriation of the to the first, exei ution. Ibid. 15. Upon rules on the sheriff to apply money in his hands to particular writs of execution, the court proceeds solely upon the tacts stated in his return ; and affidavits of extrinsic tacts will not 1 v. Clark, 2 Dev., M.">4. li>. The sheriff is not such an agent of the defendant in an execution, that an action will lie in the name of tic fitter against the purchaser at an execution sale, for the excess of Ids bid be- yond the amount of his execution. Coxe v. Camp, 2 Dew\, 502. 17. An execution is an entire thine,-, and must be completed by the hand which begins it; hence, where a fi. /'<<. was levied by one sheriff, and a vend. expo, issued to his successor, it was held thai the latter could not do any official act under the writ, and was not, therefore, entitled to commissions. Sanderson v. ,31 >ev., 38. 18. A levy vests a properly in personalty in the sheriff, to which, upon his death, his executor succeeds; and upon his death": ■ against him or his executor is the pr< process i bid. 1". I death of a sheriff, his successor must, at his pe- ril. tak i r in custody upon a ca. sa. Hut when:' i beriff is living, he must deliver the prisoners M and give notice oi the executions, wherewith they ^recharged, or he remains liable. Ibid. 2*1 Actual possession is not necessary to the validity of a afficient if the goods are subjeel to his ' v. Rbscoe, 3 Dev., 50. 21. Where the sheriff has two writs off. fa. in favor of the same plaintiff, and against a principal debtor alone, and another against the saine debtor and a surety, and raises mdiiey by a sale under both writs, it is to be applied pro rata as to both; ami neither the sheriff nor the plaintiff can, by a subsequent ap- plication, affect the right of the surety to have the judgment against him discharged prd tanto, Hill v. Child, 3 Di v., 265. 544 EXECUTION.— III. 22. A fi. fa. vests a property in goods seized under it in the sheriff; but as to land, it confers upon him only a power to sell. Goods may, therefore, be sold by a sheriff under a previous levy, without a venditioni; but a sale of land without such authority is inoperative. Ibid. 23. Where a sheriff levies a fi. fa. on land, and goes out of office, a venditioni must bo directed to bis successor. Ebd. 24. An executory devise in land is not destroyed by ;i sale; under an execution against the first devisee. Southerlandv. Cox, .". Dev. :-!!l4. 2;">. A s^le of the estate of one tenant in common, under an execution against all, does not divest the estate of the others. Ibid. 26. The vendee of land, bound by a fi. fa., cannot maintain an action against the sheriff, for selling that land under the writ, instead of the chattels oi the defendant; such action being personal to the defendant in the fi. fa. v. Parker, 3 Dev., 425. 27. A sale of land under a fi. fa., made after the return day. but before it is r turned, is valid, though the sale was not opened on the first day appointed, and wits made on a day to which it was postponed. Morded&i v. Speight, 3 Dev. 428. 28. A sah' of lands by the sheriff, under execution, is not within the act of 1819, making void parol contracts tor the side of land and slaves. Tatev. Greenlee, 4 Dev., 149. (See Rev. ' ode. ell. "ill. see. 11.) 29. An endorsement on an execution by the plaintiff, or his attorney, is n i pari of the execution, hut may be regarded by the sheriff as instructions to him, from such plaintiff, or his attorney. Barl r v. Munroe, 4 Dev.. 412. 30. A sheriff, who has seized property sufficient to satisfy an execution, and surrendered it on receiving a forthcoming bond, is entitled, upon a breach of the bond, to recover the amount of the judgment, although he may not have paid it to the plaintiff in the execution. Fonter v. Frost, 4 Dev., 424. 31. A sheriff is not bound, independent of the act of 1826, to levy an execution and raise the money, upon the property of the principal debtor, iii preference to that of the surety. And if he even combines with a third person to throw the debt upon t!ie surety, when he might have made it out of the principal, he. does not thereby render himself liable to the action of the sure- ty. Eason v. Petway, 1 Dev. and Bat.. 44. (See Eev. Code. eh. 31, sec. 124 and 125.) 32. As to a sheriff, except under the act of 1826, all the de- fendants in an execution are principals, and he may levy upon the property of either and in what proportions he pleases. Ihid. 33. A sale, under an execution, of a growing crop, made at EXECUTION.— III. 545 the distance of two miles from the place where the crop stands, is void, and passes no title to the purchaser; for the law always requires the presence of personal chattels in sales under execu- tion. Smith v. Tritt. 1 Dev. and Rat.. 241. 34. After an execution sale of unripe growing grain, it is in custodia legis till it ripens, after which the purchaser has a reas- onable time to rut andcarryit away. Ibid. (BytheRev. Code, chap. 45. sec. 11, growing crops cannot he levied oil and sold under ex --11111111. y are matured.) 35. To t!i" 1 ivy of a writ upon personal property, whether a writ f attachment or execution, the law requires a seizure. If, in th e nature of the thing, actual seizure lie impossible, then some notorious act. as nearly equivalent to actual seizure as pos- sible, must he substituted for it. Hence, in levying upon a grow- ing crop, i ci 1' must go to the premises, and there announce that In- seize 1 to answer tin- exigency of his writ. State . 1 Dev. and Ba .. 3s4. .">i;. Where an execution authorizes the sheriff to sell all the lands of the defendant, lying on the headof a particular mill pond, and adjoining the lam Is of a particular person, if the lands embraced in that description coiuprehi ad mere tracts than one, a sale en masse will be supported, in the ab 1 nee of fraud on the part of the sheriff and purchaser. Huggins v. KetclvOjm., 4 Dev. and Bat., 414. .'i7. After the return of a fi. fa. regularly levied on land, the sheriff cannot sell the land without a new writ giving him that authority. Loin v. Gates, '1 Ired., 14. 38. It seems thai an officer does not, in any case, become a jtrespasser by seizing under an execution privileged articles, such as arms for urn •: er. I lertainly he does not become so, unless he seizes them with a knowledge that they are privileged goods. State v. Morgan, 3 Ired.. 186. 39. If goods I"- taken under a fi. fa., they vest in the officer, and he may sell them after he has returned the writ, and at any distance of time. And if he do not sell, the plaintiff can compel him by a vend, expo., and this he may sue out, in like manner, at any distance of time. Smith v. Spencer. '■) Ired., 256. 40. When land is levied on, the plaintiff may sue out a vend*, expo, at any subsequent time, before the debt is satisfied, with- out regard to the year and a day. and without resorting pre- viously tn a sd. /".■ and a sale under such a vend. expo, will be good against the defendant in the execution, and those who claim under him; but the laches of the plaintiff in not enforcing a sale may entitle creditors having younger executions to be preferred. 41. Qucere, whether the 114th see. of the 31st ch. of the Rev, Stat., (Rev. Code, ch. 31, sec. 109,) has altered this doctrine Ibid. 42. Where a sheriff, having several writs of fi. fa. and vend 35 546 EXECUTION.— ITT. expo, against a person, at the instance of different creditors, takes an indemnifying' bond from one of the creditors, and sells, in consequence of that indemnity, he has no right afterwards to apply to the court for its advice, as to the distribution or pay- ment of the money raised by the sale, especially when he has not paid the money into court. Eamsour v. Young, 4 Ired., 133; 43. Advice given bythe court, on such an ex parte application, will not bind any of the creditors, who may still pursue their remedy against the sheriff, if they think themselves aggrieved by his refusal to pay them. When the court, however, proceeds on such application to give its advice, the proceeding being eas parte, none of the creditors can appeal. Ibid. 44. A sale of a crop of com in a field, by a sheriff under exe- cution, is good, although the sheriff was not in, nor immediate- ly at the held, if he were near enough to be in plain view, so that bidders saw what they were bidding for; for that is the purpose ol requiring the thing sold to be present. Skinner v. Skinm r, I Ired., 175." 45. On the application of a sheriff for the advice of the court, how he is to apply moneys raised by him under several//, fcs. on judgments in court, and writs of vend. expo, i suing on orders" foB the sale of land levied orl by a justice's execution, the court will not look behind the orders of sale and the vend, expos, issuing thereon. IVJritaker v. Petway, 4 [red., 182. 46. A fi. fa., although it creates a lien on property, which pre- vents the owner from selling it. unless subject to the lien, does not divest the property out of the debtor, until a seizure; and even after the seizure, the sheriff ""mi.-; but a special prop- erty, such as is necessary lor the itisfa n of the debt, and leaves in the original owner the general which is an interest that he may convey and sell at law. Tnerehflfe, where the plaintiff received a bona ' property! which nbject to the lien of a fi. fa., and the defendant, after the date of such conveyance, levied execution: from a justice on the said property, and the same was sold by the sheriff and the con- liable jointly, the plaintiff is entitled to recover from the defen^ dant, who caused the property to be sold under the justice's exe- cution, and received the amount of such sal . the excess of what : itfficient to satisfy the sheriffs execution. Alexander v. pprings, 5 Ired., 175. 47. Ifa sheriff sell, under an execution, property which does not belong to the defendant in the execution, and the plaintiff in the execution, with a knowledge that the money was so wrongfully raised, receives it from the sheriff, he is guilty of the tort equally with the sheriff. But where the real owner of the property is present at the sale, and does not object to it. but acquiesces in it, he cannot support an action of tort against EXECUTION.— III. 547 either the sheriff or the plaintiff in the execution, who receives the amount raised by the sale. Lenta, v. Chambers, 5 Irecl., 587. 48. An officer, who under a fi. fa. seizes a horse and mule. puts them in a stable on the premises of the defendant in the execution, and sleeps on the premises during the night of the seizure, has such a possession as will entitle him to an action against another officer, who goes during that night and takes away the property under another fi. fa. ffivesv. Porter, 7 Ired.. 74. 4'J. It would be unm cessary to require an officer to remove property instantly; as it answers all the purposes of giving no- toriety to the levy, for the officer to take possession of the pro- perty on the premises, provided he remains there with it, so as to be able to exercise over it that dominion, which owners in pos- session usually exercise, ibid. 50. It is tlie duty of an officer to sell property levied on in a way to bring the best price, unless the parties interested con- sent that tii ■ sal'- may be made in a different way. State v. Mb ■ ■■ . 7 Ired., 387. 51. A Bheriff cannot apply money in his hands, which he has cbllecte 1 ..'i an execution m favor of A. to the satisfaction of an execution in his hands againsl him; though itseems he may levy an execution on monev in the possession of the debtor. Stat* v. Lea. 8 Ired., 94. 52. Where an execution is aboui to be levied by a constable, the debtor, if he have personal property, must show it, and ifh'a do not, the offic -r commits no wrong by levying on land in the Brat instance. So, if it do not appear that the officer knew of the existence ol personal property, he is justifiable in levying on the real estate. Sloan v. Stanley, 11 [red., 627. 53. A sheriff is not bound, like a constable, to any particular- ity in Ins return of a levy of a //. fa. on land. Judge v. Hous- ton, \i Ired., 108. 54. A levy of an execution on Sunday is void. Bland v. Whitfield, I Jones 12 2. 55 The return ol rl mi an execution is neitheq conclusive, nor />r' ce, that there was an w nl property. Ibid. 56. \Y . mtity n[' unshuck id c >rn wa I I <>•, by a 1 II ii in piles, as it lies m shucked, r, v. Byrd. 3 Jones 397. 57. Th s qn er articles levied on I i sold in a proper manner, law, which, therefore the court cannot leave to the jury. /A/"'. 58. Where property, not belonging to th ■ d in an ex- ecution, was levied upon and sold by the officer to satisfy tha same, and bought by the plaintiff in the exi a prico sufficient to pay the debt, it is a satisfaction of the execution. 548 EXECUTION.— III.-IV.-V. although the property was recovered from the plaintiff in a suit by the owner, and though no entry of satisfaction was made on the execution or judgment. In such a case the plaintiff has a remedy against the defendant in the execution, under the act, Rev. Stat., ch. 45, sec. 22. Halcombe v. Loudermilk, 3 Jones 491. (See Rev. Code, ch. 45, sec. 27.) 59. A sale of the franchise of a corporation, under execution, by virtue of the 10th section of the 26th chapter of the Revised Code, must be predicated on a bid for the entire sum demanded in the execution, with the costs, and the only competion allowed by the act is, as to who will take the income of the corporation for the shortest length of time, Spaying the whole debt and oosts" demanded in the execution. Where, therefore, the bid was for a small fraction of the debt, though for a term far short of the limits of the franchise, it was held that the sale was void, and the purchaser got nothing. Taylor v. Jerkins, 6 Jones olli. See (Act of Assembly 14-15) (Fixtures, 2-3.) IV. FORTHCOMING BONDS TAKEN ON A LEVY. 1. In a forthcoming bond it is not necessary to insert the names of the parties, at whose instance the e: - cutions levied on the property have issued. Grady v. Tltreadgill, 13 Ired. 228. 2. No form is prescribed in the act of assembly for a forth- cbming bond, and a condition that the property shall be forth- coming, or be delivered at the time and place of sale, is suffi- cient. Ibid. 3. The obligors in a forthcoming bond are not discharged, be- cause the return day of the executions levied is before the day on which, by the terms of the condition, the property was to be delivered, though no new executions were issued. Jliid. 4. To enable a plaintiff to maintain an action on a forthcom- ing bond, it is not necessary for him to have paid the amount of the executions to the plaintiffs therein. Ibid. 5. The omission, to deliver to the surety in a forthcoming bond a descriptive list of the property levied on, does not render the Jbond void. It is a privilege of the surety, and he may waive, f>r not require it, if he think proper. Ibid. See (Bonds — Of the construction of bonds, and of their con- dition, 7— . Where A fraudulently conveyed a slave to B, and A's cred- itors afterwards caused the slave to be sold by execution, and the slave sold for more than enough to satisfy it. it was held that B, the fraudulent vendee, and not A. the fraudulent vendor, had a right to recover the balance, because, as between them, the legal title was vested in B. And an order by A on the officer for this balance in favor of B, and presented by B, does not alter acl - do not transfer to A the legal title, which iary to support the action. Ibid. '.'>. Where an equity of redemption is sold under an execution against the mortgagor, it i? only his interest that is sold, arid the estate of the mortgagee is not touched. Consequently, the sum bid on any part of it does not belongto the mortgagee; but it is first to satify the execution, and the surplus goes to the mortgagor, as the owner (if the interest sold, or to those who represent him. State v. Pool, 5 Ired., 105. 4. Where a sale of property under execution is made by a sheriff or constable, and the property brings more than the amount of the execution, it is the duty of such sheriff or consta- ble te see that the excess is paid over to the owner of the prop- erty; ami if ho fail to do so, he is liable on his official bond. State v. Reed, .3 [red., 357, S. C, (5 Ired., 80. See (Mortgage, 12.) (Sheriff — Authority of sheriffs and reme- dy for them, £2-13-14.) VI. LIEN* AND PRIORITY OF EXECUTIONS. 1. A fieri facias hinds the lands, goods and effects of the de- fendant from it- teste. Winsteadv. Winstead, 1 Hay, 243, (280.) S. ?. Ingles v. DonaUson,2 Hay., 57, (222.) 2. The sale made by a defendant, when an execution against him is in the sheriff's hands, is invalid, and the property sold may be levied upon and sold under the execution. Arnoldv. Bell, 1 Hay.. 396, (456.) S. V. foglesv. Donaldson, lbidol, (222.) 3. A ji. in. binds propi rty in m its teste, and the lien ci utili- ties, if a new execution he taken out within a year from tin- last return. Quaere. Williams v Bradley, 2 Hay.. 363, (556.) 4. Where an execution on a justice's judgment was levied on land, returned to court, and a vend. expo, ordered; and, at the same term, on a judgment against the same defendant in court, a Ji. fa. issu-d and was levied on the same land, it was held that tin.- vend. ... /in. was to be first satisfied, tin- lien having relation back to the time when the levy was made. Lash v. Gibson, 1 Murpli., 266. 5. If goods be levied on, and a return thereof be made by the 550 EXECUTION.— VI. sheriff, and the plaintiff sue out an alias fi. fa., instead of a vend, expo., the levy is discharged, and the plaintiff cannot have a dis- tringas to compel the sheriff to sell the goods. Scott v. Hill, 2 Murph, 143. 6. When the defendant in an execution sells his lands after the execution is in the sheriff's hands, the sale is void, and the purchaser under the execution gets the better title; and it seems that the execution bound from its teste, as it certainly did from itadelivery. McLean v. Upchurch, '2 Murph., 353. 7. An alias fi. fa., though on a different piece of paper, is con- sidered the same as the first fi. fa., as to the lies created. Ibid. 8. writs i '1/7. fa., bearing teste of tin:' same term, and put into the hands of the sheriff at the same time, although issued upon judgments recovered at different terms, have no preference over each other, and must be paidjoro rata, it' the money levied under them be not sufficient t<> pay all. Jonesv. Edmonds, 3 Murph., 43. 9. When a sheriff had levied an execution on certain lands, and a vend, expo., together with a special writ of fi. fa., issued afterwards on the same judgment, and was levied by the sheriff on goods, which seven days prior to that time he had seized, by virtue of a fi. fa. issued on a younger judgment, the court direct- ed the proceeds of the sale to be paid in satisfaction of the fi. fa. which first came to hand, and was first levied. Allemony V. Al- lison, 1 Hawks., 325. 10. Where the plaintiff in an execution which is levied upon property, to favor the defendant in the execution, forbears to have it sold, and yet holds on to the lien thereby created, the property may be sold under executions of a younger teste. Garter v. Sheriff of Halifax, 1 Hawks., is:;. 11. An execution binds property in the hands of the defen- dant, and all others claiming under him, from the teste. Sla raps v. Irvine, 2 Hawks., 232. 12. An execution, bearing the first teste, will he satisfied before one of a younger teste, first delivered ami levied upon property, where the property is not sold, before the execution having the first teste comes to the sheriff's hands. Green v. Johnson, 2 Hawks., 309. 13. A_//. fa. binds slaves in the hands of the defendant from its teste, and an alias fi. fa. has relation, as to its lien, to thefesfe of the first/?, fa. Gilkey v. Dickerson, 2 Hawks., 341. 14. If a fi. fa. lie levied on slaves, but no return be made, the benefit of the levy is lost, but the lien continues as much as if the levy had not been made. Ibid. 15. The lien created by an execution is continued by an alias regularly issuing thereon; and if an execution, at the instance of another plaintiff, issue after the lien of the first has com- menced, and, before execution is fully done under it, the alias come to the sheriff's hands, it shall have the preference. Bras- fold v. Whitaker, 4 Hawks., 309. EXECUTION.— VI. 551 16. A levy, made and returned, is waived by taking out an alias fi. fa. A vend, expo., with an alias fi. fa. clause, is the proper writ to keep up the lien created by the levy, and the relation of the process to the teste of the original fi. fa. Tarbo- rough v. State Bank, 2 Dev., 23. 17. An alias fi. fa., although founded on one which was re- turned "too late to hand," haw a lien on goods from the teste of the first. Ibid. 18. Where a justice of the peace finds the plea ot'pl ne admin- istravit in favor of the defendant, and issues afi. fa., which is levied on lands of which the debtor died seized, upon the return thereof to the county court, and an award of a vend, expo, on a sci. fa. against the heir, the levy of the constable is only mesne I roc ss in the suit against the heir, and creates no lien upon the land. But where the fi.fa. is against a lifting debtor, the subse- quent return is only a mode of placing the proceedings upon record, and the levy binds the land from the time it was made. Irwin v. Sloan, 2 Dev. 349. (A justice now never tries the plea of pit n ■• ftjj ' <•' tr wit, but proceeds as directed by Rev. Code, ch. 46, sec. 35.) 19. < in several writs of sci. fa. against an heir, the creditor, who first obtain^ judgment and execution, and proceeds thereon, is entitled to priority. Ibid. ■>(_). Wjhere duel of the parties is bonafide, a fi. fa. of an older/ t is entitled to the priority, and thos<% of equal teste, to an equality, in dividing the proceeds oi sales made by the sheriff, without regard + o the time of their delivery to the sheriff, pro- vided all are delivered before the return day, and before the sale. But where a plaintiff prevents his execution from being acted on, he is guilty of a legal fraud, and is postponed as to creditors, who have endeavored to enforce their judgments: and if a plaintiff instruct the sheriff not to sell under his execution, unless - ime other creditor enforces a sale, h losi s his priority. Palm r v. Clark, 2 Dev. 354. 21. J'iit tie se rules apply only as between judgment creditors^ for. as between them and the defendant, all executions have the preference. Hid. 2'J. When several successive writs of fi. fa. have been issued on the same juagment, and have hern bona li h acted on without producing satisfaction, the last of them relates to the test,- of the first, and binds the property of the defendant from* that time. But where tic* original, or any intermediate writ, never was de- livered to the sheriff, the lien is not carried back beyond the one on which the sheriff proceeded. Ibid. 23. If the plaintiff in an original fi. fa. print indulgence to the defendant, and afterwards issues an alias, this indulgence does not affect the lien of the first writ, as to the defendant or his vendee. Arriufioa v. Sledge, 2 Dev. 359. 552 EXECUTION.— VI. 24. There is no relation against the State, between executions in its favor and that of a citizen. The first 1ms a preference, unless the debtors goods have been actually sold under the exe- cution of the citizen, before that of the State is delivered. Hoke v. Henderson, 3 Dev., 12, 25. Where a purchaser of land, under an execution against a fraudulent vendor, neglected to take his deed from the sheriff- and before its delivery the fraudulent vendee entered into a re- cognizance to the State, (7 was held that, though between the State and a citizen, there is no priority obtained by the latter from the relation of his execution, when they are pursuing tin.' estate of a common debtor, yet, as the land was primarily liable to the creditor of the vendor, the prerogative of the Slate did not operate, and the sheriff's deed related to the sale. Ibid. 26. Where an original fi. fa. issued to one county and an alias issued to another, a sale by the defendant of his property situated in the latter canity, made while the first writ was in the hands of the sheriff of the other county, is valid, //unit/ v. Jasper, 3 Dev., 158. 27. In England lands are bound by the judgment upon suing out an elegit; and, therefore, all the lands owned by the defend- ant at its rendition are liable for its satisfaction. But in this State, lands are bound by the fi. fa. only from its teste, andsales after that time, of land si f uated where the writ does not run, are valid. Ibid. 28. It seems that an elegit will not, in this State, divest the title of a purchaser under a //. fa. issuing upon a junior judgment. Ricks v. Blount, 4 Dev. 12-s. 29. In this State, the first execution, finally acted on, protects both the purchaser under it, and the plaintiff in it. Ibid. 30. In this State, tin: rules of the common law. as to the lien of a fi. fa. upon chattels, have been extended to land, when sought to be subjected by that writ. And after the sale of land under one fi. fa., the lien of another is regarded only in ques- tions as to the application of the money raised by the sheriff. Iu all cases the title of the purchaser is protected. And he is protected, as well when the writ is against the real assets, in the hands of the heir, as where the defendant in it is the original debtor. Ibid. 31. When several executions, issiiing from different com po- tent courts, are in the hands of different officers, then, to pre- vent conflicts, if the officer holding the junor execution seizes property by virtue of it, the property so seized is not subject to the execution in the hands of the other officer, although first, tested; and, consequently, a purchaser under the junior execu- tion is, in such case, protected against the execution of a prior teste. Jones v. Judkins, 4 Dev. and Bat., 454. 32. At common law, the goods of a party, against whom a fi EXECUTION.— VI. 555 fa. issued, were bound from the teste of the writ, so as to pre- vent his selling or assigning- them. But, subject to this restric- tion, the property of the goods is not altered, but continues in the defendant until the execution is executed. If, therefore, the property be levied on and sold under a junior execution, the pur :haser gets a good title, and the party, having the first ex- ecution, cannot seize them by virtue of his writ first tested; but be may have his remedy against the sheriff, whose duty it was cute that writ first, which was first tested. Ibid. I;;-;. If the sheriff have only levied under the younger execu- ■ 1 1 « L before Bale, an older execution in point of teste came to his hands, he may, and ought, to apply the property to the satisfaction oi the execution bearing the first teste. Ibid. '.'A. A sheriff who, after seizing goods, leaves them en the premises of the debtor, not separated from his other goods, and tor the use of the debtor or his family as before the seizure, ■ prima facie loses his property in them, upon the grounds of presumptive fraud or abandonment; and another officer may- seize and sell them, unless the delay to remove them be but for a reasonable time, and then be accounted for by the state of the property, as. for example, that it was a growing crop, or an ar- ticle in the course of being manufactured, or the like. Roberts v. Scales, 1 In d., 88. o5. A judgment of a court, rendered on a day of the term subsequent to the day on which a conveyance of his property has been made by the defendant in the action, has relation back to the first day of the term, and an execution issuing thereon, and lested of the same term, will overreach such conveyance. ffltdey v. Smith, 2 [red., 225. 36. Such a judgment, though voluntarily confessed by a de- fendant to a plaintiff, who had knowledge of the prior convey- ance, is not on that account fraudulent as against him who claims under the conveyance. On the contrary, the conveyance is considered in law fradulenf as against the judgment. Ibid. ;17. Where an officer, who has levied an execution on personal properl v, voluntarily permits the defendant in the execution to regain possession of the property, his lien is so far gone, that a levy nf a subsequent execution by another officer on the property, soiu pi n of the defendant, shall be preferred. Wilson v. Hensley, 4 [red., 66. 3o. An execution, under which an officer takes actual posses sion of personal property levied on, has precedence over one previously levied on the same property, but under which no actual possession has been taken and retained by the officer levying it. Barham v. Masse^ 5 Ired.. 192. 39. An officer, who levies on personal property, and leaves it in possession of the defendant in the execution, only loses his 554 EXECUTION —VI. lien as against other executions, under -which the property is seized and taken in possession: therefore, where A, a constable in ( (range county, levied on personal property, and left it in pos- session of the defendant in the execution, and B, a constable in another county, with the assent of the defendant, but without any legal process in Orange, removed' the property to his own county, and there sold it under executions issuing in that county, it was held that A was entitled to recover from B, in an action of trover. Mangum v. Hamlet, 8 Ired., 44. 40. A fi. fa. binds property from its teste, and this lien is con- tinued, if regular alias writs of fi. fa. are issued. Therefore, where a fi. fa. issued against one who was a joint owner of slaves with others, and afterwards, upon the petition of all the joint owners, the slaves were directed by a court of competent juris- diction, to 1"' sol 1 for a division, and under that order were sold, the lien of the sheriff, actingunder the original and alias fi. fas., was not divested, but he had a right still to sell the undivided interest of the defendant in his executions. Harding v. Spivey, 8 Ired., 63. 41. It was never meant by the act, directing the mode of pro- ceeding for the partion of slaves, to interfere with the just rights of persons, nol parties to the proceeding for partition, whether arising upon a claim of property by adverse title, or upon the lien of a creditor's execution. Ibid. (See Rev. Code, eh. ;>. See (Judgment— Of the effect of a judgment, 9-10-11-15-17.) (Landlord and Tenant, 5.) (Sheriff — Authority of sBeriffs and remedy for them, 11.) (Insolvent Debtors — Of the priority of the claim of the United States and the State.) EXECUTION— VII. 555 VII. OF VOID AND IRREGULAR EXECUTIONS, AND PROCEEDINGS TO SET ASIDE EXECUTIONS 1. Where, after an issne between the administrator and heir as tu assets, which was found in favor of the former, an execu- tion was issued commanding the sheriff to levy on and sell the lands in the hands of the administrator, and the sheriff levied on and sold the lands in the possession of the heir, it was In)' 1 that there was no judgment to warrant the execution, and the sale was therefore, void and no title passed to the purchaser. Dud- ley v. JStrange, 2 Hay., 12, (160.) 2. If an execution issue, having the costs endorsed thereon in abbreviate 1 words, it is illegal only as to the costs endorsed; and the judgment must be levied. Tagert v. Hill, 2 Hay., 81, (249.) S. P.. Wingate v. Galloway, 3 Hawks, 6. 3. An execution, issued more than a year and a day after the judgment, is irregular, though there were an entry that it should be stayed till further order; but if there had been a t!i> for a time, certain, execution might have been taken oat after that time without a soi. fa. Hester v. Burton, 2 liny., 136, (305.) 4. A fi. fa. issued after the death of the plaintiff, and when he had no representative in court, must be se ! having issued erroneously. Wingatev. Gibson, 1 Murph., 492. 5. An execution, issuing after a year and a day. is only voida- ble at th- instance of the party against whom it issues. Oxky v. Mide, 3 Murph., 250. li. An execution, which issues irpon a judgment more than a year and a day old, is erroneous only. Weaver v. Gryer, 1 Dev.. 337. 7. A fi. fa. upon a dormant judgment is not void, and the sheriff is bound to obey it. Dawson v. Shepherd, 4 Dev., 497. 8. Where the execution, under which the plaintiff claimed. commanded the sheriff to levy a certain sum, which the State Bad recovered of the defendant, for costs and charges, ami on the execution was endorsed a bill of costs containing officers' fees, and witnesses' dues, but without specifying whether they were costs expended by the Mate, or were the costs of the defendant, ami the only record of a judgment, produced in support of the execution, merely showed that the defendant hail been indict- ed and acquitted, it tens held that there ought to have been a special judgment in favor of the officers of the court, and the de- v fendant's witnesses, and an execution issued thereon and con- formable thereto, and that the court could not presume from the record produced that there had been such a special judgment, and then permit the plaintiff by parol evidence to trim and shape the execution offered, so as to fit such presumed judgment. King v. Feathersto >, 4 Dev. and Bat., 126. 9. When a defendant is acquitted on a criminal charge, he is 556 EXECUTION.— VII. entitled to the common law judgment, that he gx> without day as to the indictment, but at the foot of such judgment, there should be a judgment, under the statute, againstthe defendant, in favor of the officers and the defendant's witnesses for his costs due to them, to be taxed by the clerk, upon which he should issue execution, not for the State, but in favor of the said officers and witnesses against the defendant. Ibid. (See Rev. Code, ch. 102, see. 24.) 10. Where an execution on a judgment is returned satisfied, the judgment is extinguished; and another execution cannot be issued, as, for instance, for attendance dues for a witness omit- ted in the first execution, until the return on the first execution is set aside or corn ei, d, or an order of the court, in the nature of a further judgment, is rendered. Poorx. Deaver, 1 [red, 391. 11. A vend. expo, to sell lands, tested after the defendantih the execution had died, without any sci. fa. against the heirs, is null and void. JSanvuel v. Zachery, 4 Ired., 377. 12. An execution, in the name of "William Barnes, guardian," is not supported by a judgment in the name of " Charity, Pene- lope and Sarah Newsom by their guardian, William Barnes," and is therefore void. Neiosom v. Newsom, 4 Ired., 381. 13. A suit and judgment, in which the same person is both plaintiff and defendant, or one of the plaintiffs, and one of the defendants, is an absurdity, and cannot have any legal efficiency. Thus, where a father died, seized of a tract of land, and leaving eleven children his heirs at law: and three of these children recovered a judgment against the administrator of their father, the plea of Jutly administered having been found in his favor, and they then issued a sci. fa. against themselves, and the other heirs to subject the laud, and upon this sci- fa. a judgment was entered and an execution issued, under which the land was sold, it, was held that it was right for the court, upon motion, to vacate the judgment, and setaside the execution, which, of course, ni:ide the sale of no effect; but the court had no right to require tne purchaser, who was the assignee of the judgment, to pay, to the defendants in the execution, the amount for winch the land sold; the remedy of the creditor's heirs, in a case like this, being in equity. Ibid. 14. When an execution, issued by a justice, is returned to the county court levied on land, no execution against the goods and chattels of the defendant can issue from that court, unless a judg- ment has, on the application of the plaintiff, I ieen there previously rendered for the amount of the recovery before the justice; and if such execution be issued, it is void. Hamilton v. Henry, 5 Ired, 218. 15. Where, after a judgment, a memorandum was made on the docket by the parties, that execution should not issue before a certain day, as this forms no part of the judgment, an execu- EXECUTION.— VH. 557 tion issued before the day can only be complained of by the parties; but as to all other persons, the execution is not even voidable. Cody v. Quinn, 6 lred., 191. 10. An execution upon a dormant judgment is not void, but only irregular; and that is an objection, which can only be taken by the defendant in the execution, and no1 by the officer to whoiii it is directed, who is bound to execute it. State v. Morgan, 7 lred., 387. 17. A judgment confesoed by a third person, to satisfy a fine and costs imposed on one convicted of an offence, is regular and proper. But an execution upon such judgment can only issue agaihsl the person who confessed it. and not against him jointly with the person against whom the fine and costs were awarded; and an execution issuing against them jointly is void, and a sale under if conveys no title to the purchaser. Fleming v. Dayton, 8 lred.. 453. 18. Where a vend. expo, has issued, and the land mentioned in it has In en si Id, another vend, i , o. cannot issue, but it it do, it is invalid, and the purchaser under it acquires no title. The proper execution, when a balance of the judgment is unpaid, is a.fi./a. Smith v. Fore, 1<» lred.. .",7. 19. A court martial is a. court of special and limited jurisdic- tion. It must or rized agreeably to law. and this must be shown distinctly by every one, who seeks to enforce its sentence, or justify action under its precepts; therefore, where a company court martial, as is required by our law. must he composed of at least two commissioned officers, and it did not appear, in this case, that more than one commissioned officer sat in the court. au execution issued by it washeldto be void, and not to afford anv justification to an officer acting under it. Bdlv. Tody, 11 I ml'., 605. 20. An execution, to which a sheriff is a party, either plaintiff or defendant, directed to such sheriff, is null and void; and the sheriff is not bound to make any return thereon, and conse- quently cannot be amerced for neglecting or refusing to do so. Bowen v. Jones, b"> lred., 25. 21. Where land has been levied on and sold under a justice's execution, and has brought less than the debt in the execution, it cannot be again levied on and sold under a judgment of the court, entered for the remainder of the debt, under the act, Rev. Stat. oh. 4.">. sec. 9, although the former owner, the debtor, is re- siding on the land, and the suit is brought against him, he re- maining there, as the tenant of the vendee of the purchaser under the first execution. Smith v. Fore, 1 Jones, 488. (See Rev. Code, eh. 45, sec. 13.) 22. It is erroneous to set aside an execution issued on a dor- mant judgment, where property has been purchased under it. Murphy v. Wood, 2 Jones, 63. •"558 EXECUTION.— VII.-VIII. 23. A plaintiff cannot take out two writs of fi fa. on the same .judgment, at the same time, without the special leave of the court. Adamsv. Smallwood, 8 Jones, 258. 24. Where two writs of fi. fa. had been issued at the same time, to two different counties, on the same judgment, and one of them had been satisfied before the return term, it was held that the court might, at the instance of the plaintiff, set aside the second execution at the return term, and vacate a sale made under it. Ibid. Sec ( Executors and Administrators — Of their liability to cred- itors, &c, 75.) VIII. PURCHASER AT AN EXECUTIVE SALE. 1. He, who claims as a purchaser at an execution sale, is bound to produce the judgment as well as the execution. Hargetv. Blackshear, 'Fay.', 107, (62.) S. P.. Anonymous, 2 liny., .so, (249.) Bryan v. Broton, 2Murph., 343. Whitehurstv. Banks, Ibid, 346. Dobsony Murphy, 1 Dev. and Bat, 586. (Altered by statute, See Rev. Code, eh. 44, sec. 13. Rutherford v. Rabum, 10 [red., 141.) 2. A purchaser at sheriff's sale is not bound to look further than to see, that he is an officer who sells, and that lie is empow- ered to do so by execution, lie is not affected l>v the irregular conduct of the sheriff Blount v. Mitchell, Tay., 131, (80.) S. C, 2 Hay., 65, (233.) S. P., Brodie v. Seagraves, Ilnd, 144. S. C, 2 Hay, 70, (237.) Jonesv. Fulgham, 2 Murph., 364. 3. When one purchases at an execution sale a quantity of light wood, set as a tar kiln, or any other bulky article, too cum- brous for immediate removal, as corn, fodder, hay, &c, he has a right, unless forbidden by the owner of the land, to go shortly alter the sale and remove it. But if he b< forbidden by the own- er of the land, he cannot lawfully go to take away the article, though hemav bring trover for it. Nicholsv. Newsom, 2-Muiph., 302, S C, 1 Car. L. R., 227, (17.) 4. Plaintiff claimed the slave in question mid r a fraudulent deed from the ownet who had lefl the State. The defendant, being a creditor of the grantor, sued ou1 an attachment, under which the slave was levied upon and afterwards sold, when this defendant became the purchaser; and his title was held to bo good, because he was both a creditor and purchaser. Spence v. Yellowly, N. C. Term, R. 114. (551.) 5. Fraud and combination between a sheriff and purchaser will lender the sale void, whether regularly or irregularly made. Jones v. Fulqham, 2 Murph.. 364. (!. If an officer sell under an execution authorizing him to sell, although, in his deed to the purchaser, he makes an erro- EXECUTION.— VIII. 559 "neous recital of the power under which he sells, yet his deed is good and passes the title. Hatton v. Deto, \> Murph., 260. 7. Whatever irregularity there may be in a judgment, if it be the act of a court of competent jurisdiction, unreversed and in force when a sale is made by execution under it, the purchaser at such sale is safe, even though the judgment be subsequently rfrversi d or se1 aside. The same principal applies 1" an error in the execution, th i regularity of which cannot be questioned in an action against a purchaser at a sheriff's sale. Oxley v. Male, 3 Murph., 250. S. P., Smith v Kelley, Ibid, 507. 8. The return of a sheriff on an execution, that he has sold the land to A, will not prevent the title of B, to whom he has execu- ted the deed, from being good. Smith v. Kelley, 3 Murph., 507. 9. The law pern, its one person to bid off property at a sheriffs sale, and relinquish the I id to another, to whom the deed may be executed. Ibid. 10. When a return on an exe :ution against lands is signed by tin- deputy sheriff, but the deed to the purchaser is executed by the sheriff, it is a ratification of the act ofthe deputy; and the ti- tle cannot be impaired by the return on the execution. In/tier v. St me, 1 Hawks. 329. 11. Where, under an execution, lands were sold by a sheriff with the debtor's consent, without levy or advertisement, and bid ■ (Fby A, who,, by \r.i\n\, assigned his bid to B, to whom the sheriff executed a deed; it was held that the act ofthe sheriff was official and passed the title to B. ger v. Kennedy, 1 Dev., 1 12. A purchaser at an execution s ign his I id. and a y the sheriff to the i I th title in him. Bloi ntv. Dncis, 2 Dev., 19. 13. An executor can ; b tatoi at an execution sale. 14. Under the act of 1807, where the land of a testator was sold under a judgment - ich, and the :er was evicted by the heir, u thai h could not i base money from the executi r, i ainsf whom Sandi rs v. -In v.. 193. (S' • lev. < !ode, eh. 45, i ec. -1.) 15. A sheriff 's deed vests the tith ofthe land in the pur- chaser from the time of the sale. David io 3 Dev., 3, s. P., Picket v. Picket, Tbid., 6 d Hid, 12. 16. Ii a sheriff have several writs againsl tin same defendant, and do not sell under one of them, that writ cannot aid the title of a purchaser under the other* although =1 iej arising from the sale be applied to its satisfaction. Seaw* 11 v. Cape Fear Bank, 3 Dev., 279. 17. A purchaser at a sheriff's sale, under execution, is not re- 560 EXECUTION.— VIII. quired to see that the aheriffhas complied with his duty, in mak- ing it. Mordecai v. Speight, 3 Dev., 428. 18. Generally, the execution of powers, and the performance of official duties, must literally conform to the terms prescribed. But the observance of form by an officer is not required to give effect to his acts, when it will defeat the primary object of the Legislature; as, in execution sales the object being to enhance the price, for the encouragement of bidders, they are not affec- ted by the prior acts of the sheriff; unless the irregularity be such as must be known to, or is procured by the purchaser, as if he buy at private sale. Avery v. Rose, 1 Dev., 549. 19. An allegation of fraud, againsl a purchaser at an execu- tion sale, will not be heard from a stranger to the execution. Harry v. Graham, 1 Dev. and Bat., 76. 20. The question of fraud, in preventing competition at an execution sale, cannot arise between the alleged fraudulent pur- chaser at such sale, and a claimant under a prior voluntary con- veyance from the debtor. Jo, us x. Young, I Dev. and Bat., 352. 21. If the defendant in an execution places money in the hands of another person, for the purpose of purchasing his own property, at a sale under the execution, with intent to defraud ins creditors, and that person buys it, and takes a deed from the sheriff, tin,' defendant is still the owner of it, and another of his judgment creditors may. at law, subject it to the satisfaction of his debts, although the fust execution was for a bona fide debt, and the sheritf. who sold under it, was not a party to the fraudulent contrivance of the debtor. Dobson v. Erwin, 1 Dev. and Bat., 569. 22. A sheriff's deed, fairly executed at any time after a sale under execution, has relation to the sale, and operates to pass title from that time. And if every thine,- else be regular and fair, the law will raise no presumption of fraud against the deed, merely because it may lie antedated to the time of the sale. JDobson v. Murphey, 1 Dev. and Bat., 586. 23. If a sheriff's deed do not evidence an actual sale under an execution, it cannot be connected with the execution. But if there were an execution, giving the sheriff power to sell, and if, under that execution, a, fair sale be made by authority of the sheritf, and the purpose of the deed is to authenticate that trans- action, then it operates from the sale, either as title or color of title, as the case may lie. Ibid. 24. One, who bids oil land at an execution sale, may relinquish his bid to another, either in writing or by parol, and the sheriff 's deed to the latter will be valid. Festerrnan v. P.oe, 2 Dev. and Bat., 103. 25. A sheriff's deed relates to the time of the sale, and operates from that time against any subsequent transfer, whether made EXECUTION.— VIII. 561 by the party, or by the sheriff under an execution against the party. Ibid. 26. A bona fide purchaser of land at an execution sale, does not extinguish his title at law, by consenting that the same may be levied upon and sold under another execution, although it might be a fraud upon the person in whose favor he gave such consent, which would sustain a personal action at law, or be the ground of relief in equity. Ibid. 27. It seems that a purchaser under execution, who advances in part his own money, and in part that of the defendant in the execution, may acquire a sufficient title to stand asa security for his own money advanced, unless he intended to deceive the creditors, by claiming the purchase as an absolute one. Ibid. 28. Upon an execution against A and 15, if the sheriff levy upon and sell a certain slave, who was in the possession of A, as the absolute property of A, and. in the levy and bill of sale, de- scribes the -lave as the property of A, the interest of B in such slave will not pass by such sale, though, in fact, A had only a limited interest in the slave, and B was entitled to the absolute property in remainder. Knight v. Leake, 2 Dev. and Bat., 133. 29. The deed of a sheriff professes to transfer property, in exe- cution of an authority confided to him by law, and is not to be construed with the same favor to the purchaser, as the deed of an in>li\ i : ial, disposing of things over which he claims uncon- trolled dominion. Nothing can pass by the sheriff's deed, but that which be has levied upon, and which was known at the time of the sale as the subject matter thereof. Ibid. .'in. The purchaser, at an execution sale, buys the interest ot the defendant in the execution, and cannot object,.when the price is demanded, that the goods belonged to himself, or to a third person. Islay v. Stewart, 4 Dev. ami bat.. 160. 31. If a sheriff sell land under an execution authorizing him to sell, his deed is good and passes the title, although in his deed to the purchaser he makes an erroneous recital of the power under which he sells. And that be' sold under a particular ex- ecution must be presumed, until the contrary be shown, if he had that execution in bis bands at the time, and sold the lands therebv directed to be sold. Huggina v. Ketchum, 4 Dev. and Bat,, 44. '.VI. A description in a sheriff's deed of "all the right, title and estate, which the said .1. \\ .. (the defendant) has in the county of Onslow, on Qu d's cr el;, being all the land which the said J. W. owned on said creek, " though far from being so particular as could be wished in a shei iff's deed, is not, it seems. bo indefinite as to make the deed void on that account. Ibid. 33. If a party claimed under a sheriff's sale, made by virtue of several distinct judgments and executions, and the judge in- structed the jurv that if the executions were iu the hands of 36 562 EXECUTION.— VIII. the sheriff at the time of the sale, he had authority to sell, and the jury thereupon found a general verdict for the plaintiff, and it afterwards appear that only one of the executions was suffi- cient to authorize the sale, but whether that authority extended to all the lands described in the sheriff's deed and claimed by the party, or to a part of them only, or whether it extended to them at all, is not shown, a new trial must be granted. Ibid. 34. Though a judgment be erroneous, or obtained irregularly and against the course of the court, yet, while it remains unre- versed, it warrants an execution conforming thereto, and up- holds the title of a purchaser at execution sale. But if a judg-* inent be rendered by a court having no jurisdiction of the sub- ject matter, or against a person who has not had notice to defend his right, or if it order what the court has not the pow- er to order, it is null and void, and an execution issuing thereon will not protect a purchaser. Jennings v. Stafford, 1 Ired, 404. 35. Where a judgment is rendered upon a former judgment, and execution issued thereon, it is not necessary for a pur- chaser, at a sale under this execution, to produce the first judg- ment in support of his title. Ibid. 36. Where a sheriff, or other officer, sells under a valid execu- tion, it is no objection to the title of the purchaser, that, in his deed of conveyance, he misrecites his execution. Cherry v. Wbolard, 1 Ired., 438. 37. A purchaser at an execution sal' acquires no other or fur- ther title, than the defendant in the execution had, at the time of the sale. Fh/nuv. Williams, 1 Ired., 509. 38. A fi. fa. was issued returnable to January term, 1821, of a county court, and was returned to that term. The same paper was issued by the clerk endorsed "alias to March term, 1821," "alias to July term, 1821," ''alias to October term, 1821," with his official signature, it was Jidd that a sale by the sheriff under the paper, between the July and October terms, was a nullity, and the purchaser acquired no title. Love v. Gates, - Ired., 14. 39. The purchaser, at an execution sale, must show a judg- ment, and an execution corresponding thereto; andan execution;, at the instance of B, is not warranted by a judgment in favor of A. Bhnchard v. Blanchard, 3 Ired., 105. (Altered. .See Rev. Code, ch. 44, sec. b">. ) 40. A judgment of the county court, upon a justice's execution returned levied on land, under which judgment there are an ex- ecution and sale of the land, precludes all collateral enquiry in- to the regularity of the previous proceedings. Therefore, a pur- chaser, under such judgment and execution, will acquire a valid title to the land, although the levy of the justice's execution may have been by one not legally authorized to act as an officer. Burke v, Elliott, 4 Ired., 355. EXECUTION.— VIII. 563 41. Whatever relation to the time of the sale a conveyance From the sheriff may have, for some purposes, it cannot be used to prove title, in an action brought before the deed was made. Dan's v. Evans, 5 Ired., 525. 42. A purchaser, at a sheriffs sale, of an equity of redemption, may recover in an action of ejectment against the mortgagor who was in possession. Ibid. 43. The mortgagee, who is subsequently permitted to come in and defend the action, can make no defence, which the original defendant could not make, and is, therefore, like him, estopped from denying the plaintiff's right to recover. Ibid. 44. The act of 1812 makes the equity of redemption, when sold under execution, a legal interest to the extent, at least, of en- forcing it by a recovery fri >m the- mi irtgagor himself. I bid. (See Rev. Code, eh. 45, sec. 5.) 4."). Where a judgment is for the penalty of a bond, to be dis- charged on the payment of certain assessed damages, ami the execution, issuing thereon, recites the judgment as for the dam- age only, it is a fatal variance, and any sale under the execu- tion is void. Walker v. Marshall, 7 Ired., 1. (Altered. See Rev. Code, ch. 44, sec. 13.) 4(1. Where, in the county court, the suit was against three, and on an appeal to the superior court, the judgment was on- ly against one. without its appearing on the record what had been done with the others; it urns heldth&t, although the judg- ment in the superior court might have been erroneous or irregu- lar, yet it was good until reversed, and that a purchaser acquired a good title under an execution issuing on it. Carter v. S 7 Ired.. 14. 47. A good execution in the sheriff's hands sustains a sale under it. though wrongly recited, or not recited in the sheriff's deed. Ibid. 48. A purchaser of land at a sheriff's sale, under execution, is only bound to show a judgment, execution and sheriff's deed. He is not bound to show a levy by the sheriff His title is com- plete as against the defendant in the execution. M$Entire v. Durham, 7 Ired., 151. 49. In order to support the title of a purchaser at an execution sale, he must show a judgment, execution, sale and conveyance to him by the officer, by whom the sale purports to have been made; and the deed of the sheriff reciting a judgment, execu- tion ami sale, is not evidence of those facts. Owen v. 'Barksdale, 8 Ired., 81. 50. Where the sheriff's deed is an ancient one. and possession has been held under it, a presumption of a sale may arise from the contents of the deed. Ibid. 51. Where a judgment and execution from a justice were for a certain sum and costs, and, for want of goods and chattels, the 564 EXECUTION.— VIII. execution was levied on lands, and returned, as by law directed, to the county court, and an order for a vend. expo, to issue, &c, and the vend. expo, directed the sheriff to levy and sell, for the amount returned by the justice, and also for interest on the jus- tice's judgment, it was hill that the execution did nut correspond with the judgment, and was not, therefore; sufficient to sustain the title of the purchaser at the execution sale. Collais v. Me- Leod, 8 Ired., 221. (Altered, see Rev. Code, ch. 4!. sec. 13.) 52. Where a judgment is recovered by a. sheriff, and the exe- cution thereon is issued to him, any sale made by him, under such execution, is absolutely void, and vests no title in the purchaser. Ibid. 53. Although land alone is mentioned in the act of 1848, ch. 53, curing the effect of a variance between the judgment and execution, it seems to be the unavoidable interpretation of it, that sales of personalty, under execution, must, in like manner, be upheld, as being within the mischief. Rutherford v. liabiirn. 10 lied., 144. (See Rev. Code, eh. 44. see. 13.) 54. Where a party claims as purchaser under an execution, issuing from a court of equity, and alleges that the other party, clainfed under a dee; 1 , in fraud of the execution creditor, he must show the decree of the court as well as die execution, and, to make the decree evidence, it is requisite to have the bill and answer, and so much of the pleadings and orders as wouldshow that the decree was pronounced in a cause properly constituted between parties. Williamson v. Bedford, 10 Ired., I 55. A purchaser of land at an execution sale gets a good title,. although tlie sale was made on a Tuesday or Wednesday of the week, on the Monday of which the writ was returnable, but was not returned. Brooks v. Matdiff, 11 Ired., 321. 56. Payment to the sheriff discharges an execution, and a sub- sequent sale of property, under such execution, is void, and con- veys no title to the purchaser. MurreU v. Roberts, 11 Ired., 424. 57. The title' to land, sold under execution, vests in him to whom the officer makes the deed. Garson v. S/nnff, 12 Ired., 369. 58. A deed made by a sheriff or coroner, under a sale by exe- cution, passes the title, notwithstanding a third person may, at the time, lie in the, adverse possession of the land. Ibid. 59. In claiming land under an execution sale, the enquiry is, whether the sheriff has sold tin.' particular laud; and his return is to be taken as true, until the contrary appears. Jackson v. Jackson, 13 Ired., 159. 60. Where the sheriff returned, "levied on 265 acres of land, lying, &C, whereon Iredell Jackson now lives," and in his deed conveyed two tracts, one of 100 acres, ami one of 165, not con- tiguous, but separated by another small tract, and it appeared that the defendant in the execution lived on one tract, and cul- EXECUTION.— Vin. 565 tivated the whole as one plantation, it was held, that the levy and conveyance by the sheriff were not too indefinite or inconsis- tent, and that in such case, parol evidence of the identity of the land was admissible. Ibid. 61. It is not necessary for a purchaser, at an execution sale, to produce a judgment corresponding exactly with the execu- tion, nor, it seems, any judgment at all. Gre< n v. CtiJc. 13 1ml. 425. 62. After a debtor's land has been sold under execution for the payment oi his debts, he is only a tenant at sufferance, a mere occupant, unless he is able to snow that, for some cause or other, the sheriff's sale did nut pass his estate. Hence, his pos- session is not adverse, so as to prevent the purchaser from trans- ferring the lega] estate, after he has obtained a deed from the sheriff II ipson, Busb., 325. 63. Where a sheriff sells lands under several executions, and the sale is rightful under one, th< >ugh unlawful under the others, the purchaser acquires a good title. Bailey v. Morgan, Busb., 3a2. 64. A sheriff, having in his hands several executions against A, levied upon land and other property fur their satisfaction. One of these executions had been a- igned, to indemnity the sheriff and two others against loss as sureties of A, and it was agreed between the sheriff and his co-sureties, that one of them should bid off the property, if it should sell low, for their com- mon benefit, and, under this agreement, the land was bought: and it was hill that the agreement was not fraudulent, or other- wise unlawful, and did not vitiate the sale. Ibid. 65. A variance between the judgment and execution is cured by the act of 1848. Marshall v. Fisher, 1 Jones, 111. (See Rev. Code, eh. 44. see. 13.) 66. The purchaser, at an execution sale, of an interest result- ing to a debtor under a deed of trust, does not acquire the legal ■estate by the sheriff's deed. And rson v. Hdlomart, 1 Jones, 169. 67. Where there is no collusion between the sheriff and a pur- chaser at an execution sale, the purchaser, though he be the plaintiff in the execution, will acquire the legal title by the sheriff's deed, notwithstanding he may have been guilty of fraudulent conduct in suppressing competition, whereby he ob- tained the property at an under value. In such case, the de- fendant s claim to relief must be in equity. Hill v. Whitfield, 3 Jones, 120. 68. The purchaser of land under execution, if he be not the plaintiff in the execution, need not show any judgment. Har- din v. Cheek, 3 Jones, 135. 69. The purchaser of land, at an execution sale, gets all the estate, right and interest of the defendant in the execution, even the legal estate which he may hold as trustee for another. Giles v. Calmer, 4 Jones, 386. 566 EXECUTION.— VIII. 70. One who purchased a trust estate, under execution, prior to the act of 1812, only got the possession of the defendant in the execution, and the equitable right to be substituted to the rights of the creditor, whose debt he had paid. Taylor v. Gooch, 4 Jones, 4.'>ii. 71. A purchaser at a sheriff's sale, under execution, is not bound to show that the sheriff sold on the proper day of the week, nor can his purchase be defeated by any irregularity of that kind. Eeid v. Largent, 4 Jones, 4">4. 72. A purchaser of land at a sheriff's sale, under a vend, expo., is not bound to show any thing in relation to the disposition of personal chattels, levied on under the fi. fa. Chasteen v. Phil- lips, 4 Jones 459. 73. Only such interest, as the defendant in the execution has in the property levied on and sold, whether real or personal, passes by the sheriff's sale. Homedey v. Hague, 4 Jones 481. 74. A constable, who sold goods under execution, and cried them off to one, to whom he gave time for payment, but retain- ed possession of them, cannot recover against the purchaser for goods sold and delivered. WUson v. Oswalt, 6 -Jones 566. 75. In an action by a constable, against a person for failing to comply with an execution sale, by paying for the goods bid off, where some of the executions under which he sold were valid, and others not so, but goods enough consisting of several different articles were sold to satisfy all of them ; it ivas held to be error to instruct the jury, that, if any one of the executions were good, it would sustain the sale of all t lie goods. Ibid. 76. If one purchases under a fi. fa., it seems that his purchase will be protected from the effects of a judgment and execution, in an attachment levied prior to the teste of the fi. fa., under which his purchase was made. Quaere. McMillan v. Parsons,, 7 Jones 163. 77. Where a purchaser under execution takes immediate pos- session after the sale, the sheriff's deed, executed to him after- wards, will relate to the time of the sale, and annex the title to his possession, so as to enable him to defend it against a, transfer of the land subsequent to the sale. Richardson v. Thornton, 7 Jones 458. 78. The purchase by a sheriff or constable, at his own sale, un- der execution, is void, and the case is not altered by the fact that the sale is conducted by another officer, who is acting in concert and joint interest with him. Bobins&n v. Clark, 7 Jones 562. See (Ejectment — Ot the title necessary to support the action, 20-25-34-41-56-57-61-66-67-<;.S-i;!1)— (Ejectment— of the de- fence and herein of the consent rule, 21-22-24-25-27-42) — (Estop- pel — By deed, 8-31 ) — Estoppel — By matterotherthanbyrecordor deed, 28-37-38) — (Evidence — Copies of deeds and other instru- EXECUTION.— VIII.-IX. 567 merits, when admitted and how proved, 25) — (Evidence — Pro- ceeding's in other suits, when and how far evidence, 18-33-34-35- 36) — (Execution — Lien and priority of executions, 28-29-30-31- 32) — (Execution — What may be levied on and sold under execu- te in, 29) — ( Execution — Of void and irregular executions, and pro- ceedings to set aside executions, 1 -13-17-18-21-22-24) — (Execu- tors and Administrators — Of their liability to creditors, &c, 109- 110) — (Fraud — Conveyances fraudulent as to subsequent purchas- ers, 13)-(Heirs--21-23-24-29-31-32-43)— (Interest, 19)— (Judg- ment — Of the effect of a judgment, 2) — (Judgment — Of irreg- ular, void and erroneous judgments, 16) — (Limitation — As to real estate, 13) — (Mortgage — 4) — (Partnership — Of the sale and purchase of partnership effects, 1-3-6) — (Privies) — (Sheriff — Sales by Sheriffs) — (Trespass — Of trespass quart clausum /regit, 30-31)- (Warranty— Of real estate, 17.) JX. OF THE CAPIAS AD SATISFACIENDUM. 1. If a defendant be arrested on a ca. sa. and discharged by the plaintiff's consent, the plaintiff cannot have a new execra- tion against him; but if he be arrested and escape by the neg- lect or permission of the sheriff, the plaintiff may have a new execution, though the sheriff could not arrest or hold him in custody on the old writ. Ballard v. Averitt, Tay., 69 (48) S. C, 2 Hay.', 17 (169.) 2. A writ commanding "to take the body, &., until the sheriff make a sum of money, and have that money in court on the re- turn dav" is not a ca. sa., Imt a novelty unknown to the law. Firiky v. Smith, 4 Dev., 95. 3. A precept directed to the " sheriff or jailor " of a county and commanding him "to receive the body of the defendant, into the common jail of the county, and him safely keep within the walls of the said jail, until he shall render" to the plaintiff "the amount of the judgment," &c, is not a ca, sa.. but a mit- Mmus, and without a proper ca. sa. will not authorize the de- tention of the defendant, nor make the sheriff liable for his es- cape. Walker v. Pick, 2 Dev. and Bat., 99. 4. A precept from a single justice, endorsed on a justice's judgment and directed to the sheriff, commanding him "to take the body " of 1 he defendant, " and him safely keep, until he is dis- charged as the law directs," though an informal, yet is a valid ca. sa., and will justify the sin-riff in making an arrest under it. State v. Beeves, 4 Oev. and Bat., 187. 5. If a ca. sa. and a fi. fa. are both issued, and after the sher- iff has levied the fi. fei., and while he has the property undis- posed of, he executes the ca. sa., the court, upon the application of the debtor, will set aside the ca. sa., and discharge him from custody. Wheeler v. Bouchelle, 5 Ired., 584. 568 EXECUTION— IX.-X. 6. In order to entitle a plaintiff to sue out a writ of ca. sa., un- der the act of 1844, it is sufficient for him to make affidavit, "that the defendant had fraudulently concealed his money, property or effects, to defeat his debt," without further setting forth, that the defendant had no property which could be reached by a fi. fa- Brown v. Walk; , (556.) 2. Where a defendant, once in execution on a ca. .?"., obtains his liberty by the assent of the plaintiff, he cannot be retaken; and, if he be one of the defendants in a suit, the plaintiff can neither retake him nor any of the other defendants. Bryan v. Simonton, 1 Hawks, 51. 3. A seizure of goods upon an execution is a constructive pay- ment, only where, unless so considered an injury will occur, as where the sheriff has seized, but will not sell. But in all cases, where the defendant has got back the goods, with or without the consent of the sheriff, the seizure is no payment, and a new execution may issue, and this whether there be several defen- dants, or only one. In the matter of King, 2 Dev., 341. 4. Where a sheriff, having an execution in his hands, received, from the defendant therein, judgments on sundry persons in sat- isfaction, but made no entry of satisfaction on it, it was held that the execution was not satisfied, and the defendant not discharged.. Taylor v. Kdlcy, 6 Jones, 324. EXECUTORS AND ADMINISTRATORS.— I. 569 EXECUTORS AND ADMINISTRATORS. I. Letters testamentary, and Letters of Administration. II. What interest vests in them upon the deatli of the testator or intes- tate. III. Executors* son tort. IV. What interest vests in an adminis- trator dc bonis rum. V Of co-executors and co-adminis- trators, and their liability to or for each other. VI. 01 sales by executors and admin- istrators, and herein ot purchases by them at their own sales. VII. Of suits by executors and adminis- trators. VIII. Of their liability for funeral ex- penses. IX. Of their liability to creditors, and herein of suits against them, and their defence. X. Of their liability to legatees and next of kin. XI. Of refunding bonds taken from legatees and next of kin. XII. Of the effect ofmaking a debtor an executor or administrator. XIV. Of the claim ot executors and ad- ministrators to, or liability for costs. XV. Of the compensation, to which ex" ecutors and administrators are entitled. LETTERS TESTAMENTARY, AND LETTERS OF ADMINISTRATION. 1. When the next of kin of an intestate are infants, letters should be granted durante minore aetate; if out of the country, dvtramte absentia. RitchieY. McAuslin, 1 Hay., 220, (251.) 2. When the next of kin rdKde in a foreign country, they may appoint a person to take administration here, and the court Otight to grant letters to the appointee. Ibid. 3. The court ought not to grant letters to a person not desig- nated in the act of assembly, before the persons designated have refused. Ibid. (See Rev. Code, ch, 46, sec. 2.) 4. On an appeal from the judgment of the county court, upon a petition to repeal letters of administration improperly granted, the superior court made an order for the county court to grant them to the proper person. Ibid. 5. Letters of administration granted in another state will not entitle the administrator to sue here. Anonymous, 1 Hay., 355, (406.) S. P., Butts v. Price, Cord". Rep., 68, (201.) 6. Letters testamentary, granted in another state, will enable the executor to sue here. Stephens v. Smart. 1 Car. L. R., 471, (83.) 7. Proceedings to obtain a repeal of letters of administration must be commenced in the court in which the letters are granted. The superior court can exercise only appellate jurisdiction in such cases. Ledbetter v. Lofton, 1 Murph., 224. 8. An alien enemy may rightfully act as executor or adminis- trator, if resident within the State, by the permission ol the 570 EXECUTORS AND ADMINISTRATORS.— I. proper authority, but not otherwise. Carthey v. Webb, 2 Murph. r 268, S. C, 1 Car. L. R., 247, (20.) 9. When the nearest of kin are subjects of, and resident in, a hostile country, administration should be granted to the next of kin in this State. Ibid. 10. If the next of kin be incapacitated to act, administration shall be granted to the next in degree, who is qualified to act, in preference to the highest creditor. Ibid. 11. Where letters of administration are granted by the court of a county in which the intestate never resided, they are void, so that a petition to set them aside will not be sustained. ( 'oUins v. Turner, N. C. Term R., 105, (541.) 12. As between brothers, letters of administration will be granted to the one most interested to execute the duty faithfully. Moore v. Moore, 1 Dev., 352. 13. The county court has power to revoke letters of adminis- tration, issued during the same term, and grant them to another person. Ibid. 14. A judgment of the county court, deciding who is executor of a will, is conclusive upon all other courts, and cannot be ex- amined, although it be erroneous; therefore, a copy of the will need not be attached to the letters testamentary, or produced when given in evidence. Granberry v. Mhoon, 1 Dev., 456. 15. Where a decedent has no fixed place of residence, admin- istration is properly granted by the courts of the state where he died. Leolr v. Gilchrist, 2 Dev., 73. 16. An administrator, appointed in another state, has no right to sue in the courts of this; but where he has the possession of a bond due his intestate, and assigns it, the assignee may main- tain an action in his own name. Ibid. 17. A grant of administration in the following words: "Ad- minist ration en the estate of A, granted to B, he giving bond, &c," is to be construed an unconditional grant. Hoskins v. Mill,,; 2 Dev., 360. 18. Letters of administration are only a copy of the minutes, certified under the seal of the court. Ibid. 19. Where a. testator directed that, in the event of the death of his executor, the county court should appoint some peison to administer his estate, the executor of the first executor is not the executor of the first testator. A testator may direct that his executors shall act jointly or in succession. Roanoke Navi- gation Company v. Green, ."> Dev., 434. 20. The giving bond by an administrator is not a condition precedent to his appointment; and when it appeared from the records of the court, that A B was appointed administrator, and qualified as such, though a blank bond was signed by him and his sureties, his acts as administrator were held valid until his EXECUTORS AND ADMINISTRATORS.— I. 571 letters were called in and revoked. Sjiencerv. Coltoon, 4Dev., 225. 81. Upon an appeal from an order of the county court, grant- ing- letters of administration, the superior court acquires general jurisdiction of the matter, and may grant letters to one not originally a party to the contest. Blount v. Moore, 1 Dev. and Bat, 10. ' (Now altered, see WaUis v. WciRis, 1 Winst., 78. 22. An entry on the records of the county court : "it. is or- dered that S. G., be appointed administrator on the estate of J. G., on his entering into bond in the sum of §4,000 with J. B. and W. S. securities," is a valid grant of administra- tion, although it is not stated on the records that the administra- tor gave bond, and was properly qualified. The want of such statement may render the grant detective, and authorize the county court to annul it, but until that is done, the grant must be taken as valid, by other courts. Spencer v. Cohoon, 1 Dev. and Bat., 27. 23. Letters of administration, reciting the probate of a will and the death of the executor, are substantially letters de bonis won, although not expressly stated to be so. White v. Wdte, 1 Dev. and Bat., 260. 24. The county courts have power to revoke letters of admin- istration; and the transfer of the assets made by an adminis- trator, whose letters have been revoked, to his successor, is proper. Smith v. Collier, :\ Dev. and Bat., 65. 2"). Until the settlement and distribution of an estate, the ad- ministration is incomplete, and must, upon the death of the ad- ministrator, be committed to some person as administrator de bonis nun, and not to the executor of the administrator, and this, although the administrator was, as one of the next of kin, en- titled to a share of the estate. The right as next of kin did not attach to any particular chattels, and, prima facie, the unsold and undivided specific goods were held by the administrator in his official character, and therefore his re^fcpentatives do not succeed to them. Taylor v. Broolcs, 4 DevMnd Bat., 139. 26. The court of probate may accept the renunciation of an executor, at any time before he has intermeddled with the effects of his testator, even after he has proved his will. So of the ex- ecutor of an executor as to the first will. Mitchell v. Adams, 1 Ired., 298. 27. Where A died leaving a will, appointing B his executor, and B, after proving his will, died, leaving andjDhis executors, who accepted the trusts of the latter will, and qualified as ex- ecutors thereof, but without at the same time renouncing, as to the first will, but they never intermeddled with the effects of the first testator, it was held that the court of probate had the power, years afterwards, to accept their renunciation as to the first will, and grant administration thereon cum testamento an- nexo; and, further, that the acts, being within the power and 372 EXECUTORS AND ADMINISTRATORS.— T. jurisdiction of the court of probate, could not be incidentally or collaterally impeached in any other court, but could oidy be' at- tacked, upon an application to the court of probate, to revoke the letters of administration and recall the executors. Ibid. 28. After probate of a will, an executor cannot renounce at his own pleasure, but can only do so by leave of the court. Ibid. 29. The county courts have the power to grant administration, in this State, of the effects of persons, who resided and died in another country. And the court of the county, in which such deceased person had effi ots to be administered on, or bona nota- tii/ia, is the prop*r county to grant the administration. Smithv. Munroe, 1 [red., 345. 30. A right to a distributive share of an intestate's estate constitutes such bona notabitia, as entitles the court to grant ad- ministration. Ibid. 31. Where the next of kin reside abroad, it is in the power, and it is the duty of the court to grant administration to the appointee of such next of kin. Ibid. '62. Letters of general administration, granted during the pendency of a contest respecting the probate of a will, are null and void. And such letters, being entirely void, as being not within the power of the' court to grant, cannot be supported as a grant of administration pendente lite. Slade v. Washburn, 3 Ired., 557. 33. Where there is no administration .on the estate of an in- testate until ten years after his death, the grant of letters then will vest the legal title in the administrator by relation from the time of the intestate's death, and the possession of the effects by the next of kin, in the mean time, though claiming them as their own, will be no bar to his recovery of the property. Whit v. Raj, 4 Ired., 14. 34. If. uinler any circumstances, the court of probate in the particular case, bahauthority to grant, letters testamentary, or letters of administration, though they may be voidable, they are not absolutely void. If the court, in no possible state of things, could grant the letters, then they are void, and convey no au- thority to any one to act under them. Hyman v. Gaskins, 5 Ired., 267. 35. If the grant be void, then in a suit, by a person to whom it is made, the defendant may plead ne ungues executor; but oth- erwise, if it be only voidable, Ibid. 3o". A payment by a debtor to one who has obtained letters testamentary, or of administration, from a court of competent jurisdiction, is a good discharge to him, although the grant be afterwards declared null and void. Ibid. 37. The county court has no right to appoint an administrator with the will annexed, where there is an executor laboring under no disability, until he has renounced, and his renunciation ap- EXECUTORS AND ADMINISTRATORS.— I 573 pears of record; and an appointment before such renunciation is not merely voidable, but is absolutely void. Springs v. Erwin, 6 Ired.. 27. ' 38. The grant of letters of administration, upon the estate of a person then alive, is absolutely void, for want of jurisdiction in the court, and the fact, that tin- supposed intestate was then alive, may be shown by the defendants, under tic plea of the general issue in a suit on the administration bond; the relator Being at ibi rty to show, if he can. that the person proved to be alive was not the person upon whose estate the letters were granted though he bore the same name. State v. White, 7 Ired.. 116. 39. The right of the next of kin to letters of administration is not absolute and exclusive, so as to give them al claim to demand thai I intment of a third person, as administrator, shall be vacati d, to make room for their application. Stoker v. Kendall, Bnsl .. 242. 40. If the next of kin do not apply for letters of administra- tion, or tail to give bond and security, as the law ri [uires, and the county court thereupon giv s the appointnn nl te other person, the next of kin have ao further right, and the court has no power to revoke, or declare void, such appointmi nt. Ibid. 41. A county court may, upon its own mere t , istitute and cany on a ling to revoke letters test: , which it has irregularly and improperly issued. Cm n y if Meck- . Bissell, - Jones, 387. 42. It the widow of an intestate fail to make application, for the grant of letters of administration on her husband's estate, for an u ble time, and the court, after si . grant letters to another, she has no further right, and the court can- not, at her instance, revoke such letters of administration. Jin- Jcins v Sapi . •"> Jones, 510. 4.">. In a contest lor the grant of letters of administration. there are strictly no plaintiffs, and no defendants. .Ml the ap- plicants are actors, and some may withdraw ami others come in at any time during the progress of the court, even i an ap- peal from the county to the superior court. Atkins v. J/W ', rmisk, 4 Jones. :.'74. 44. Tin/ next of kin of a decedent, who leaves no widow nor issue, have the right, amongst them, of admini ti a on the estate, hut the right is not vested in one more thaa an< tl er. and a brother or sister has no priority over the children of a de- ceased brother or sister; and the court should select, from the next of kin, the person best qualified to administer the estate Ibid. 45. In granting letters of administration, a woman who can- not read nor write, and has no experience in keeping accounts, or in settling estates, is "incompetent," within the meaning of ■'574 EXECUTORS AND ADMINISTRATORS,— I.-II.-III. the act, Rev. Code, ch. 46, sec. 3. Stephenson v. Stephenson, 4 Jones, 472. 46. An executor, appointed in the state where the testator was domiciled, may accept the office in such state, and renounce it in this state, and an administrator cum testamento annexo, may be appointed by the court in this state tc sue hera. Hooper v Moore, 5 Jones, 130. # 47. The person, who is the highest creditor at the death of an intestate, is the one who is entitled to administration on the es- tate, under the Rev. Code, ch. 46, sec. 2; and not the person who may purchase in claims against the estate, after the death of the decedent. Pcarce v. Castrix, 8 Jones, 71. 48. Whenever a decedent has left a will and omitted to ap- point an executor, or the person appointed has duly renounced his right to quality, the county court has a discretionary power to appoint any proper person administrator with the will an- nexed. Suttle v. Turner, 8 Jones, 403. 49. Where an executor has renounced, and the county court has proceeded thereupon to appoint an administrator with the will annexed, it cannot proceed to set aside these acts, except at the instance of the executor, or in a proceeding to which he is a party, or of which, he has had notice. Ibid. 50. A wido - ^, under twenty-one years of age, cannot be ap- pointed an administrator; but the court may appoint an admin- istrator during her minority, and then grant to tier the letters of administration upon her coming of full age; or it may grant the letters to her appointee. Wattis v. IVallis, 1 Winst., 78. 51. On an appeal from a grant of administration by the coun- ty court, the superior court .should not, on reversing the order, proceed to grant letters itself, but must, order a procedendo to the county court. Ibid. See (Executors and administrators — Of sales by executors and administrators, and herein of purchases by them at their own sales, 13-14.) 11. WHAT INTEREST VESTS IN THEM UPON THE DEATH OF A TESTATOR OR INTESTATE. 1. Where a person had agreed to purchase a horse, which was delivered to him, and was to be his when he paid the full price, and he died before he completed the payment, it was held that this was a bailment coupled with an interest, which, on his death, vested in his personal representatives. Grant v. Williams, 6 Ired., 341. III. EXECUTORS DE SON TORT. 1. If an executor de son tort sell the property and pay debts, EXECUTORS AND ADMINISTRATORS.— III. 575 the rightful executor cannot disturb the purchaser. But if he dispose of the property not to pay debts, it seems that he transfers nothing by his sale. Hostler v. ScuU, 2 Hay., 179, (375.) 2. The act of 1715, being intended for the protection of dead men's estates, and not for the personal benefit of the executor, may be pleaded by an executor de son tort as well as by a right- ful executor. The true distinction is, that whatever will protect the assets may be pleaded by any executor, but those rights which the law allows to the executor, on account of his office, can be claimed by the rightful executor only. Mclntire v. Car- son, 2 Hawks, ,344. 3. An intermeddling, for which there is a colorable right, will not make a wrongful executorship. Therefore, whore one sold property as the agent of another, and after the death of his prin- cipal, collected the proceeds, he was held not to be an executor de son tort. Turner v. Child, 1 Dev., 25. 4. Where there is an administration, acts for which the party is responsible to the administrator, will not make him an execu- tor de son tort. Ibid. 5. Where an agent appoints one under him to sell the goods and collect the debts of his principal, and, upon the death of the latter, notifies his substitute that the agency is at an end, if the Substitute acts in the agency, alter such notice, he becomes an executor de son tort. Turner v. CkUd, 1 Dev., 331. 6. An executor de son tort cannot retain for his own debt. Ibid. 7. An administrator who holds property of his intestate, under a conveyance fraudulent and void against creditors, is liable to them as an executor de son tort. Norfleet v. Beddich, 3 Dev., 221. 8. One, who intermeddles with the goods of a decedent, may be subjected as an executor de *t>n tort, although letters oi adminis- tration afterwards issue. If the administration be committed to him, it entitles him to retain. Ibid. y. An intermeddling, afterthe grant of an administration, does not make an executor de son tort, because the intermeddier is answerable to the administrator, but if the intermeddier claim, under a grant, valid as against the administrator but void as to Creditors, the latter may, from necessity, subject him as an ex- ecutor de -son tort. Ibid. 10. ( hie who sets up a claim to goods of an intestate, under a fraudulent conveyance, and thereby injures the sale of them, does not render himself an executor de sun tort. Barnard v. Gregory, 3 Dev., 233. 11. A resident of this State, at whose house a citizen of Georgia died while on a visit, cannot, in a suit by a creditor of the de- ceased, living in Georgia, be rendered responsible, as an executor de son tort, for taking possession of a sum of money, which the deceased had with him at the time of his death, and paying it 576 EXECUTOES AND ADMINISTRATORS— III. over, without notice of the creditor's claim, to a person who had administered upon the effects of the deceased in Georgia. Nis- bet v. Stewart, 2 Dev. and Bat, 24 12. One who intermeddles with the goods of a deceased person, after the will is proved, or administration granted, cannot be sued by a creditor as executor de son tort, unless where he claims under a fraudulent deed. But if he had intermeddled before the ap- pointment of a legal administrator, he may be charged as execu- tor de sou tort, though there lie a legal administrator at the date of the writ. McMorine v. Storey, 3 Dev. and Mat.. 87. 13. One who administers upon the estate of a fraudulent alienee, and take-' pi ion of the goods assigned, may, upon the death of the fraudulent assignor, be sued as executor de son tort, by the creditors of the latter, and this, although administrar tion may have been granted upon his estate. McAforinev. Storey^ 4 Dev. and Bat., 189. 14. The ease of Turner v. Child,, 1 Dev., 25, explained and dis- tinguished from this, because in that the agent, who was sought to be charged as executor de son tort of his deceased principal, had been rightfully put into the possession of the property, not only as to his principal, hut as to all the world. Ibid. 15. The law never assigns any thing to the administrator but what may lie lawfully assigned. Hence, goods conveyed t<> an assignee, tor 1 he purpose of defrauding ere. I i tors, are not assigned to the administrator of the assignee, as against the creditors of the assignor. Ibid. 16. Where a father made a fraudulent conveyance of slaves to his son, an infant of tender years, and then died, and the slaves were talon possession of by the grandfather of the infant for his use and benefit, it was held that the grandfather was liable to be sued by a creditor of the deceased father as executor de son tort, aialt hat an infantof tenderyears cannot be an executor, nor be sued as such. Bailey v. 31iller, 5 lied., 444. 17. If a fraudulent donee of goods disposes of them to anoth- er, who accepts them bona fide upon a purchase, or even to keep for the donee, the vendee or bailee would not be executory son tort. But an infant of tender years can neither accept such a gift, nor constitute an agent to keep possession of it for him. Ibid. 18. It is not the paper title merely that makes one an execu- tor !. (120.) 2. Where co-executors live in different counties, a warrant from a justice against one of them shall not be abated because ot its not having been served on others, who were out of the jus- tice's jurisdiction. Park v. Morrison, 1 Car. E. R., 542, (155.) 3. One administrator of two cannot alone discharge a debt due the estate, by receiving a proved account against the intestate 37 578 EXECUTOES AND ADMINISTRATORS..— V.-VI. although the receipt purports to be in satisfaction of the debt ; but a payment to one of the administrators would have been good. Mangum v. Simms, 1 Car. L. 1!., 547, (160.) 4. Where A and B were co-executors of C, and A gave his bond for money to B, styling him executor, and stating that he himself had borrowed the money in his private capacity, and not .a? executor, and B afterwards died, it was held that B's admin- istrator could maintain an action on this bond, and this without having settled or paid over the amount to another executor. Alston v. Jackson, 4 Ired., 49. 5. Where there wore two executors, and one of them died, and afterwards the other died, it was held that the executor of the last might recover at law, from the executor of the co-executor who died first, a bond belonging bo the estate of the first testator. Lancaster v. McBryde, 5 Ired.. 421. 6. One of several executors may release a debt or demand due to the testator; and it not necessary that all should join. Hoke v. Fleming, 10 Ired., 263. VI. OF SALES BY EXECUTORS AND ADMINISTRATORS, AND HEREIN OF PUR- • CHASES BY THEM AT THEIR OWN SALES. 1. An executor, as such, can no otherwise become entitled to the goods of his testator, than by paying their value to credi- tors. He cannot purchase at his own sale. Boaitcell v. ],', ■■null. 2 Hay., 1 (142.) S. P. Corbin v. Waller, Ibid ins (266.) Tomlin- 8onv. Detestatius, Ibid, 284 (462.) Britt n \. Browne, 2 Car. Law Rep., 447, (332.) Gordon v. Finhy, 3 Hawks 23!). 2. If the property of a deceased person be sold by the sheriff, under an order of court, the executor may purchase it at an un- der value, if he can; but if he purchase at his own sale, lie shall ans er for the real value. Towdinson v. Detestatius, 2 May., 284 (462.) 3. A sale of land by two executors, though four are empow- ered by the will, is good, provided the other two refused the ex- ecutorship. Miller v. White, Tay., 309 (135.) 4. When a testator gives his executors authority to sell land, all the acting executors, alive al the time, must join in the deed. DebowY. Hodge, 1 Car. I.. 1!.. 368 (36.) 5. Where the executors were empowered by a testator to sell lands, and two, who had qualified) sold the lands, a third, who had neither intermeddled with, ma- renounced the executorship, did not join, or refuse to join, in the sale; held that the sale was good; held further, that the renunciation of an executorship might be presumed as to one, who had not intermeddled for twenty years after the probate of the will. Mann v. Peay, 2 Murph., 84, 6. A devisor, having a house and lot and two tracts of land, EXECUTORS AND ADMINISTRATORS.— VI. 579 directed his executors to sell one of the tracts and the house and lot, for the payment of his debts, and gave the other tract to his wife for life, and then to be sold and the money to be divi- ded among his children. One of the tracts of land was sold by the executors, and afterwards a part of the other tract was sold by one of the executors, the other having died, it was held that the last sale was void, as the power to sell extended to only one of the tracts of land, and not to the other. Brown v. !>■ \ . 2 Morph., 125. 7. An executor shall not be permitted to become a purchaser, at a sale made by him as such, although such sale is public, ne- . fair, for full price, and the persons inter :sted were pre- ited to the sale'. Byden v. Joins, 1 Hawks 197. 8. A purchase from one administrator, where there is more than one, will not vest a title in the purchaser; otherwise of the purchase froi utor. Gordon v. Findlay, 3 Hawks 239. 9. Neither an administrator, nor any person acting as trustee, ean purchase at his own sale; but when one administrator pur- chases a slave from his co-administrator, it is not strictly a pur- chase from himself; but the purchase vests no title, for duty and interest being in opposition in the purchaser, the ease comes within the mischief intended to be . iim t by the rule, which prohibits trustees from purchasing of tin mselves. Ibid. 10. Executors, having a power given them to sell lands of their testator, are personally bound by a covenant that "they do forever warrant and defend." &c. Godley v. Taylor, 3 Dev. 178. 11. Where a testator devised that his executors should sell his lands, and appointed three persons as his executors, onlvone of whom qualified and acted as his executor, a sale by that one alone -will, under the statute of 8th Henry 8th, ch. 4,' be suffi- cient to pass the estate, without its appearing that the others have formally renounced the executorship, or refused to join in the sale, li'untl v. Sparks, 1 Dev. and Bat., 389. (See Rev. Code, eh. 46, sec. 40. ) 12. 'fhe probate of the will, and the qualification of the exi c- utors in the spiritual court, ar to the valid execu- tion of a power over lands, conferred on the executors by the will. Nor does the renunciation of the office of executors de- prive them of the right to execute the' power, unless the power was given to them, simj ly as i ' Ibid. 13. \ forbearance to enter upon the duti s of executor, when the will is proved, is presumptive evidence of a refusal to accept the trust. If id. 14. If an executor actually renounce of record, he may still come forward, qualify, and enter upon the execution of the func- tions of his office. Ibid. 15. A power to sell land, conferred upon several executors, 580 EXECUTORS AND ADMINISTRATORS.— VI. must be executed by all who proved the will. TVasson v. King, 2 Dev. and Bat, 262. 16. Whether an executor, alter joining in a sale, has a right to refuse to execute a deed, and if not, whether lie shall be com- pelled to join, are questions which belong exclusively to a court of equity. Ibid. 17. Land directed by a testator to lie sold by his executors, but not devised to them for that purpose, until a sale, descends to the heirs. Ferebee v. Proctor, 2 Dev. and Bat., 439. 18. An administrator with the will annexed cannot, by vir- tue of his appointment, execute a power of sale given to the ex- ecutor. Neither will a decree of a court of equity, directing him to sell and convey, enable him to vest a legal title in his vendee. That court has jurisdiction only to direct those having the legal estate to join in a sale, for the purpose of executing the trusts of the will, but has none to declare the legal title to be in any person, except the one in whom, at law, it vests. Ibid. (Au administrator with the will annexed may now sell lands, under certain circumstances. See Rev. Code, ch. 46, sec. 40.) 19. A direction to sell land for the payment of debts, or for any other purpose, which naturally brings the proceeds into the hands of the executor, vests, by implication, a power of sale in him. Ibid. 20. An administrator pendi trie lite has no power to sell the effects of the deceased, except perishable property. SalterwMte v. Carson, 3 Ired., 549. 21. The provisions of the act of 1846, ch. 1, do not apply to a case, where an administrator of the deceased was appointed before the 1st of February, 1847, though that administrator be dead, and an administration de t><>ii!>; imn be granted sub- sequently to that date, when the act was to go into operation. Powell v. Felton, 11 ired., 469. (See Rev. Code, ch. 46, sec. 44 to 60, inclusive.) 22. A, being in embarrassed circumstances, purchased a tract of land from B, and paid for it, and then caused a deed to be made from B to A's sons, with a view of defrauding his creditors. A then died, and his personal estate was exhausted in the pay- ment of debts, leaving some still unpaid, when it was held that his administrator could not obtain an order from the court under the act of 1846. ch. 1, to sell the said land for the payment of debts; because the fraudulent conveyance was not made by the intestate himself, and the trust in the sons was one which could not have been sold under a fi. fa., or attachment, in the life time of A, nor could a court of equity interfere to enforce the perform- ance. The only remedy for the creditor was by a suit in equity, founded, not on the trust, but on the fraud, by which A's prop- EXECUTORS AND ADMINISTRATORS— VI.-VTI. 581 erty had been withdrawn from the payment of his debts. HJtem v. Tull, 13 Ired., 57. 23. Where a slave is directed in a will to be sold, at the expi- ration of a life estate given therein, the executor is the proper person to make the sale, though not specially directed to do so. Bains v. Drake, 5 Jones, 1">.">. 24. Where power is given by will to two executors to sella slave, and one of them makes a parol sale and delivery, which is afterwards concurred in by the executor, the power of sale is well executed. Ibid. 25. Upon a petition by an executor or administrator, to sell lands for the payment of debts, under the Rev. Code, ch. 46, sec. 45. and following, no notice of the sale is required to be given to the creditors. .Nor is the fund raised by the sale under the direc- tion and control of the county court, which ordered it. Thomp- son v. Co..: 8 Jones, 311. 26. After making an order for confirming the sale, made by virtue of the act just above referred to, the jurisdiction of the county court is at an ead, and mi petition, to open the biddings under such sale, can lie sustained. Ibid. 27. The county c no jurisdiction of ti petition, or bill, at the suit of creditors, to eon vert a purchaser of land, under the act above referred to. into a trustee, upon the allegation erf fraud and collusion. Ibid. 28. Where an executi >r pn e a part of a standing crop, belong- ing to the estate of his testator, to one for hauling the remainder to the crib, it was held that he did not thereby incur the penalty imposed by the Rev. Code, ch. 4li, sec. 20, for selling his testa- tor's estate otherwise than at public auction. MeDanielx. Johns, . 414. 29. Where a person bid off a parcel of wheat at an adminis- trator's sale, and another person came forward and gave his note for it, in compliance with the terms of the sale, if axis held that it was proper to leave it as a. question for the jury, whether the latter intended to become the purchaser himself, or only to be the surety of the bidder. Thompson v. Andrews, 8 Jones, 453. VII. OF SUITS BY EXECUTORS AND ADMINISTRATORS. 1. Letters of administration nfied not remain in court, for they are not deimmdable after issue joined. Berry v. Pulliatn, 1 Hay, 16, (21.) 2. An administrator may sue, as such, upon his own possession. Ibid. .">. When an executor declares as such, he must make profert of his letters testamentary, and after the first term they need not be produced again; but if he declare upon his own possession, the fact of executorship forms a part of his title, and must be 582 EXECUTOES AND ADMINISTRATORS.— VIE proved on the trial, by the production of the letters themselves, unless they are lost, when perhaps other proof of executorship will be admitted. v. Oldham, 1 Hay., 165, (190.) 4. Whether an administrator de bonis non can sue upon a bond given to the former administrator as such, for goods purchased at his sale, quaere. Anonymous, "2 Hay., 18, (170.) It seems that he may. CutJar v Quince. Ibid, 60, (227.) 5. Every suit at law, to recover any part of the property of an intestate, or any debt due his estate, must be brought by the administrator, who is the only legal owner. It cannot be brought by the next of kin, for their claim is through the administrator, and not above him. , Davghtry v. Saynes, 1 Car., L. 1!., 480, (92.) 6. An administrator cannot bring trover for a chattel, after bis consent, before administration granted, that defendant, the next of kin, shall have it. Cross v. T< rliiujtov, 2 Murphy 6. 7. And his having fatten a conveyance for the ^battel from the next of kin. before administration granteH, though such con- veyance be set aside for fraud, is evidence of his assent. Ibid. 8. An administrator shall have a judgment upon a soi. fa., on a refunding bond, when the defendant pleads that the debt re- covered against the administrator was not justly due, but was obtained by collusion, unless the defendant can support his plea by proof as upon him the burthen of such proof lies. Gheatkam v. BoyJcin, 2 Murph., 301. S. C, 1 Car. L. Ik, 289, (29.) 9. Where the same person is the administrator of both the creditor and the debtor, and has assets in hands of the latter suf- ficient to discharge the debt, it is extinguished. Muse v. Saw- yer, X. C Term, ];., 204, (637.) 10. Where, on a sale by executors, the terms made known were twelve months credit upon giving bond and security, and the de- fendant purchased, but refused to pay the money or give a bond, it was held that the executors might immediately sue for the mo- ney, notwithstanding the terms for the twelve months' credit. Peebles v. Overton, 2 Murph., 384, 11. An administrator de bonis non is barred by a continued ad- verse possession, of three years, against he first administrator. HosJdns v. Miller, 2 Dev., 360. 12. In an action by an administrator for an injury clone to his intestate, after a plea in bar, the defendant cannot impeach the grant of administration. Spencer v. Cohoon, 3 Dev., 80. 13. Where an administrator seeks to revive a suit commenced by his intestate, he must do it by motion, and the defendant may then put the administration in issue. It cannot, however, be impeached as a ground of nonsuit at the trial. Ibid. 14. But where the defendant claims title by a grant of admin- istration, previous to that of the plaintiff, or relies on his pos- session against the first administrator, he may, upon the gene- EXECUTORS AND ADMINISTRATORS.— VII. 583' ral issue, prove the first grant of administration ; because this is in avoidance of the plaintiff's title. Ibid. 15. ( Jounsel lees paid by an executor, in a suit brought against him, in which lie was successful, cannot be recovered in an ac- tion on a bond, conditioned to exonerate him from liability on account of his executorship. Sumner v. lVhidb<<\ 3 Dev., £4. lt>. When an executor sells the assets of his testator, avid takes a bond payable to himself as executor; and dies, leaving the bond uncollected, it was held, in the absence of any evidence that the executor had appropriated the bond to his own use, that both at common law, and under the act of 1794, the bond was of the of the testator, and an action might be brought on it by the administrator dc bonis nun. Eurev. Ewe] 3 Dev., 206. (See Rev. Code, eh. 46, sec. 17.) 17. .V debt due an administrator bv his intestate is, in law, paid, the instant assets applicable to ifare received, and nothing. will set it up again; as where' an administrator was tihe obligee of a bond executed by his intestate and another, it was h tisfied by the receipt of assets applicable to it, although the obligee was afterwards compelled to pay other bond debts of his intestate, to which he was surety. And it hat the act of 1829 would not. in such a ease, benefit the administrator. ChqMnv. Hones, 4 Dev., 103. (See Rev. Code, eh. 110, sec. 4.) I 18. An application to the county court, by an executor, for an order appointing Commissioners to divide the estate of his testa- tor among the legatees, without any proceeding to malic those legatees parties, is merely ex parte, and will not authorize the court to ! t judgment of confirmation, so as to bind the lega- tees; nor to make an order that such of tin' legatees as came in voluntarily, and opposed the confirmation of the report, shall pay cost. /.' .,/:,, v. Maget, 1 Dev. and Bat, 498. 19. If one of two, or mere, obligors in a bund, administer mpon tb : estate of the obligee, he cannot maintain an action on the bond against the obligors; and though the action is only suspended during the life of the administrator, and may be brought by the administrator de bemis non of the intestate, yet tie- (>. 20. If one of the obligors becemesan executor of the obligee, Hi- action is not merely suspended, but the debt is extinguished. But in such cases both the executor and administrator must ac- count for the debt, as assets, to creditors, and legatees or next of kin. Ibid. 21. What relief a surety, who administers upon the estate oi his obligee, may have against his co-obligors discussed. Ibid. 22. An administrator in this state cannot unite with him, in 584 EXECUTORS AND ADMINISTRATOKS.-VII-VIII-IX. an action here, one who was joint administrator with him in another state. Lee v. Game, 2 Ired., 440. 23. In this State, only the executors, who qualify by taking the necessary oaths, are required to join in an action, for a debt or demand due to their testator. Alston v. Alston, 3 Ired., 447. 24. In actions by administrators, the letters of administration, granted as they are by a domestic tribunal of exclusive juris- diction, and remaining unrevoked, are prima facie evidence of the death of the alleged intestate, and of the light of represent- ing him. BricMousev. Brickhouse, 11 Ired., 404. 25. Where the goods of an intestate are converted after his death, his administrator, in an action of trover to recover the value, must produce on the trial his letters of administration as evidence of his title. Kesler v. Bosemctn, Ihisb., 389. 26. Where a plaintiff sues in his own eight, but names him- self "as executor," these words may be rejected as surplusage, and he may recover in his own right. Cottony. Davis, 3 Jones. 355. 27. Where one sues as administrator, he must make profert of his letters of administration, and, if no over be demanded, he is not bound to produce them on the trial. Hyman v. Gray, 4 Jones. 155. S. P. Baas v To for, 4 Jones, 499. See. (Sheriff — Liability for escapes, 9.) VIII. OF THEIR LIABILITY FOR FUNERAL EXPENSES. See (Executors and Administrators — Of their liability to credi- tors, 53-54-60-102-103.) IX. OF THEIR LIABILITY TO CREDITORS, AND HEREIN OF SUITS AGAINST THEM AND THEIR DEFENCE. 1. Trover, trespass, deceit, or any other action of the like na- ture, will lie against executors, where the thing itself has been used, so as to go into and increase the testator's estate, and the benefit thereof eomes to the possession of the executor; oth- , erwise, where the thing is destroyed. McKinnie v. Oli/t/iont, 1 Hay., 3, (6.) S. P., Decrow v. None, Ibid, 21, (28.) Clark v. Kenan, Ibid, 308, (355.) 2. When "no assets" is pleaded, the plaintiff shall "nave judgment for the amount of the assets which he can show to be in the hands of the administrator, and a judgment qvando for the residue of his debt. McRae v. Moore, 1 Hay., 182, (209.) 3 Where an administrator omits to plead plene administravti, and there is judgment against him. on nidla bona being returned to an execution de bonis testatoris, the plaintiff may take out ex- ecution de bonis propriis, without waiting for the return of a devastavit. Border, v. Nash, War., 42, (34.) S. P., Hogg v. White, 1 Hay., 298, (344.) Burnside v. Green, 2 Hay., 112, (271.) EXECUTORS AND ADMINISTRATORS.— IX. 5S5 Alston v. Harris, Ibid. 125, (285.) Overruled, see Parker v. SVe- phens, 1 Hay., 218, (250.) Hunter v. Hunter, N. C. Term Rep., 122, (558.) 4. Where there are several demands of equal dignity, and a deficiency of assets to pay all the credit its. the executor may, before any suit brought, pay, to the amount of the assets, which of them lie pleases. Anonymous, 1 Hay., 295, (34.) S. P., Gricr v. Combs, Tay. 138, (85,) S. C. 2 Hay.. 'us. (235.) 5. After suit brought, an executor cannot make a voluntary payment, being restrained by the commencement of the suit, and his baying notice thereof; still it is not priority of suit, but pri- ority of judgment that entitles, as against au executor, to priority of payment: a plea of former suit, therefore, is not a good plea in bar for an executor; it should lie a plea of former judgment Ibid. 6. The plea of plene administravit must be true when it is put in, and not at the time of the trial. Anonymous, 1 Hay., 297, ( 343 -) .... 7. Trover will lie against executors, for a conversion m the life time of their testator, although the estate may not have been benefitted by the conversion. Avery v. Moore, 1 Hay., 362, ( 415 -) . .... 8. -V retainer may lie either pleaded, it given m evidence, under the general issue. Evans v. Norris, 1 Hay., 411, (473.) St. An administrator can only retain to satisfy his own de- mand, when it is of equal dignity with that of the creditor, against whom it is retained; but against debts of a higher dig- nity he cannot retain. Ibid. 10. Voluntary payments by an executor, after the teste of a writ against him, though before plea pleaded, are not allowable. McNaughton v. Blocker, 1 Hay., 417. (181.) 11. An executor is bound to pay debts already due, before those not yet payable. Evans v. Horrid, 1 Hay. 411. ]■/. Judgments obtained against an executor, after the teste of the writ, may be pleaded, if obtained before the proper time of pleading. Ibid. 13. Debts assumed by an administrator, before the teste of the writ, must be allowed to the amount of the assumpsit. Ibid. 14. When two judgments are obtained against an adminis- trator, the first an absolute one, and the other a judgment qi ando, and assets afterwards come to the hands of the administrator, quaere as to which judgment they are first applicable. Anony- mous, 1 Hay., 460, (530.) 15. An administrator should return, in his inventory, which of the did its are sperate, and which desperate; otherwise, all will be presumed good, until he shows the contrary. Anony- m'i/i.% t I lay, 481, (554) 16. The plea of plene administravit should be received at all 586 EXECUTORS AND ADMINISTRATORS.— IX. timte, provided the defendant do not come with it at a very late- period, and thereby delay the trial. Anonymous, 1 Hay., 484, (558.) S. P. Sawyer v. Sexton, 2 Hay., 67,(235.) S. 0. Tay., 137, (85.) 17. Upon the plea of />1euc administravit, the defendant can begin, by showing an administration of something, and then 'the plaintiff must provfc, if he can, by the inventory, or otherwise, assets to a greater amount than is proved to have been adminis- tered. Anonymous, 2 Hay., 14, (164.) 18; Where administrators pleaded non assumpsit and phne ad- ministravit, upon which a verdict was found fur the plaintiff on the first issue, and there was no verdict on the second, it was held, on a. .v •/. fa. to charge the administrators de bonis propriis, that, of necessity, they must lie allowed to plead phne travit, which, however, would relate to the teste of the first pro- cess; and the plea was allowed then, only because it had been put to tin- original action. JEmmett v. Stedman, '2 Hay., 15, (166.) Id. \\ h re an administrator was sued to the same term, on a bond and a simple contract debt, and to the latter pleaded pletu admini travit, and afterwards confessed a judgment, held that, at a subsequent term, he might add a plea in the suit on the simple epntract, of ""judgments confessed and no assets ultra." il'ool- fprd v. Simps .">, (511,) but see contra, Teasdi le v. Branton, Ibid, pi, (457.) 21; The administrator, on a plea of plene administravit, need not prove each debt that he paid off to be due; he may provi t he payment, and the plaintiff may show, if he can. that the debt was not due. Bnnrn v. Lane, 2 Hay., 159, (344.) 22. If a bond be shown to an administrator before letters ta- ken out, and he afterwards pay simple contract debts, he shall no! be allowed them against the bond; notice need not be by suit, showing the bond being sufficient. Ibid. 13. The practice of proving a simple contract debt by affida- vit, or otherwise, ex parte before a justice, is of no avail. Ibid. 24. Advertising in a newspaper, printed in the county, is equivalent to advertising "in other public places in the county," as directed by the act in the case of executors and administra- tors. Blount v. Porterfield, 2 Hay., 161, (345.) (See Rev. Code, ch. 46, sec. 22.) 25. Letters of administration on the estate of the rightful own- er of a slave, taken out after a defendant had acquired posses- sion, when defendant was sued by a stranger, from whose pos- EXECUTOES AND ADMINISTEATOES— IX. 587 session he took him, will not defeat the action, though it will di- minish the damages. Hostler v. Scull, 2 Hay., 17!'. (375.) 26 An action on the case lies against executors, when their testator has seduced away the plaintiff's .slave, Cuilarv. Brown, 2 Bay., 182, (380.) -:■ In support of his plea of plene admiiiistravit, an adminis- trator is aot bound to produce the sul ascribing witness to a bond given to him by his intestate, but may prove it by other means. Woolf&jy. Wright, 2 Hay.. 230, (409.) - s . A judgment in Virginia against defendant as executor, to be levied de bonis testatoris, is proof of assets; and, in i'l on such judgment here, the judgment shall be de bonis pri v. Person, 2 Hay., 301, (490.) 29. [fan administrator plead a judgment anil no assets ultra, tli" pi. 1 ■. iff r:i; ,' iply either ,; , barring claims against the estates of deci - dents after seven years, does not apply in a case where the plaintiff claims immediately, and keeps it up by a ndence of payment, although seven vears elapse before suit be I rought, Lit ' !o, n v. Gilchrist, 2 Hay., 393, (589.) 31. .' >r is not compelled to try an issue, at the same term at which it is made no. Alston v. Sumner, 2 Hay., 404, (609.) :'>_'. When the plea of plene administravit is found for the ad- minis rator, and a sci. fa. issues to the heir, the administrator is contie , I until the heir comes in. so that he may make up an issue, it he choose. Hid. '33. An ex.e&utor cannot plead that he has fully admini ered since the last continuance. Smoot v. Wriqht, Conf; Eep., 37l, (449.) 34. It is discretionary with the court to allow the plea of plene adm.n'stravit to be entered .••t'ter issue joined under the circum- stances of the case. Beidv. Hester, Conf. Rep., 488, (540.) 35. An action of deceit in tin- saleof a chattel will lie against the executors of the testator, who made the sale'. Arnold v. Ln- iti'T. 1 I ' ir. L. R., 529, (14:;.) S. P. Helrne v. Saunders, 3 Hawks, 563. (See Rev. Code, ch. 1, sec. 1.) 311 •■ Judgments confessed," by an an administrator, after plea ofplen i Iministravit pleaded, is not a good plea for him. Church- ill v. Gomron, 1 Murph., 39, S. C. Conf. Eep., 555, (574.) S. 1*. Gottins v. U)iderhM, 2 Car. L. R„ 579, (381.) 37. An administrator ought to be made a party defendant by sci. fa. Mall i son v. Howard, 1 Murph., 44. 38. The truth of the plea of " fully administered" must be tested when the process is served, or when the plea is pleaded ; after which time the administrator is not at liberty to dispose of 588 EXECUTORS AND ADMINISTRATORS— IX. the property of his intestate, although it was proper to do so before. lie can sell only before the lien of the creditor attaches upon the goods of the deceased debtor. Gregory v. Hooker-, 2 Murph., 250, S. C. 1 Car. L. R, 99, (13.) 39. When the jury finds thai- an administrator has fully ad- ministered, and the plaintiffwrters up a general judgment, and proceeds against the heirs, he cannot proceed tor assets which may thereafter come to the administrator's hands. He can only do so when he enters up a judgment quando. Miller v. Sfreftcer, 2 Murph., 281, S. C. 1 Car.' 1, R, 264, (25.) 40. Where a sale was made by the administrator, under the act of Assembly, on a credit, before the commencement of the suit, but the proceeds were not received until after plea pleaded, helt! that proof of these assets shall not lie given again ! the ad- ministrator. In a eci. fa. upon a judgment quando, however, the plaintiff may recover such assets, coming to defendants hands after plea pleaded in the original act ion, as are not already 1 iound bv outstanding judgments. Gregory v. Hooker, 2 Car. L. R., 116, (215.) 40. An administrator may pay debts of an inferior dignity, before he has notice of those of a superior nature, if he do so without fraud. Delamothe v. Lanier, 2 Car. L. R, 413, (296.) 42. A contingent debt, though secured by specialty, shall be postponed to a simple contract debt. Ibid. 43. When an administrator confesses judgment on a penal bond, the condition of which was, that the intestate should exe- cute a marriage settlement within six months after his marriage, the assets are protected by the amount of the judgment, although such bond was not registered Richardson v. Fleming, 2 Car. L. i;., 455, (341.) 44. In an action against an administrator upon an administra- tion bond, which described the intestate as N. R., the plaintiff may give in evidence a judgment confessed by the administra- tor, in a suit brought by the plaintiff against him, wherein his intestate was described as X. W. 1!., the court being satisfied that N. R. and N. W. R. meant the same person. The variance-, if any, should have been taken advantage of, when ho was sued as administrator of JSL VV. R. Governor v. Ileilan^ 2 Car. L. R., 460, (34(1.) 45. Judgment will not be arrested on an administration bond made payable to the governor, notwithstanding the act 1795, which required it to be made payable to the chairman of the .county court, because it is good as a common law bond. Ibid. 46. Judgments obtained against an administrator, after service of a writ and before plea, make him responsible for the assets he had when served with the writ, although such judgments are entered up quando- Here the administrator had sold all the property of the intestate, under the act of assembly, between EXECUTORS AND ADMINISTRATORS.— IX. 589 the time of the service of the writ, and the judgment quando. .Villi such judgments may be pleaded although given by a jus- tie!' I'll- a sum exceeding £30, provided the warrants do not ex- fchat sum. lAtUejohn v. Underhill, 2 Car. L. R, 574, (377.) 47. The charge of keeping an eld ami infirm slave is a charge, in favor of the community, upon the estate of a testator in the hands of his executor, under the act of 1798, and is to be paid in preference to the claims of any individual. Ibid. (See Rev. i li. ■ ■''>. sec. 16.) 4*. Where an administrator is fixed with assets by the finding of a jury, and an execution issues, on which "nulla bona" is re- turned, the next proper process is a sci. fa. suggesting a rf< vas- tavit, and not a special ft. fa. Hunter, v. Hunter, N. C. Term, R, 122. (5K.) 49. A executor, who has assets, and promise's to pay a. d ib1 of his testator, is personally bound Sleighter v. Harrington, N. C. Term R. 249, (679,) S. < ; „ 2 Murph., 332. 51 ). An administrator, against whom a suit, commenced against his intestate, is revived by a sci. fa., may confess judment on a writ, subsequently issued against him as administrator, and giv$ in evidence the record of such judgment, in support of his plea of fully administered to the suit revived by sci. fa. Reynolds v. Putney, 1 Hawks, 318. 51. An administrator may retain assets to satisfy a debt due to himself on a note of his intestate, endorsed to him after the death of the intestate, but prior to the grant of administration. Ibid. 52. When on the division of an intestate's slaves among his children, an allotment is made to A greater than thai made to B, another child, and, for equality of partition, A is directed to pay a certain sum to B, this gives I'> a lien mi A's slaves for that amount, and, if upon A's death, his administrator sell the slaves. before payment is made to B, the balance only of the purchase money, after such payment, will be assets in the hands of the administrator of A. Gregory v. Hooker, 1 Hawks, 394. 53. The personal representative of a decedent is not liable for the funeral expenses of the deceased, unless he contracts for them, or subsequently promises to pay for them; there is no im- plied promise to pay for them. Ibid. .')4. Where an individual, of his own mere notion, buried a ed person, and, without giving notice to the administra- tor of the expenses, sued for them, he was not allowed to re- cover. Ibid. 55. All the chattels of an intestate, of which the administra- tor, by reasonable diligence, might have possessed himself, are assets, and liable to creditors. Gray v. Strain, 2 Hawks, 15. 56. It is the duty of an executor, in this state, to take out letters testamentary in another state, for the purpose of suing "590 EXECUTORS AND ADMINISTRATORS.— IX. for a debt there, if the interest of the estate, which he rep- resents, requires it; and, in determining this point, the magni- tude of the debt, the distance, and probable expense, are to be considered. An omission to do it, when necessary, amounts to a devastavit. Eelme v. Sanders, 3 Hawks, 563. ;">7. When the plaintffs in an execution are administrators, who, after a levy by the sheriff, suspend the proceedings, and receive the money from the defendant, without any sale by the sheriff, they arc liable to the sheriff for his commissions indi- ■. and not as administrators. Mattock v. Gray, 4 Hawks, 1. 58. Where the plaintiff fixes the administrator with assets for a part of his claim, he recovers that amount of assets and all cost, and is entitled to a judgment guando for the residue; which judgment, if nei entered upon the trial term, may be entered af- terwards nunc 'pro tunc, provided third persons be not injured by it. Gregory v. Haughton, 1 Dev., 442. 59. Creditors have a righl to assign the non-payment of their debts as a breach of the administration bond, and to put it in suit; and the rule df damages is the amount of the judgment against the administrator, where one has been obtained. Wash- ington v. Hunt, 1 Dev., 475. S. P., Smith v. Fagan, 2 Dev., 298. 60. Funeral expenses arc a charge upon the assets, indepen- dently of any premise by the administrator, and, if proper to the estate and degree of the deceased, must be preferred to all other debts; and the question of propriety involves in it the enquiry, whether the funeral expenses were unnecessarily and officiously incurred by a stranger. Parker v. Lewis, - Dev., 21. 61. Del its due by specialty follow the person of the and area-sets where lie has a domicil. Leak v. G-ihhrist, 2 Dev.. 73. ()± A sci. fa. is a proper remedy against an administrator, to revive an unsatisfied judgment against an intestate. Smithy. Fagan, 2 Dev., 298. 63. The consideration of a promise by an?executor, to pay the debts of his testator, ishis liability: and as that depends upon his having assets, if behave none, the promise is void. Williams v. Chaffin, -> Dev., 333. 64. But it such promise is founded, upon any other considera- tion, such as a. benefit to the exi cutor, or an injury to the cred- itor, it is binding; but the inconvenience or injury to tee cred- itor must be the result of express stipulation, not m consequence of a reliance upon the promise. Therefore, where an executor, not having assets, promised to pay the debt of his testate]', and. in reliance upon that promise, the creditor neglected to prose- cute his claim, it /nix held that lie had no light to recover. Ibid. 65. If an administrator plead " fully administered " except a certain sum, and, as to that sum, sets forth judgments confessed by him, giving the particulars of each, the plaintiff cannot im- EXECUTORS AND ADMINISTRATORS.— IX. 591 peach any of those judgments for fraud', unless upon a special replication. But if, according to the loose practice in this state, the defendant plead that he has confessed sundry judgments at a certain term of the court, without specifying any particulars of them, the plaintiff may, undel a general replication, impeach anv judgment offered by the defendant in support of his plea. BeU v. Davison, 2 Dev., 397. 66. [f several judgments be pleaded by an administrator, and the plaintiff falsify any of them, he is entitled to recover the amount thus falsified, although the defendant has in fact fully administered. Ibid. (17. Y\ here, upon the plea of plene administravit prcefer, &c, the administration account was referred to the clerk, and be was directed to ascertain how the assets were disbursed, or confessed, with Lberty to each party to except, and the repi , e evi- dence on the trial, and the clerk excluded one judgment and part of another, for rea I in the report, it was held thai the defendant, not having' excepted to the report, was concluded by it. Ibid. 68. An executor is not bound by his inventory, though it affords strong evidence against him. Yarborouqh v. Harris 3 Dev. 40. 69. A special administrator, in an action by the general ad- ministrator, may show that property which he received and inventoried, as belonging to the intestate, is in fact the property of a lunatic, of whom the special administrator was appointed guardian, alter the repeal of his letters of administration. Ibid 70. In a warrant against an administrator, jud dered that the plaintiff recover his debt and costs, and. : entry made, that the defendant pleads, "retainer, ful tered," -V was held that the justice had power to try that he had negatived them, that the judgment was a solute, and that the non-payment thereof might beassignedas a breach of the administration fond. Ile.'>v. A .- Dev.] 251. (It seems that it does survive now, see Rev. (.'ode. , ■!,. 4g sec. 42.) 74. In no rase is the executor of an administrator liable, at law, to the creditors of the intestate, though, upon a proper casi •. 592 EXECUTOES AND ADMINISTRATORS.— IX. he may be made responsible in equity. Ibid. (See Rev. Code, ch. 46' sec. 42.) 75. An execution de, bonis propriis, where the judgment affects the assets only, is void ; and the fact that the costs, tor which the administrator was liable, were included in the execution, does not render it valid. Cdtraine v. McCain, 3 Dev., 308. 7(1 A judgment quando does not alter the dignity of a debt, nor fix the defendant with assets; and as to a sci./a. upon it, he may show that he has paid subsequent assets upon a debt of higher dignity, it follows that payment of a judgment quando upon a simple contract debt, after notice of an outstanding bond, does not protect the executor against the latter. Bountreev. Sawyer, 4 Dev., 44. 77. A plea of an outstanding bond and no assets ultra, is no defence to an action of assumpsit for rent due upon a parol lease, the latter being of equal dignity with the former. Hubbell v. Thurston, 4 Dev., 502. 78. A payment by an administrator of the assets of his intes- tate to the next of kin, within less than two years after his qualification, and without taking refunding bonds, will not sup- port the plea of fully administered against a non-resident credi- tor, who has brought his suit within three years from the time when the administration was taken. McKinder v. Litilejohv, 1 Ired., 66. (See Rev. Code, ch. 65, sec. 12.) 79. Under the act allowing executors and administrators nine months before they are required to plead, they can no more avail themselves, under the plea of plene administravit, of a voluntary payment of a debt alter notice of a writ sued out, than they could before the passage of that act. Whiter. Arrington, 3 Ired., 166. (See Rev. Code, ch. 46, sec. 33.) 80. Where an administrator has returned, in his inventory, a debt as "desperate,'' it is not necessary for a creditor suing such administrator, to show that the debt was due to the testa- tor. It is sufficient for him to prove that the debtor was solvent. in order to throw upon the administrator the burden ot showing that the debt could not be collected. Huntingdon v. Spears, 3 Ired., 450. 81. If an executor, at his own sale, procure an agent to buy for him any part, of the property of his testator, and then re-con- vey it to him, such executor shall account for the full value of such property, or for such higher prices, as he subsequently ob- tains for it, above the amount bid by his agent. Ford v. Blount, 3 Ired., 516. 82. It is well settled in this state, that, after a suit by a cred- itor, an executor cannot prejudice him by a voluntary payment of another debt of equal dignity. And, it is also well settled, that after a plea in one action, the executor cannot prejudice the plaintiff therein by availing himself, as a defence for the want EXECUTOKS AXD ADMIXISTBATOBS.— IX. 593 ts, of a judgment in another action .subsequent to the plea in the first HaUv. GuTLy, 4 Ired., o4.">. 83. The plea ought to state the assets truly as they existed, in the cine ease at the time of the suit brought, and, in the other at the time of the plea pleaded. Therefore, an executor cannot plead, as a plea puis darrein continuance, judgments recovered against him and no assets ultra. Ibid. : he reason for this rule is stronger in this State than in !. because here the executor is allowed nine months from dificatiou before he is compelled to i Head. And more es- pecially ought this rule to In- enforced, when the justice of the plaintiffs claim was admitted at first, and the only contest was about the assets, and the defendant asks to be permitted to plead. nit nee, after six year's litigation of the question 85. Only fc] tl .in which a person lias a beneficial ha- nd not those which he holds in trust for an- Green v. Collins, " Ired., 139. 86. An agreement between counsel that, in an action at law r, the j try might enquire as to equitable, as well as li gal assets, must be inoperative at law. as the court can- not assume a jurisdiction which the law does not confer; and. i ial distinction between the nature plication of legal and equitable assets. Ibid. NT. Aii executor is not answerable in a court of law, as for a devastavit in relation to equitable assets, unless so far as these are affected by the act, Rev. Stat., ch. 4(5, sec. 22. Ibid. (See Rev. Code. ch. 46; sec. 32.) 88. If an executor refuse to call upon the trustee of a legal es- tate, the entity of which is alleged to be in his testator, tin.- on- ly tribunal to decide upon the defaultsis-a court of equity. Ibid. 89. In the administration of assets, justices' judgments are to In' paid before bonds and notes: but as they are not matters of record, of which the executor or administrator is bound to take notice, actual notice of them must be given by the creditor. State v. Johnson, 7 Ired., 231. '.)(•. ilc dormancy of a judgment does not at all affect its dig- nity, in the administration of assets. IhiJ. 91. A brought a suit against the administrator of B, the prin- cipal, and C, the surety on a, note, and, at tin- return term, en- tered a nol. pros, as to the administrator of the principal, and toek judgment against C alone; who, having paid the debt, sued tlio administrati r of 1'.. his principal, but he, in the mean time. had disbursed all the assets in the payment of debts of equal dignity with that of A; and it was held that the administrator in: 1 1 committed no dt castavit as to ( '. because, as surety, he had no other rights than A had possessed, and that A. having relin- quished his lien upon the assets of B, by discontinuing his suit 38 594 EXECUTORS AND ADMINISTRATORS.— IX. against his administrator, the right of the surety, as the substi- tute of his creditor, t< > obtain priority, could only accrue from the commencement of his, the surety's, action against the admin- istrator of B. GoUruinc v. Spurgin, 9 Ircd., 52. (See Rev. Code, ch. 110, sec. 4.) 92. When an administrator, after a delay of nine months, al- lowed him by the act, Rev. Stat, eh. 46, sep. 25, pleads to an action the want of assets, lie has a right to give in evidence a judgment confessed, prior to the lime when the plea is pleaded, without regard to the priority of the time in bringing the suits. Bryan v. Miller, L0 [red., 12'.)' (See Rev. Code, ch. 40, sec. 33.) 93. An administrator is protected by judgments rendered against him, within the nine months allowed him to plead, though in suits commenced after that in which he pleads them. Terry v. Vest, 11 Ired., 65. 94. A surety to an appeal, by a party who dies pending the suit, has no lien on his assets, until after he has paid what, by the judgment, lie was found to he liable for as surety. Green v. Williams, 11 Ircd., 139. 95. Upon the death of an administrator, the duty of settling up the estate devolves upon the administrator de bonis 11011. The representative of the first administrator has nothing to do with it, except to account for and deliver over, to the administrator de bonis non, such assets as remain undisposed of. Hence, creditors cannot sue him directly, nor have they a right of action on the first administrator's bond ; for the bond does not vary, nor add to, the duties or liabilities of an administrator, but merely in- creases the security for the performance of his duty. Fen Baxter, 12 Ired., 64 96. A judgment obtained by a creditor against the adminis- trator debonis non, ascertain] nnt of his debt, hut de- claring that he has no assets, will not vary the principle, so asto enable him to sue on the first administrator's bond. Ibid. 97. Where, alter an appeal to the supreme court by an admin- istrator, defendant, he dies, ami there has been anadmini: tration ,/, I , is non granted, if there he no error, the judgment is. .that there was no error in the original judgment, and that the plain- , iff 1: cover the damages and costs against the administrator de bonis non, to be levied debonis intestati, and also, against the sureties for the appeal. If the plaintiff cannot thus obtain sat- isfaction, he must proceed either by sei. fa., or action of debt, on tlie judgment against the administrator de bonis non, in order to eh.ove him therein with assets; for the question of assets cannot be put in issue upon a sci.fa. to revive a suit before judgment. Borden v. Thorpe, 13 Ired.', 298. 98. It has been the practice in this state, when the defendant dies, while a cause stands on an issue, to allow his executor, when brought in, to plead a want of assets, but it is a practice EXECUTORS AND ADMINISTRATORS.— IX. 595 tolerated among the profession for their own convenience, and has passed suh silentio, but cannot be sustained if objected to. Ibid. 99. A a /. fa. against an executor, before final judgment, is merely to make the executor a party to the record, and though the judgment be against the executor, it is not a judgment fixing him with assets; a second sci. fa. is necessary for that purpose, and in it he may plead a want of assets, or make any other de- fence, which he might have made, if sued on a judgment against the testator. The onlyinstance iawhicha plea san be i dmitted, is that of release, or satisfaction, since the last continuance. which, iron necessity, would probably be received upon a proper case shown, as, indeed, they might have been pleaded by the original defendant. Ibid. 100. In no instance has the executor of a defendant the right to make a personal di fence, exc ipl only to deny his repres ta- tive character, which may be summarily determined by the court, or by a collateral issue. Ibid. 101. If, on an appeal to the supreme court, the judgment be- low be not reversed, the actual judgment here must be for the damages assessed de bonis intestati, and against the sureties for the appeal. Ibid. 102. An executor must have distinct notice, within a re able time, of a creditor's demand for funeral charges, the amount due, and the articles furnished, before lie can be sued for it. Ward v. Jones, Busb., I'll. 103. "Where the account sued on was composed of many ' a part of which were articles furnished for the burial, and the hoi was presented to the administrator for payment, i , h: at the fact of the defendant's having seen the article's purchased, and iving known for what purpose, (though he knew m price charged,) and the further fact, that he said "he would havi paid it. if the plaintiff : count right," furnish no evidence of such notice as the law requires. 104. Notes taken i y an e Lto p ty debts, are not assets until they are due and collected. As, wh n an executor, ui lei ord r of court, sold slaves on a credit of six months, and having been sued by a i tookti I > plead under tl 'I at the time of ] I d, the said o< were no1 due, nor any pari oi them collected, it was held that the plea of " ' was, by these facts, sustained. McKay v. Flowers, Busb., 211. (See Rev. Code, ch. 46, sec. 33.) 105. An administrator of a d scea - d sheriff, who is authorized, by a special private act of assembly, to collect arrearages of taxes, is liable on his administration bond, for the amounts called for in the tax lists of those years, for which he is thus authorized to collect; and this responsibility is not varied by the fact that, at the time the act was passed, the administrator was only a 596 EXECUTORS AND ADMINISTRATORS.— IX. special one, and did not become the general administrator until afterwards. Morton v. Aslibee, 1 Jones, Ml 2. 106. Where such administrator dii's before his administration is completed, his administrator is liable to the administrator de bonis noti of the deceased sheriff, for the breaches of the bond of Ins intestate. Ibid. 107. Where the first administrator of the sheriff had been his deputy, and had tax lists to collect, as such, fur certain districts, and failed to collect them, he was bound to have made good those amounts to his intestate, while acting as his administrator, and not having done so, his administrator is liable for the same to the administrator de bonis non of the sheriff. And the admin- istrator of the deceased deputy cannot allege the inability of the deputy fa- want of means, to account to the estate lie repre- sented as administrator, without suggesting and proving such inability. Ibid. IDS. The administrator of one, who was indebted to him on bills of exchange, payable to him as "cashier" of a bank, lias a right to retain against creditors of no higher dignity, although such bills were due from the intestate as copartner in a firm, and the assets were of the intestate's individual property. White v. Griffin, 2 Jones, 3. 109. The claim which a purchaser at execution sale has against the defendant thereto, on account of a defective title to the property sol , is but a simple contract debt, and an executor who pays such a claim, in preference to a judgment creditor, is guilty of a devastavit. Laws v. Thompson, 4 Jones, 104. 1 1( ). A purchaser at an execution sale, who gets a defective title, has no right 'to take the place of the creditor by substitution, and thus to bring to his aid, as against other creditors of the intestate, the dignity of his creditor's debt; for equity never in- terferes against creditors. Ibid. 111. No action can be maintained against an executor, as ex- ecutor, for money had and received by him after the death of his testator. Haiti ■_,■/ v. U'eeler. 4 Jones, 159. 112. Where a warrant has been brought against an adminis- trator for the debt of his intestate, and the justice, before whom it is returned, renders a judgment against him individually, it is error, for which a recordari, in the nature of a writ of error, is the proper remedy. Hare v. Parham, 4 Jones 412. 11."). The general rule, in such a case, is simply to reverse the false judgment; but where it appears the plaintiff was entitled to a judgment against the assets in the hands of the adminis- trator, the supreme court will order the case back to the supe- rior court, that the question of assets may be tried. 1 'aid. 114. A creditor cannot charge sa a devastavit, in an adminis- trator, an act done by his consent and with his concurrence. Cain v. Haivlcins, 5 Jones 192.. EXECUTORS AND ADMINISTRATORS.— IX.-X 597 115. An action will lie against an executor for an injury done by his testator; for wherever an action could have revived against an =executor, it may be brought originally against him. 6 Jones, 60: 116. An inventory filed by an executor is only prima facie evidence of assets against him, and he has the right to rebut it by proof. Hoovt r v. MiU< r, 6 Jones 79. 117. An action will not lie against the executor oi an admin- istrator, for a demand against the estate of the hitter's inti but administration a\ bonis non must be taken on the estate of such intestate, before it can be reached. Duke v. Fen Jones 10. 118. It is not necessary tor a creditor of an estate, to obtain a igainst the administratoi i g an inistration bond for the debt. / tri Jdand v. 242. 119. if an death, ■t him in th< sin settling ! ■ ted te, and not . him as e.-. 426. .Murph., 110. 6. The tender of a refunding bond is not a condition precedent to a suit upon the administration bond, by one of the next of kin: and this is certainly so. where it appears that the giving of a re- funding bond was not (he obstacle to a settlement by the ad- ministrator. Mayo v. Mayo, 2 Hawks* 329. 7. The statute of 22 ami 23 Charles II, givingto thehusband the whole of the personal estate of his deceased wife, wasonlyin affirmance of the common law. Hoshins v. Miller, 2 Dev:, 360. 8. Where the same person is administrator, anil, also, guar- dian of the next of kin, his returning an account of his adminis- tration, and acknowledging a balance due his ward, is not a per- formance of his administration bond; but it is otherwise, if the money to pay the balance is identified, and retained by the guar- dian as the property of his ward. Harrisonv. Ward, 3 Dev., 417. 9. Y\ I i is rightful in one capacity, and wrongful in another, it is taken to be in the first, until the contrary is shown. Bid. 10. Where an administrator procures himself to be appointed guardian to the next of kin of his intestate, but does not return an account as guardian, or in any way designate the property of his ward, so that it can be identified, the sureties to the ad- ministration bond are not discharged. Clancy v. Carrington, 3 Dev., 52!). 11. Courts of equity will control the unreasonable exercise, by an executor, of a power or discretion, which may affect the in- teresl of another person, lint a court of law is bound by the terms of the will, or other instrument, creating the power or dis- cretion. Cloud v. Mo/rtin, 1 Dev. and Bat,, 397. 12. A court of law will not entertain a suit against an execu- tor, or an administrator with the will annexed, for the non-per- formance, or improper execution, of a discretionary power given in the will. Therefore, where a testator directed that his grand- son should be " raised, taken care of and educated, " " at the di- EXECUTORS AND ADMINISTRATORS.— X. 509 rection and care" of hi* sun .Tames, it was Juki that au action would not lie on the bond of the administrator with the will an- nexed, for the expenses of such education, though the son James was one of the administrators. Ibid. 13. The clause in the condition oi a bond, given by an ad- ministrator with the will annexed, which provides that the obligor shall well and truly deliver, and pay over, all the rest and which shall be found due on his account at the close of his administration, "unto such person . i spectively, as the same shall be due unto, pursuant to the true intent and meaning of the acts of the general assem- bly, in sue': i and provided," is broken, both in letter and in spirit, by a refue ■'■■ d of the administrator with the will annexed, to pay leg Lane v. Peoples, 1 Dev. and Bat, '.). 1-4. An executor or administrator may I ant by petition, or bill in equity, by the legatees or next of kin. before the expiration of two years from the time of probate or adminis- tration granted. The ad compels them to settle within that time, but does not authorise them to* ut without The court, to whom the petition or bill is presented, can prevent any pr i injustice to ' :utor o or! Hobbs v. Giaige, 1 Lred., ^i:'. 24.) 15. iunt upon a petition or bill against an executor or adm charged w ith n ■ he had not collected, or whic aot, by reasonable dili- been abletocolli et. As to matters, where it was doubtful .■ he could collect or not, th I e left to a future it, the plaintiffs, in the mi antime, taking a de for what was certainly i 16. kVhere the a as or administral | - or bill to account, sets forth a joint receipt, sioner is not required to re] hat i th ely. Ibid. 17. It is not a good exception to a i rt, that the pn b lee made to a petition i being ai petition or bill Lts< If. 18. Where one of several joint legatees is n >t a pasty com- plainant in a suit for the legacy, and no process is served on him, nor an i m assignedfor this omission, the other legatees sustain their bill or petition. But the supreme court. of. dismissing the petition or bill, will remandit To the court below, and direct the plaintiil'-s to pay the costs of the supreme court. Ibid, 19. In an action upon the bond of an administrator, appointed by a court in this state, he can only be made accountable for the assets found within this state, &r the administration granted in 600 EXECUTORS AND ADMINISTRATORS.— X. this state gives no authority to administer goods in another state pr government. Governor*?. Williams, 3 (rod.. 152. 20. Where there was a bequest of property to the heirsof S. W., but thatnone of it should be sold, but all kept until the said heirs should com'- W. should die, it m \ bhat a payment by the executor to S. W. in his lifetime, though he was poor and required the properly for the support of his family, did i m iiis liability to the children of S. W., after the occurrence of the events mentioned in the will. v. CoweU, 3 Ired., 323. 21. Where an absolute interest in iroperty is given, with a good i I tion over, on a certain event, the executor of the first taker will not be responsib or next of kin, when the propi ion the ha] of the s] nt. Robards v. J I., 53. 22. A sing! by more than one tors; and in d ■ claring the tria : . 397. 23. The con I entertain - which constitute the mass or resi i lei its, requires thai should be so brought, as to take all the accoun the whole estate, by the dec y be made therein. Amis . 2i9. 24. Y, I ietrator dies without having fully s of his intestate, an action will not lie o for I ! ; s share oi the estate against the a dministrator, but must be br the ad- ministrator i bonis non of the original intestate. Si v. Johnston, 8 Ired., 381. 25. Where assets have remained in the ham ol a i ainis- trator more than seven years, unclaimed by the next of kin, and he Iministrator dies, the trustees of the university cover in their own name from the representative of such admin- The ai i ts can only 1"' recovered by an administrator . n, who is immediately answerable over to the tn provided no claim be set up on the part of the next of kin. State v. Johnston, 8 [red., 397. 26. Where personal property is left to one for life, remainder to others, and, after the death of the tenant fur life, it comes to the possession of the administrator of such tenant, those enti- tled in remainder cannot sue the administrator by a petition in a court of law, under the statute, Rev. Stat,, ch. 64, sec. 5, but must proceed in equity, because no such fiduciary relation, as EXECUTORS AND ADMINISTRATORS— X.-XI. 601 that contemplated by the statute, exists between the parties Pool v. Davis, Hi fred., 310. (See Rev. Code, ch 64, sec. 7.) 21. The next of kin cannot maintain an action on the admin- istration bond, after the death of tl e ai ministrator, because he : to take into his possession and distribute certain negroes, to which his intestate was entitled ; becai passed tor 'It bonis rum, and are to be by him distribu- ted. States. Britton, 11 [red:, 110,, S. P. State v. Moore, 11 Ii an administrator has a r res and sell or Lire them out, if necessary to pay debts, yel if ii. i ound to keep them : tition lor partition with the other next of kin, it delivery of the si i, and is a disch h ; the propi ii . ai Iministrator plead a r bond : tate brown on the . ■ . ed, in a will, which dministrator, upon •ill admini itrator to i ■ ' ■ ■ [ of the i ol : a :tion and probate, won ject hi ; for it, although during such olel.r , whereby the debt was lost. Hartsji 31. 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 p ' debts, being a Burplus over and a ! to pay such debts, which money : law to persons to whom the land was devised, it icax held- that the administrator won with the will annexed of the original testator, and not the devisees^ was the proper person to i v. I ' - . 8 Jones 111. 32. - by the administrator, lor the support of his ildren were, in the above ease, held not to be for him in the settlement of the estate. Ibid. See (Evidence — Admissions, declarations ami acts of parties, Erivies and'others, 18.) (Executors and Administrators — of suits y executors and administrators, 18.) XI. OF REFUNDING BONDS TAKEN FROM LEGATEES AND NEXT OF KIN. 1. The refunding bonds, which executors and administrators 602 EXECUTOES AND ADMINISTRATORS.— XI.-XIV. may take from legatees and next of kin, are taken solely for the benefit of creditors. Therefore, an executor or admistrator, who has paid to a legatee or distributee more than he was entitled to, cannot, for his own use, recover the excess so paid, by an ac- tion on the refunding bond given by such legatee or next of kin. State v. McAleer, 5 Ired., 632. 2. Where, after a division of slaves among the next of kin, made under an order of court, the administrator assented that each might take the share allotted to him upon his giving a re- funding bond therefor, which condition was not complied with, it washeld that the administrator might recover from one of the next of kin. who had got possession of his share; and that such ion was not adverse, so as to give effect to the statute of limitations. Howell v. Johnston, 4 Jones 502. See (Executors and Administrators — Ut their liability to leg- atees and next of kin, (!.) XII. OF THE. EFFECT OP MAKING A DEBTOR EXECUTOR OR ADMINISTRATOR. 1. If an obligee make his will, and appoint one of several of obligors his executor, it is a release or extinguishment of the debt, as to all the obligors; bat where the court appoints one of the obligors to be the administrator of the obli ■ ■ ; ; only sus- | the debt on the bond, during the administration of that idmini itrator, and does not release or extinguish it. Ferebee v. Doxey, G Ired., 448. XIII. REMEDY FOR THE SURETIES, WHO MAY BE IN DANGER OF LOSS. 1. A county court has power to take a new bond from an ad- ministrator or executor, forth I if his former sureties, un : der the act, Rev. Stat., eh. 46, see. 30, although no petition has ad verified on oath, and no summons has been issued t the administrator or executor, the latter being present and not requiring these forms to be observed. Governor v. Gfow- an, 3 Ired., 342. XIV. OF THEIR CLAIM To, OR LIABILITY FOR, COSTS. 1. Administrators are not personally Habile for costs, incurred in a suit brought by their intestate, and prosecuted by them af- ter his death, they having no assets. Arrfaigton v. Coleman, 1 Murph., 102. 2. When executors sue in aider droit, they are not liable for costs de bonis propms. When they fail in the suit, having no assets, costs are lost, unless they give bond and security for the costs, and then the sureties arediable. But -when they sue in EXECUTOES AND ADMINISTRATORS.— IV. 603 their own right, they are liable for costs, though they name themselves as executors. Ibid. 3. Where an executor appeals from the judgment of the coun- rt, and gives bond with security for the appeal, the bond is binding, and. on a sci. /a. upon it. judgment may be entered for the debt and costs. Hostler v. Smith, 1 Murph., 103. 4. An executor, who had established a will, attested by one witness only, as a will both of realty and personalty, but, upon an appeal, established it as a will of personalty only in the supe- rior court, was ordered to pay costs for his folly, in attempting to establish such a will as one of realty. Warren v. High, 1 Murph., 436. 5. Whenever an administrator establishes the plea of " fully administered," he is entitled to judgment of execution for his costs against the plaintiff, immediately. Wellborn v. Gordon, 1 Murph., 6. A judgment quando is one in favor of the defendant, who is therefore entitled to his costs. Battle v. BorJce, 1 Dev., 228. 7. Upon . the defendant is allowed the costs 1 in an action, brought against him in his own right, for ersion of chattels, which he bona fide thought were of the of his intestate. Leigh v. Lockwood, i Dev., ."»77. 8. Where, uponi 'ministravit, the defendant was fixed ,. , as to part of the demand of the plaintiff, the ers his costs. Executors, when they are defendants, have generally no privileges as to costs, and are subjected to ea to the whole action is found in their favor. 7\7 d, 1 Dev., 581. 9. Where the guardian of an infant distributee sued the ad- minis; rator < if the estate, the very day he was appointed guardian, ami without any demand upon the administrator, who was guilf y of no default, but promptly rendered an account, which was G iund to b corn ct, it was held that the guardian, ami not tin/ admin- istr'af i' should pay the costs. Griffith v. Byrd, 2 Ired., 72. 10. One who sues as administrator, or executor, is not liable for costs ,/, bonis propriis, if he tail in his suit. Collins^. Boberts 6 Ired., 201. 11. Where an executor arrests a defendant on a ca. sa., sued out on a judgment obtained by Ins testator, and afterwards dies, and the pro, ro dings in the ca. sa. are discontinued, and then administration dc bonis non, with the will annexed, is granted, this administrator is not liable, in any way, for the costs of the proceedings on the ca. sa. Hampton v. Cooper, 11 Ired., 580. 601 EXECUTORS AND ADMINISTRATORS.— XV. XV. OF THE COMPENSATION, TO WHICH EXECUTORS AND ADMINISTRATORS ARE ENTITLED. 1. Ail administrator is not entitled to claim any thing- for loss of time and personal services, though lie will lie allowed his ne- cessary expenditures. Schaw v. Schaw, Tay. 125, (76.) S. C. 2 Hay., 104, (265.) ■ 2. The office of an executor or administrator is not intended to be one of profit, and nothing more than a bare compensation can be allowed. It is to be proportioned to the care and atten- tion bestowed in each particular case, and, at all events, is not to exceed fh . on each side of the account. Potter v. Stowe, 2 Hawks, 30. 3. Payments of portions of the next of kin, whether before, or at the close of tin 'ation, are not to be considi expendi n which a commission can be allowed. Ibid. 4. A' cannot retain his ainst a credi- tor or a legal i, until they have been allowed by the county or in a suit for the i t1 of his accounts; henci by a jury upon the tri if fully administered. Hodges v. An stron . 3 Dev. 253. 5. The jury cannot allow commissions to an < ithout of the count] oti y that this order should bo made, before the commencement of the suit against the executor, hynch v. Johnson, 11 Ired,. 22-1. 6. In a suit by legatees or distributees against an executor or administrator, the supreme court lias the power to review-the decision of the court below, in the allowance of commissions: and this power may be exercised, not only where the allowance has been made upon a wrong principle, as in considering a re- tainer or a delivery over of slaves a. disbursement, but also when the commissions allowed below are, clearly, either inade- quate or excessive. Shepard v. Parker, 13 Ired., 103. 7. Where the exercise of discretion is in reference to a raattei arising collaterally, and which does not present itself as a ques- ;/,," cause, the decision in the court below is conclusive, as in the case of amendments, &c; but where the discretion is ex- ercised in reference to a question in the cause, the appeal, bring- ing up the whole case, necessarily brings that up; and the allowance of commissions to executors and administrators is, in every case, a question in l/ic cause. Ib'ul. 8. Commissions may be allowed on a note due the testator or intestate, delivered over as a payment in cash, by the executor or administrator, to a legatee or distributee. Ibid. EX POST FACTO LAW.— EXTORTION, ETC. 605 EX POST FACTO LAW. See (Constitution — Construction of various clauses of the con- stitution, 5-25-26.) EXTORTION. 1. It is extortion in a clerk of the county court to take eight shillings for a guardian 1 mi id. although he was entitled to six shillings for it, and two shillings for efrery order foreign to a pause in court. Stale v. Dickens, 1 Hay., 406. (468.) 2. It is no excuse for an officer, who takes more than his legal fee, that he did it through mistake of the law, or under improper advice. Ibid. ^v>- (Indictment — Form ami matters relating thereto, 4.) (Indictment — Of the trial, verdict and judgment, 12.) FALSE TOKEN. See (Indictment — When an indictment will lie, 25-79-80.') (Indictment — Form and matters relating thereto, 50-51-144- 160-161.) FACTORS. See (Agent and Principal — Factors.) (Agent and Princi- pal — Of the rights of an agent as against third persons, 1-2.) 606 FEES.— FELONS.— FENCES. FEES. See (Salaries and Fees.) (Costs — What costs to be taxed, 1- 2-3-9-13.) (Guardian and Ward — Of the liability of guardians and their sureties, 6.) (Jury — Liability of jurors for non-at- tendance.) (Recognizance, 13.) (Militia, 2.) (Sheriff — Compen- sation to sheriffs.) FELONY. 1. An intent to commit a felonious act, where the intent is only a misdemeanor, merges in the felony, if the act be commit- ted, but not if the intent alone is a felony of the same grade with the act itself; and the prisoner may be convicted of either, upon any competent testimony, that satisfies the jury of his guilt of the particular offence charged. State v. Jesse. ;.i Dev. and Da1 FENCES. 1. Upon an indictment under the act relating to fences, it is the province of the court, where the jury have ascertained tin facts, to pronounce whether these facts show that the fence was such an one, as is required by the statute, or whether the naviga- ble stream, water course, ic. wis sufficient in lieu of the fence. States. Lamb, 8 Ired., 229. (See Rev. Code, ch. 34, sec. 41, and eh. 48. sec. 1.) 2. A defendant may be indicted and convicted under the ad of 1846, forbidding the removal of fences, &c, if it appear that the ground, which the fence surrounds, was in a course of prepa- ration for making a crop, or 'used in the course, of husbandry, though no crop was actually planted or growing on it, at the time of such removal. State v. Alien, 13 ired., 36. (See Rev. Code, ch. 34, sec. 103.) 3. The act of 1846, ch. 70, forbidding the removal of fences, &c, does not extend to persons in the rightful possession of the premises, as, for instance, quasi tenants, occupying the same by the consent of the owner. Hence, where A had dower in land FENCES.— FERRY AND TOLL BRIDGE. 607 adjoining the land of B, and one of the lines of the said dower land ran through a held, a part of which was the land of IS, and which her husband, during his life, and she, after his death, had cultivated with the consent of B, and she had the fence on B's part removed to her own land, it was Held that such removal was not indictable under the act of 18413. State v. Williams^ Lusk. 197. 4. Proceedings under the' act concerning fences, against the oc- cupants of premises insufficiently fenced, must strictly pursue the act. The report of the freeholders, in such a proceeding, should only embrace damages for the particular injury complained of in i In- warrant, and the judgment of the justice should be for such damages only. Bailey v. Bryan, 3 Jones, 357. (See Rev. Code, eh. 48, seen. 2 and 3.) 5. It is not indictable for one' to remove a fence from his own land, which had been unlawfully put there by another, although it partially enclosed a cultivated held belonging to the other State v. HeadricJc, 3 Jones, 375. 6. In order to subject a person to the. penalties of the -set oi 1846, lor removing a fence, he must be guilty of a trespass. Ibid. 7. A planter who has not a fence, nor any navigable or deep water to serve instead thereof, about his field, while in cultiva- cannot recover for a trespass committed by cattle, 1 or other livestock, on such field. Jones v. WHtherspoon, 7 Jones, 5S5. 8. Vfhere a person removes a fence from land, of which he has neither the possession, nor the right of possession, he cannot. upon an indictment for the offence, under the Rev. Code, eh. 34. !. raise a question as to a right of entry, nor is it any de- fence- to him, that he did the act to bring on a civil suit, in order e the title tried. Statt v. ( raham, 8 -ion,.:. 397. te and other live stock, 2—4—5-6-7.) (Costs — In civil pn iceedin ge ; when plaintiff pays costs. 7. ) (Indictment — When an indictment will lie, 51.) (Evidence — In criminal proceedings and ;. -21.) FERRY AND TOLL BRIDGE. 1. Whether the county court, after establishing one ferry at a particular place, has aright to establish another at the same place, or so near it as to draw awav the profits, q were. Anony mous, 1 Hay., 457, (526.) 608 FEEEY AND TOLL BRIDGE. 2. The county court may grant to a man the privilege of erect- ing and beepinga terry, though hedo not own the land on either side of the river or creek, over which the ferry is established. Banner v. Dowdy, 1 Murph., 279. (Overruled, see Pipkin v. Wynns, 2 Dev., 402.) o. Individual interest ought not to be sacrificed, but for the purpose of advancing a clear and unequivocal public benefit. Therefore, where an ancient ferry has been established, and duly kept up, the court will not erect a new one so as to injure the old, unless it be evident that the public sustains an inconvenience from the want of it. Beardv. Low/, 2 Car. L. E., Hi). (167.) 4. The owner of an old established ferry hath aright of action against anyone who keeps a free ferry, or one fur which he charges toll, if he have no authority from the county court to do 80, and thereby injury be caused to the old ferry; and it matters not whether the count, in the declaration, charge profit marie by the defendant, or loss caused to the plaintiff, as a general verdict upon counts, charging each way, may be sustained. Long v. Beard, 3 Murph,, 57. 5. The exclusive right of keeping a ferry, and taking tolls, be- longs to the state; but she can giant the franchise to none but the owner of the adjacent lands, unless he refuses to exercise it, when it may be granted to another person; and, in the latter case, compensation must be made to the owner of the fee for the right to use the soil for that purpose, although there is a public road leading to the river on both sides. Pipkin v. Wynns, '2 Dev., 402. 6. An order of the county court, granting to one tenant in common, the exclusive right of keeping a ferry and receiving tolls, without default in the others, and without notice to them, is void. Ibid. 7. Although the county courts, in authorizing the erection of toll bridges, are required to laij uniform tolls, yet the owner of a toll bridge is not obliged to coUect the same toll from every per- son. He may levy what he chooses from each person, keeping within the rates prescribed by the court, or relinquish it alto- gether. Saunders v. Hathaway, 3 Ifed., 4<>2. 8. The county court of Perquimans has the same power, under the private act of 1838, ch. 11, in relation to the toll bridge over Perquimans river, at the town of Hertford, which, by that act, the justices were authorized to purchase. IbiiJ. 9. A conveyance of a tract of land, to which a ferry has al- ways been appurtenant, will carry the ferry as an incident, though it may not be mentioned in the deed. State v. WiUis, Bust)., 223. 10. A franchise granted in 1706 to a person, and his heirs and assigns, to erect and keep up a toll bridge over a river, and for- bidding the erection of any other bridge, or a ferry,, within six FERRY AND TOLL BRIDGE: 609 miles, and imposing a penalty of twenty shillings for every pas- b snger " si i o«rer^' the river in violation of the act granting the franchise, is not violated by a charter granted to a railroad com- pany, to erect a bridge across the same stream, within six miles of the toll bridge, and giving to such railroad company the pow- er to charge tolls, for carrying passengers along their road and across the river. McRee v. Wilmington and Rahiqh Railroad Company, - Jones, 186. 11. The county courts have no power conferred on them by law to build bridges over navigable streams, without requiring draws to be made, so as to admit the passage of boats and other craft navigating such streams. State v. Dibble, 4 Jones, 107. 12. The right of a ferryman to his toll is by the common law. an I every subtraction from bis profits, by carrying his custom- ers over the same stream, whether for payor not, is an injury for which he may recover damages. Taylor v. Wilmington and Jit, i -.'. ster Railroad Company, 1 Jones, '11',. 13. The custom :rs of a ferry are those wishing to go along the highway, el' which the ferry constitutes a part, and whom the ferryman would lie bound to transport, on being called on by ih in. audi) ; si ch persons as wish to go from one of the ferry landings to some point out of the highway. Ibid. 11. Th . Revised (ode, ch. 101, sec. 30, recognizes the ] law rem sdy, and further givesa penalty of two dollars, for every transportation of a passenger, &c, within ten miles of an established ferry, if done for pay. Ibid. 15. The object of the private acts in favor of William Dry, passed in 1764, and of Benjamin Smith, in 1784, was to effect a communication between the towns of Wilmington and Bruns- wick, by means of two ferries and a road across Eagle's island between them; and the customers of these ferries would he only- those designing to travel along this highway, or a part of it, and would not include a person designingto pass from one of the ferry Ian. lings to a point on the island not on the highway. Ibid. r 1C>. The Revised Code, ch*. 101, sec. 2.8", by a proper construc- tion, r | i res of the owner of a toll bride, not only to erect and keep in repair a draw sufficient for the purposes of a free navi- gation of the stream, but also to provide the means for raising it, and to have ii raised whenever steamboats, or other vessels. are p tssing it. Davis v. Jerkins, 5 Jones 290. 17. Where a ferryman received an unusual number of horses and mules, winch were mostly unconfined, upon his ferry boat, which was not provided with guards, and which had a spike five inches long sticking perpendicularly in the gunwale, and winch was not necessary in working the boat, it was heldtohe gross negligence, and that he was liable for the loss of a horse killed by falling on the spike, although the owner had agreed. 39 610 FERRY AND TOLL BRIDGE.— FISHERY. to take upon himself the risk arising- from the excess of num- bers. Wilson v. ShulHn, 6 Jones 375. 18. Whether a ferryman, as a common carrier, can make a valid agreement with a traveller to lessen his common law lia- bility, quaere. Ibid. See (Highway, -7.) (Landlord and Tenant, 21.) (Rivers" and creeks, 11) FISHERY. 1. No person has a several or exclusive right of fishery, of the navigable wati rs in this state. Collins v. Benbury, 3 lied'.. 277. 2. No person can be entitled to a several fishery, or the exclu- sive right of fishery, in any navigable water, unless en i h right < rived from an express grant by the sovereign power, or perhaps, by such a length and kind of possession, as will cause a presumption of such grant to arise. Collini v. Benburn, 5 (red., 118. ."). The mere circumstance of fishing the waters at any p lar place, no matter for how long a time, raises no presumption of such a grant, because the , fishing , prima facie, only a right, which belongs to him in ci rith .-.: others. / id. 4. Where, in a lease for a fishery, it is stipulated that the I or, as a consideration for the lea entitled to offal : the less* es may pu1 offal, there be cut, and no general custom pri . up at such fisheries were usually cut. i- . r >. Nothinj i .■ and is ( ( l)f Met d i r : old for that puipi / ' nant, and may be removed by him during the ti in, or af 'its >ir; i i and, in the latter case, int will be a tresp isser, but only as to his i ntry. P< mbt r- ton v. King, 2 Dev, ".7i : . 2. Between the truant and Ids creditors, a fixture, (as in the removed withoutinjury to the premis -. is, until severed, a pari of the realty; therefore, by a constable is a nullity, and a levy by a sheriff is as will give him a special property in it. Ibid. '■'<■ \^ i ighl 1 i s sver a fixture from the d, until that ri : ! >! be exercised by him, or an officer hav- ing a i • . icution against him, the thing is merged in the soil. E .1 lie ten him befor ve se, coul ; nol bri tinue. Although the law may confer upon him the po ■ to re-co the fixture into a personal chattel, until the power , : ! ! ■ | | ' ■ brandy, and a large copper ket- : ling food for hogs, incased in brick and mortar I pass with 1 he land sold to a pur- . Law, 337. but uot nailed to the sleepers, as gin hou I used to sp id ; cotton e land. It would In- oth- erwi - ■ r. ly laid th :re in piL j I ir s; fe keep- lot to be used with the hou FORCIBLE ENTRY AND DETAINER. 1. An indictment for aforcible entry and Retainer, upon the English statute of 21, Jac. 1, must specify the kind of term, from 012 FORCIBLE ENTEY AND DETAINEE. which the party is expelled, to authorize a writ of restitution; and the term must be unexpired at the time of the trial. State v. Butler, Conf. Rep., 331, (414.) S. C, Tay., 262, (115.) (See Eov. Code. ch. 49, sec. 5.) 2. The proceedings in an inquisition of forcible detainer being ot a civil nature, the court will grant a new trial, if the verdict be contrary to the evidence. Adams v. Robeson, 1 Murph., 392. 3. Neither by common law nor by statute ran an indictment for a forcible detainer be maintained, where the entry is both peaceable and lawful. States. Johnson, 1 Dev. and Bat., 324. 4. The entry, to authorize summary proceedings under the statute of 8, Henry VI, must be an unlawful entry, followed by a forcible detainer, and so stated in the inquisition, or it will be (plashed. Ibid. (See Rev. Code, ch. 49.) 5. Although an action cannot be maintained for the mere in- jury to the hens': or land, against one who has a right of entry. for entering by force, yet he may be indicted for the forcible en- try, on account oi the breach ofthe peace. Ibid. '(>. A purchas >r of land under execution may enter peaceably, or even break (pen the enter deer of a house and retain posses- sion, alt la nigh seme of the last tenant's goods remain on the premises. Ibid. 7. An indictment for a forcible trespass in entering a man's dwelling house, which dees not charge an expulsion from the house, or a withholding ofthe possession thereof up to the find- ing of the indictment, nor set forth the interest of the prosecu- tor, will not, in ease ol conviction, warrant a writ of restitution. State v. Bennett, 4 Dev. and Bat, 43. 8. In an indictment for a forcible entry into a dwelling house, it is not necessary to charge, or to prove, that tin: proprietor was in the house, or present, at the time ofthe violent dispossession. State v. Fort, 4 Dev. and Bat., 192. 9. Where the proprietor of a school employed a person as a steward and servant in the establishment, and assigned for his lodging rooms a house situated within the curtilage, but not connected with the dwelling house ofthe proprietor by any common roof or covering, and for which lodging rooms the steward paid no rent, it nut* held that the bouse occupied by the steward was not in law his dwelling house, but was the dwelling house oi the proprietor of tin- school, and that no indictment would lie against the proprietor for an entry and expulsion of the steward from such house, provided there was no injury to his person or breach of the peace. State v. Curtis, 4 Dev. and Bat., 222. 10. The occupation of a servant is not suo jure, but as a ser- vant and representing his master; and, therefore, it is the oc- cupation of the proprietor himself. But there may be eases, in which the master lets to his servant a tenement or part of his FORCIBLE ENTRY AND DETAINER. ' 613 premises on rent, in which the house and possession would pro- perly be laid as those of the servant. And even where there is no stipulation for rent, yet the premises occupied by the servant may be so far removed and distinct from those in the personal | ion of the master, that they may be deemed arid stated to be in the possession of the servant, in an indictment, for in- stance, for burglary. It would seem, from some adjudications, that in this last ease it may be laid either way. But these cases are to be regarded as exceptions; Founded on particular circum- stances: Ibid. 11. When an overseerin this State is placed on a plantation, he is net put into possession as against hisemployer; but the latter may. it' he think proper, turn him off and evict him from the upies: and tie- redress of the overseer is by action on the contract of the employer, and not by holding over that which was never in his possession for an instant, but as the ser- vant and agent oi his employer. Ibid. li'. In an inquisition and proceedings had before justices, un- der our statute of "forcible entry and detainer, " if the verdict of the jury set forth that "the relator was possessed as tenant for years of AB," that is sufficient without specifying what the term is. SherriU v. Nations, 1 Ired., 325. (See Rev. (.'ode. eh. 49., 13. An objection to an inquisition for forcible entry and de- tainer, that the relator has elected to proceed by indictment, is of no avail, as our statute does not give the justices any power to fine. Ibid. 14. When the proceedings on an inquisition of forcible entry and detainer, before justices, are brought up by certiorai to the t court, that court has no right to order a traverse (o be tried before it. as the traverst either has been tried, or might have- been tried before the jury required to be summoned by the justices below, and no appeal is allowed by statute, the remedy being a summary one. Ibid. 15. If the justices were guilty of misconduct in the trial be- low, either by receiving improper testimony or rejecting prop- er testimony, or otherwise, the superior court can correct this misconduct, but the affidavits to obtain a certiorari must state explicitly the facts, upon which the interference of the superior court is calico for. Ibid. 16. Upon a proper affidavit a mandamus, as well as a ctrtiorari, ■will be -ranted to compel the justices to return all the proceed- ing, a- They actually occurred. Ibid. 17. An indictment, for a forcible entry into the field of tin prosecutor, cannot be supported by evidence that the defendan entered peaceably into the- field, but while there threw stone against the house of the- prosecutor, situated adjoining the field tin- prosecutor at the time being in the house and not in tb field. State v. Smith, 2 Ired., 127. 614 FORCIBLE ENTRY AND DETAINER. 18. In a proceeding by inquisition for a forcible entry and detainer, before a writ of restitution can be awarded, the jury must find by their verdict that the party, f< ircibly dispossessed, had either a freehold or a term for years in the land, of the pos- sesion of which he has been deprived. Mitchell v. Fleming, 3 Ired., 123. 19. In an indictment at common law for a forcible entry, it is sufficient to prove that the defendant entered with such force and violence as to exceed a bare trespass. State v. PoUocJc, 4 Ired., 305. 20. Where a party, entering on land in the possession of another, either by his behavior or speech, gives those who are in posi ession just cause to tear that he will do them some bodily harm, it' they do not give way to him, his entry is esteemed for- cible, whether he cause the terror by carrying with him such an unusual number of attendants, or by arming himself in i uch a manner, as plainly to intimate a design to hack his pretensions by force, or by actually threatening to kill, maim, or beat those who continue in possession, or by making use of i plainly implying- a purpose of using force, against those who make resistance. Ibid. 21. In a case of forcible entry and detainer, a jn right to award restitution, unless the jury have found, by their verdict, that tic complainant had. in the land, either a freehold or a term of years. Without such finding, the justice may bind over the defendant to the court, to answer to an in- dictment for forcible entry; but, withoul sucb Ending, he has no jurisdiction to oust the defendant of his pi and put the complainant in; and, if he do so, he is himself liable to an indictment for a forcible entry. Stat v. Anders, 8 Ired., 15. 22. Where A had possession of a house, consisting of a main building and a shed, and locked the door of the shed, in which he had some tools, &c, leaving a tenant in possession, and went away, with an intention to return; and afterwards the tenant admitted B into the peaceable possession of the main building; it was held that B was not indictable for a forcible entry in break- ing into the shed, nd taking possession of that; for when the main body of the house ceased to be, in law, the dwelling house of A. each mom lost that character. Stale v. Pridgen, 8 In d., 84. 23. An indictment for forcible entry is good at common law, when it charges " that the defendant unlawfully, and with strong hand, did break and enter into a certain house of J. D., he, the said J. D., being then and therein peaceable and quiet posses- sion of the same." State v. Whitfield, 8 Ired., 315. 24. A forcible detainer is not indictable, where the entry was peaceable and lawful. And from the finding of the jury that the defendant "unlawfully, and with a strong hand detained," FORCIBLE ENTRY, ETC.— FORCIBLE* TRESPASS. 615 it cannot be implied that the entry was also unlawful. State v. Godsey, 13 Ired., 348. 25. Where, in an inquisition of forcible entry anil detainer, the allegation contained in the affidavit of the plaintiff in ap- plying tor th' remedy, and in the precept of the justice order- ing a jury, was of a forcible entry only, and the proof made out a Forcible detainer only, it was l«i\i S that the it will be re ; Watsonv. •■'■ , 211. 2:1. Wb iveaman illing house ofanother, who is absent at tl his arrival, and remains h. her and using insuiti i , urns, and he still then goes into the • ' h a club in his i ring and making the ow uer, and 'jell, - Jones, 468. tmon law for a I ry into B., and that M. B. i f irbi I for want of an aver- ment ' house, or 1 hat M. B. w h r, or other member of the family of A. B. State : See i il —l *f quashing indi itments, 1. ) FORCIBLE TRESPASS. 1. In an indictment fora riot and forcible trespass in entering a man's duelling house, he being in the actual possession thereof, and taking fr im his possession slav is and other personal prop- erty, ii is not necessary to show that the prosecutor had the right 616 FORCIBLE TRESPASS. to the property, or the right to the possession, but that he had, in fact, the possession thereof, at the time when that possession was charged to have been violently invaded, and any evidence tending to prove that possession is admissible. State v. Bennett, 4 Dev.'and I '.at., 43. 2. The violence necessary to supportan indictment fof a forci- ble trespass in entering a man's dwelling house, and taking from his possession personal chattels, will be sufficiently proved by showing that the defendants appeared in such numbers, and under such circumstances, as to deter the prosecutor from resis- tance, though there was no actual breach of the peace. And, in such indictment, the presence of the prosecutor must be proved, but it need not be shown that lie had hold of the chattels, it being sufficient that he was on the spot, lb'nl. 3. An indictment, charging a forcible trespass in talcing a slain deer, is not supported by evidence of the forcible taking of a deer-skin, severed from the bodyof the deer. Sfatev. Hemphill, 4 Dev. and Bat, 109. 4. In an indictment for any forcible trespass upon a dwelling house, short of a violent taking or withholding of the possession of it, it must be charged that the proprietor was in the house, or actually present at the time. Statev. Fort, -1 Dev. and Rat., 192. 5. An indictment, charging a riot andforcible trespass on the land of one, cannot be supported by proof that the land belonged to him, but was then in the possession of another, as his tenant. It ought to have charged the trespass to have been en the land in the possession of the latter. State v. Wilson, 1 Ired.. .'!2. (!. On such an indictment, it is only necessary to prove the possession of the prosecutor, ami that may he done by parol evi- dence, without the production of any paper evidence of title. Ibid: 7. In an indictment for a forcible trespass in taking away goods, it is not absolutely requisite to use the words agair.st his trill, it being sufficient to use words which necessarily convey the same meaning. And to constitute such a forcible trespass, it is not necessary that actual force be used, as acts which tend to a breach of the peace may amount to it. State v. Armfield, 5 Ired, 207. 8. Where three persons took away a slave from another, an old and feeble man, in his presence ami against his will, and lie was restrained from insisting on his rights In, a, com:; ton that it would be useless, and for want of physical power to enforce them, it was held to be a forcible .trespass, for which the parties were liable to indictment. Ibid. 9. An indictment for a forcible trespass will lie at common law, if the facts charged amount to more than a bare trespass. Hence, where the prosecutrix was in the peaceable possession, "with her family, of a dwelling house and its appurtenances, and FORCIBLE TRESPASS. 617 four persons entered the yard of the hottse with hostile or unkind feelings and manners, against the will of the prosecutrix, to injure and insult her. and refused to go away when she bid them, and lad a common purpose in so doing, and abetted each other, it ir is /< ''that suehaets and purposes rendered the parties liable tn an indictment for a forcible trespass. Slate v. Tolev\ i . 5 Ired., 452. 10. When the name of the county is mentioned in the margin of the indictment, and it is stated that the dwelling house, on which the forcible trespass is alleged to have been committed, ituate and being," this must refer to the county men- in the margin. / 11. Xo matter what an officer declares when ho seizes property, if he have a lawful process authorizing him to si ize it. he can not l>e indicted for a forcible trespass in making the seizure, v. Elrod, li Ired., 250. \2. The gist of tie.- offence of forcible trespass is the high- handed invasion of the possession of another, hebeingpresenl ;and the title isnotdrawn in question. State v. AlcCauless, '•! Ired.. 375. 13. If two persons be in tin- same house, the law adjudges the ; i sion to be in him, who lias the title: but not so, as by re- lation back, to make the other guilty oi a forcible trespass, when the entry was without force. Ibid. 14. At common law no trespass on chattels was an indictable i, without a breach of the peace; that is, either the peace must have been actually broken, or the act complained of must \ and manifestly have tended to it, as being done in the presence of the owner, to his terror or against his will. State v. Phipps, 10 Ired., 17. 15. The offence of forcible trespass must lie charged to have been done with a strong hand, ' forft," which implies great- er force than is expressed by the words "viet or mis." And to constitute the offence, there must be a demonstration of force, as with weapons, or a multitude of] pie, so as to involve a breach of the peace, or directly tend to it, or be calculated to intimidate or put in fear. Stale v. Ray, 10 [red., 39. 16. To make a forcible trespass indictable, some person must be in the house or on the premises, to cause the act complained of to amount to a breach of the public peace, or have an imme- diate tendency to provoke it: some person, who has a right to de- fend the possi -ion. to be provoked at its invasion. Statev. Walker, 10 Ired., 234. 17. The indictment for forcible trespass must charge who was at, at the time of the alleged trespass, and if, on the trial, it appears that such person was not present, the defendant must be acquitted. Ibid. IS. Where one, who is not on friendly terms with the owner of a dwelling house, comes there armed, and, immediately after (318 FOKCIBLE ENTRY. -FOREIGN LAWS. -FORGERY.. entering, uses violent and threatening language in the presence of the owner, and, on being forcibly ejected by an inmate of the House, again comes to the outer door and forces it open agarnsl the owner, who is struggling to keep it closed, he is guilty of a forcible trespass, although the ownei may nol have forbidden him in words, from entering. State v. Bordeaux, "1 Jones; 241. 111. To make a trespass for an entry on land ihdictabli , it must be committed manu forti, in a manner which amounts to a breach of the peace, or which, at least, would necessarily lead to a breach of the peace, if the person in possession were not ovei'awed by a display of force, and thus induced tp:£6rbear from resistance. 1.9.9, 4 Jones, 315. 20. Where one, having a right to inter on land in the p sion of a tenant at suff :nt with four others, and ae id building on the land outside of the tenant's enclosure, withoui i ivading his dwelling or molesting his enclosure, and without any display of arms, or actual breach of the peace, itwas held not to be indictable. / bid. 21. Whether, at the common law, one who has the right of en- try may no1 use fon to assert his right, is an un- on, I bv I. ■I'l [f iree break open the ] ib and take his corn ; guilty id1 be takin to be from tl ■ •Ml. See ( [n lii I ment — In win t case . ; il li". 3 1 1 , :tment— Form and matters n ' i (Tei ii, 21.) FOREIGN LAWS. !. : In ■■■ ■■ i ■■' ctci ite foreign law is an enquiry for the jury; but thai fad being- ascertained; its construcl and effect are qui si • to the court, State v. Jackson, 2 Dev., 563. I Evidence — Laws and legal proceedings in other state.- and countries.) FORGERY. See (Indictment — In what cases an indictment will lie, 17-32 FORGERY.— FORNICATION AND ADULTERY. 619 33-72-74.) (Indictment — Form and matters relating thereto, 6-17-23-59-92-95-102-103-107-148-149.) (Indictment— Of the trial, verdict and judgment, 13-45.) (Evidenci — In criminal pros icutions and indictments. 13-28-41-48-54-57.) FORNICATION AND ADULTERY. 1. A man may be separately indict r the act ol a v. Co. : X. C. Term, R., . ch. 34, sec. 45.) ■>. i i fornication and adulteiy, the in- dictment must ch; ad not inter- nication an , ither, " ined by showing an I ir- f the woman to the \ ra1 ification of the i taken the other into his or her 1: ■'■ \. •■■ U :■■ 3 I »( v. and Bat., 1 10. 4. Tl i iage between a free of col -1 by law, and void, and, th< refore, whi Sthe law i tion and adultery. State v. Fore, 1 Ired. 7. and ch. 34. An indie thai J. F. did " take into' his house C, and they did then and there hi ation, they the said J. F. and S. C, never having been lawfully married," is sufficiently cer- - -h expres id. rhe court must inte#d from - thai the pai i • re "I' different sexes. Ibid. 6. Where, on an indictment for fornication and adultery, the jury found that the defendants were guilty of fornication, but not guilty of adultery, the state was held to be entitled i ment. ■ i v. ( 'ou 11, I Ired., 231. 7. : -a the trial of an indictment for fornication and adultery, it is not necessary to show by direct proof the actual bedding and co-habiting; it is sufficient to show circumstances, from which the jury may reasonably infer the guilt of the parties. Therefore, where it was stated by a witness, that he went early one morning to the house of one of the defendants, and on knocking was, after some hesitation, admitted by the female de- fendant, who came to the door with her frock on. but unfastened; that the male defendant was in the only bed in the room; that 620 FORNICATION AND ADULTERY.— FRAUD.— I. the shoes of the female were near the head of the bed, and that the bed seemed to be very much tumbled; it was held that this was sufficient to justify the jury in finding a verdit of guilty. State v. PoUvt, , (a female), unlawfully did bed and co-habit together, without boing lawfully married, and did commit fornication and adul- tery," was held to be a sufficient charge of the offence, as speci- fied in the Rev. Code, ch, 34, sec. 45. Slate v. Lyerly, 7 Jones, 1 58. 10. Where, in an indictment for fornication and adultery, one of tie; partie was not taken, and en the trial of the other a gen- eral verdict of "guilty" was found, it icas J, dd to lie sufficient. Ibid. See (Evidence — In criminal proceedings and indictments, 45.) FRAUD. t. Conveyances, agreements, &c., frau- dulent as to creditors. II. Conveyances fraudulent as to subse- quent purchasers. III. Remedy against fraudulent convey- ances. IV. Fraud in the removal of debtors. V. Fraud in the execution of a deed or other instrument. VI. Fraud at auction sales. I. CONVEYANCES, AGREEMENTS, AC, FRAUDULENT AS TO CREDITORS. 1. Fraud in the execution of a deed must be proved, as well as suggested. Bell v. Hill, 1 Hay., 72, (85.) 2. A disposition of any part of his property to his child by a father, indebted more than he is worth, will be fraudulent and void as to creditors, unless the child can prove the purchase to have been made for a full and fair price, actually paid. Arnold v. BeU, 1 Hay., 396, (456.) 3. Property sold, remaining in the possession of the vendor, is evidence of fraud, though liable to be explained. Hedges'?, Blount, 1 Hay., 414, (478.; S. P. Cox v. Jackson, Ibid., 423. (488. j Ingles v. Donaldson, 2 Hay., 57, (222,) and 10 (261.) Vich v Keys, Ibid., 126, (287.) Falkncrv. Perkins, Ibid., 224, (399.) FRAUD.— I. 621 4. Secresy in a transaction is a mark of fraud; and it is con- sidered secresy, that it is done only in the presence ofneai ref- lations, or at a distance from the neighborhood. Fickv. Keys, 2 Hay., 126, (287.) .i. [fa conveyance be madi to defeat an expected recovery in a suit, it will nut lie deemed fraudulenl to defeat creditors, should Ih" r scovery in it take place. Brady v. Ellison, 2 1 lav.. 348, ( ■'■>'.>. \ 6. Inadequacy of consideration, embarrassed circumstances in the alienor, his remaining in the possession of the land after the sale, tin- secresy of the trans; m a combination of cir- indicative of fraud. Darden v. Hkinner, 2 Car. L. R., 279, i 7. Wl m if a chattel does not accompany and follow the title, the transaction is fraudulent in law. ( ai her v. rd, X. C. Term R., ir>7, (600.) (Overruled, see Trotkr v. Hotcard, 1 Hawks, 320, and i 8. [f an absolute deed be made of a chattel, and a defeasance lie mad.' at tin- same 1 it: ; • - . hut separate from it. it shall nol ope- i to i he prejxidice of a third person, but will 1 e fraudulent and void as to en ditors and purchasers. Ibid. 9. Whether a deed be fraudulent or bona fide, is a question of ssession, or the want of it, is but evidence tendingto ine the question one way or the other. Trotter v. How ird, 1 Hi wks, 320, S. 1'. Smith v. Neil, Ibid., 341. 10. If the plaintiff, in a magistrate's judgment, know that the defend: : rsonal property sufficient, to satisfy his execution, and permits the constable to levy (inland and return no personal pro] to bi found, then moves, on such return and levy, for a imes himself the purchaser of the land, it is not a fraud in law, but is a circumstance to be lett to the jury, on the question of fraud in fact. Lanier v. Stone, 1 Ha-rfks, 329. Jl. Where a creditor, by bond, of an insolvent absconding del ti e '. list whom sevi ral executions had issued, received, before the sale of the property, a certain sum to be applied to- wards the satisfaction of a certain judgment creditor, but did nut applj it, and. at the sale of the debtor's property, purchased his Jam!, and paid off the said judgment creditor only, and after- wards conveyed to the plaintiff; but between the time of the purchase by tin' plaintiff's vendor, and his sale to tin' plaintiff, the land was sold under other executions, when the defendants became the purchasers; it was held that the conduct of the plain- tiff's vendor was nut fraudulent as to the other creditors, and. at all events, it could not affect the plaintiff, who was a l< pun baser from him. It washeld further, that Ihedebtor's equity againsl the plaintiff's vi ndor, for the misapplication of the money entrusted, was not such an equity as was subject to sale under 622 FRAUD.— I. the act of 1812. HawTans v. Srieed, 3 Hawks, 149. (See Rev. Code, ch. 4. r >, sec. 4.) 12. Possession retained by the vendor of chattels does not^jer se make the sale fraudulent in law. It is but presumptive evi- dence of fraud, proper to be leftto the jury; and, to rebui the pre- sumption, the vendor may show that a consideration passed; though none be stated in the bill of sale. Howell v. Elliott, 1 Dev., 76. 13. Where a parent, before the year 1806, being unembar- rassed, made a parol gift of a slave to a child, and the child and slave resided in the family of the parent, it was held that the gift was void as to creditors of the parent, whose debts wereci utrac- ted twenty years afterwards. Peterson v. Williamson, 2 Dev., 326. 14. The gift was so absolutely void against creditors and pur- chasers, that an open and notorious adverse possesi ion of the child, together with perfect bdna fidi ■ in both parties, could not validate it, against the creditors ol the donor, without respect to the time when their ri • ied. Ilrid. la. A conveyanci fraii ! ilent as to one creditor is void as to all creditors. Hoh ■ v. Henderson-, •"> Dev., 12. L6. A voluntary convey in i to a child, made by an ini olvent, fa ! o void, as to pi-e-existing debts. Morgan v. McClelland, 3 Dev.'. , si'. 17. The statute of 13 Eliz. being intended to protect cred a J jijie purchaser, from a fraudulent vendee, 1ms no! title against 'the vendor. But that of 27th Eliz. being intended for the benefit of purcha: ! -. the Br I bjna Repur- chaser, whether from the fraudulent vendo . within its operation. Hokcv. Henderso - 3 Dev., 12. L8. A lona fldt fen dee, who pays hi to sat- tanding fraudi I 1 al moi > .-v. e, and tal I from both the mi i i ' n ■ . ■ I ! Dev., 105. 19. Jn i - ■■; . ainsl Fraudulent c mveyan- ces, the gor i ■ d I r owner of the estate, and the mortgagi e but an incumbrancer. Hid. ■20. A by an insolvent of all his wherebj i m of hi creditors are preferredj with astipulation that the prop rty hall remain in his possession, until a sal maj be directed by a majority of the ci editors named in the •'■ ed, is not, in law, fraudulent upon its face, so as to authorize the court to pronounce i ; " void; but its validity must be submitted to the jury, upon proof as to its fraudulent intent. Moore v. Collins, 3 'Dev., 126. 21. A deed made for the purpose of indemnifying a party against a responsibility, created, as a pretence for making the FRAUD.— I. 623 deed, and thereby to Becure the use of the property to the debtor. is fraudulent and void. Leadman v. Harris, 3 Dev., 144. 22. A deed made to secure a true debt, but for the real pur- f enabling the debtor to continue in the us oyment of the property conveyed, is fraudulent and void. Ibid, 23. Where the fraudulent intent is made to appear by, evidence extrinsic of the deed, it is a question for the jury; hut what is a fraudulent intenl is a qui stion of law for the court. Ibid. 24. The maxim p '■ litt nihil innovetur is not applicable to fraudulent judgments. Haywood v. Sledge, •"> Dev., 25. Where A conveyed his estate to a trustee to secure his •eed to purchase the estate at a sale by the .and upi m a resale, afti aifying himself, to hold the surplus for A, it was lie surplus to satisfy C, was not voluntar fraudulent a li there was no written andum of the agree) a him and A. Jones v. n, 3 Dev., : 26. Wh iu pursuance of a family arrangement, 'v to his da llOi] i ■ !i it is 1 r; a i 1 if the if a jud at her, i d it, no title. Wall r v. 5 27. A s ittlemei red .... deb oi fori li 28 iudulen1 conveyam e can 1 ■ ; ' ?. 20. '■ . in law, fran voidagainst i 30. An a uted I, with r or 1 lem I . . lh',,1. '■'A. I id t the 1 ing a volun _ . ■'■ ! . O - i i ■ the property coi i . only evid on of which the jury; but in r prior creditors, wh i rwise satified, it constitutes fraud in law, to b d ared by the court. O'Daniel v. Crawford, 4 Dev. 197. 32. A voluntary conveyance will never be uphold to di feat a prior creditor, whatever be the amount of his demand, although rantor reserve property amply sufficientto satisfy the debt, 624 FRAUD.— I. and the necessity of resorting- to that conveyed arise from the wasting- of that reserved, many years after the conveyance. Xor is there any exception from these principles in favor of disposi- tions made by parents in advancement of children, the princi- ple beinguniversal in its application, that a voluntary conveyance yields to the prior debt, as far as is necessary to its satisfaction. Ibid. (As to prior creditors the law is now altered, see Rev. Code, fli. 50, see. 3.) 33. A bona fide purchaser foravaluable consideration, without notice, from a fraudulent grantee, acquires a good title against the creditors of tip- original fraudulent grantor. Martin v. Coivk.% 1 Dev. ami Bat, 29. 34. The possession of n son-in-law, under a parol gift from his wife's father, is not evidence ol fraud in the donor, as to the creditors of tin- son-in-law, unless there In- a conveyance of the slave by the donee for the benefit of his creditors, which is known to the donor and acquiesced in by him. Hill v. Hughes, 1 Dev. and Bat., 327. 35. Under the statute of 13 Eliz., a conveyance made with a view ti> becoming indebted, is as much fraudulent as one made by a person already indebted. Littleton v. Littleton, 1 Dev. and Bat., 327. 36. A voluntary conveyance made by a debtor, who owned at the time, and left at his death, sufficient property to pay all tin- debts which he owed at tin- time of the conveyance, is not ne- cessarily fraudulent and void as to creditors. The actual intent, with which the deed was made, must be submitted to the jury. Jones v. Young, 1 Dev. and Bat., 352. ;'.7. The statute of frauds of Virginia, making- a possession of slaves for live years under a bailment fraudulent as to tin- credi- tors of tin' bailee, has no effect, unless the full term of the pos- session takes place within that state; and where it commenced then-, hut was completed in this state, (7 was held that a purcha- ser, under an execution issuing here against the bailee, acquired no title. Laird v Brady, 2 Dev. and Bat., ."41. 38. It seems, that where the defendant, in an execution, and his family make a fraudulent misrepresentation of the quality and value of land levied upon and about to be sold, with a view to defeat the creditors of the defendant, and to secure it for his benefit, and one. ignorant of the fraudulent arrangement, pur- chases at an inferior price, his title will be good against the creditors, as will also, at least at law, be the title of one of the parties to the fraudulent arrangement purchasing from him. but. if in such case the sale were void, as for the want of a seal to the writ issuing from another county, and the first purchaser sold without ever having taken possession, the possession of his vendee, a party to the fraudulent arrangement, will be, as to the creditors of the defendant, a possession for him, and will not be FRAUD.— I. 625 adverse to the creditors, so as to defeat, them by length of pos- session under color of title. Dobson v. Encin, 4 Dev. and Bat., 201. 39. The possession of a fraudulent vendee cannot, in respect of a creditor of the fraudulent vendor, be deemed adverse to such vendor or his creditor, because the statute makes the whole contract void. and. as against the creditor, the possession of the vendee is deemed to have been in trust for the vendor, and, therefore, it is the possession of the vendor. But, when a sale is once made by the creditor, then the possession ol the fraudulent vendee becomes adverse, for the law does not suppose anysecret confidence between tin.' donee and the purchaser. Ibid. 40. Where a vendor and purchaser contracted for a life estate in certain slaves, at a fair price for such interest, under the sup- position that the vendor was entitled to no greater interest in the slaves, and the vendor executed a bill of sale, conveying "all his right, title and interest in. and to the slaves," to the purcha- ser, and it turned out that the vendor was entitled to an absolute inten st in them, which was ten times the value of the life i it ioas held in a suit at law in the life time of the vendor, by the its ol iii" vendor, impi aching the deed for fraud, that the mistake might '»■ shown by parol testimony, and that the con- veyance was not fraudulent and void as to such creditors, llim- yon v. Leary, 1 Dev. and Bat., 231. 41. .Matter dehors a deed may he resorted to for the purpose of repelling, as well as founding, an imputation of fraud. Ibid. 42. An absolute hill of sale for slaves, accompanied witli a pa- rol contract between the parties that the vendor might redeem or re-purchase the slaves, by re-paying the same price, is not void as against the' creditors of the vendor, under the act of 1820, or the 13th Eliz., when it is admitted that the sale was not, and was no1 to lie. a mortgage, but was bona fide, absolute and for a fair price. Newsom v. Moles, 1 lied., 179. (See Rev. Code, eh. M. sec. 22. and eh. 50, sec. 1.) 4o. A deed absolute on its face, but intended as a mortgage only, is fraudulent and void against creditors and purchasers, and againsl subsequent, as wi 11 as prior, creditors. Hdteombt v Bay, i I od.. 340. 44. Such a deed cannot be rendered valid by any subsequeni agreement between the grantor and grantee, chat the granted should have all the interest of the grantorin the premis< s, and by the actual payment by the grantee, in pursuance of such agreement, of the full value oi the land to the grantor's cred- itors; nor, even where the deed is re-delivered subsequently to, and in pursuance of. such agreement, Having taken effect, as between the parties, on the first delivery, the deed could not be surrendered to lie re-delivered. Ibid. 4a. Where land was purchased by A, but the deed was made 40 626 FRAUD.— I. to her daughter B, who became personally liable for a part of the consideration money, a creditor oi A cannot sell this land, under an execution at law, to satisfy a judgment ol itained 1 >y him against A, although the land was so conveyed, expr i ly to pro- tect it from the debts of A. It cannot lie sold by virtue of the statute of frauds, 13th Eliz., because that only avoids conveyauces made by the debtor himself. Nor can it be sold under the act of \%l"2, subjecting trust estates to execution, for that only applies to a case in which the debtor, the cestui que trust, could immedi- ately and unconditionally claim a conveyance of the legal estate from the trustee — not to one where the trustee needs tin estate to subserve the rights of himself, or of third persons. Gotcing v. Bich, 1 Ired., 553. (See Rev. Code, ch 50, s< c. 1, and eh. 45, see. [.) 4(i. In the case above stated, B, the grantee and trustee, be- fore she could be compelled to part with the legal title, had a right to be compensated for the money she had paid, or to be indemnified for the liability she had incurred, in relation to the consideration of the purchase. The remedy of the creditor was in equity, but on a different principle, and that is, the right in equity to follow the funds of the debtor. Ibid. 47. A deed in trust, dated the 16th August, 1841, made by an insolvent debtor for the benefit of preferred creditors, declared that the property shall he sold "a1 any time after the 1st day oi January, 1842, or betore, if directed by the said S. B. S. (the debtor) on such terms, and at such places as shall hi-' directed by him ; the said H. J. C, (the trustee) is to sell the aforesaid property, and out of the proceeds to pay first the expenses of execu- ting this indenture, in the next place the debt of T. I >. (one of those recited in the premises of the deed,) and as to all the oth- er debts and dues mentioned, he is to pay them with interest and the costs now due, or which may become due, on suits now pene- ing, prorata." A declaration or stipulation is then appended: "It is, however, stipulated that as the said S. 11. S. is anxious to save harmless all his securities, if there be any of them unprovi- ded for in this indenture, he is at liberty to direct them to be paid in like manner as Iris other securities are.'' The property conveyed consisted of lands in different parts of tins state, of slaves in different counties, and of contracts unexecuted, &c. If, was In!') that these provisions did not per ye make the deed irai 1- uieiit in law, as against other creditors of the debtor. Gannon v. Peebles, 2 lred., 449. 48. Though a conveyance may be fraudulent against creditors, it is good against the grantor and tortfeasors not claiming as creditors. Worth v. Northam, 4 Ired., 102. 49. Although an imposition on particular creditors by false representations of his son's credit by a father, might make him FRAUD.— I. 627 liable in a proper action, yet even an express fraud of that kind would not work a change of property, so as to render what was really the property of the father, subject to an execution against the son. Hollowed v. Skivner, -1 Ired., 165. 50. Where, in a deed of trust for the satisfaction of creditors, the maker of. the deed reserves to himself a general power of revocation, anfl the declaration of other trusts by which he may be benefitted, tin- deed is fraudulent on its face' ami void. But when he onljtreserves the privilege of adding to the number of preferred creditors others of the same class thi ! ed cannot bepr unced by the court fraudulent en its face; 'ait it must be left to the jury to determine, whether such provision was in- serted with a fraudulent intent. Cannon v. Peebles:, 4 Ired.. 204, 51. Where A gave an absolute bill of sale to 13 for a horse, with a parol agreement that A might redeem the horse, the con- tract was fraudulent and void, as against the creditors of A; but if he subsequently sell the horse to B, bona fide, and for a valuable consideration, before any lien of the creditors attaches this sale is not affected by the previous fraudulent contract, but is valid against the creditors of A. King v. Cantrell, -I [red., 25L 52. Where a father, with funds fm nished by his.daughter in his hands, purchased a slave at public auction for her, and in her name, but took a bill of sale in hid own name, and took posses- sion of the slave and gave Ins bond for the purchase money ae- cording to the terms of sale, and then immediately afterwards conveyed her to his daughter, ft was held that .the conveyance could not be considered fraudulent as*against the father's creditors, h he could Save been compelled in equity to make such conveyance, had it been taecessarjff but in fact it was not neces- sary, as by tlie sale and delivery under the circumstances. :m absolute legal title immediately passed to her. Buiev KeUv 5 led.. 169. " * ''' 53. -V devise of a naked power to sell land by an executor, and to divide the proceeds amen-' the devisor's wit- and children, is fraudulent and void as against his creditors. Mgram v. Sloafi , 565. 54. The retaining of the possession of slaves by a vendor, after giving a bill of sale absolute on its face, though not per se frau- dulent, is yet a circumstance, which, with other facts' and cir- cumstances found or admitted, would authorize the court to say that the transaction was void for fraud, fraud being a question of law, upon iacts and circumstances found or admitted. ' Rea v. Alexander, 5 Ired., 644. 55. Where it is a part of the agreement of the sale that, not- withstanding the absolute deed, the vendor shall have the pos- session and use of the property conveyed, for an indefinite period, this amounts to an express seoret trust for the vendor, and con- 628 FRAUD.— I. stitutes a fraud on creditors, deceived or hindered by tire transac- tion. Ibid. "ill. A voluntary deed is not void as to creditors, when the donor retains sufficient property to pay his del its. and out of which the claims of creditors may be satisfied. Arnett v. ' 6 rred., 41. 57. The act of 1840, ch. 28, applies to voluntary deeds made before the passage of the act. as well as to those made subse- quently. Ibid. (See Rev. Code, ch. 50, sec. 3.) 58 A being seized ami possessed of an estate in fee in a tract of land, subject toa limitation overto B, in tin.' event of his dying without issue, made a fraudulent conveyance of the land; and afterwards B died leaving A his heir at law. // was held that, after the death of B, the whole estate in fee washable to the satisfaction of A's creditors. Flym v. William*, 7 fced., 32. 5!). The act against the fraudulent alienation of property makes the fraudulent conveyance absolutely void, and in that way prevents the passing of any estate as against creditors Ibid. (See Rev. Code, ch. 50, see. 1.) 60. Under the statutes of Rliz. voluntary conveyances to chil- dren, as such, are not absolutely void as to creditors; ami to make them void.it must be shown that the maker of the deed was indebted at the time, or became so, so soon afterwardsas to con- nect tin/ purpose of making the deed with that of contracting- the debt and defeating it. By indebtedness in such case, is not meant a debt of trifling amount in comparison to the donor's estate, but he must be "greatly indebted," or at least he must owe some debt that remains unpaid, and will remain so, if the con- veyance he sustained. Smil/i v. li'roris, 7 Il'ed.. .'ill. 61. If a father, who conveys land to a son, he indebted at the time, that does not avoid the deed, provided the father pay that debt, or if he retain property sufficient to pay the debt, and out. of which the creditor can raise the money, when he seizes the land conveyed to the child. Ibid. (For the law on the subject at this time, see Kev. Code, ch. 50, sets. 1 and :i. ) 62. An indulgence tor a year, upon obtaining a real security for an existing debt, which is necessarily made public by regis- tration, is not so unreasonable as to raise a legal presumption of an intention to hinder a creditor by the security. Lee v. Flan- nagan, 7 [red., 471. (!,">. On a. question of fraud as to a deed in trust, &c, it is a proper subject of enquiry by the ju¥y, whether the sale was to bo m convenient time, under all the circumstances of the parties. IHd. 64. Where a deed in favor of one creditor is made for the purpose of defeating another creditor, it is fraudulent ; but it is not so when the loss of the latter is merely a consequence of the preference given to a just debt. Ibid. FRAUD.— I. 629 65. It would seem that a mortgage of land For a just debt Cannqt be a fraud upon another creditor, since the act of 1812, because it cannot obstruct his remedy, by a sale of all that under any citcum stances ought to be sold, namely, the debtor's whole interest in the premises. Ibid. 66. Where a son, being insolvent, conveyed property to his rather for an apparently valuable consideration, and was per- mitted to remain in the continued possession and exercise of ownership over it for a number of years, a presumption of fraud is raised, either that the conveyance, though absolute upon Its face, was not bona fide for the benefit oi the father, but upon trust for the insolvent vendor or donor, or, at the liar there was intention to give the son a false credit. This presumption, however, is not a conclusive legal one estab- l, out must be submitted to a jury. Slater. Bell, ne, 8 I red., 139. 117. Where a deed was made- in trust to secure creditors, and it was stipulated in it that a sale should not take' place for three years, and. in the mean I <: in trust should remain in pi i of the property, consisting oi' land, slaves, &c, and. on the trial of a suit, the creditor impeaching the trust ad- mitted thai there was no actual fraud, but conte.n led that the ice, fraudulent in law, it thatwhether tl leed was fraudulen or not was a question for the under all tin. i court could not, from what appeared on the face oi' the deed, say it was fraudulent in law, because there might be circumstances in which such a deed would be good, and the creditor had admitted that it was not in fact. Hardy v. Skinner, 9 [red., 191. 68. V, here a deed is absoh te < lleged that it was on a seci il trust for tic debtor, with intent to defraud his irs, it must be hat to the jury to ascertain the existence of such trust; but where a tion by ir, and expr. ss^s on its Eaj e thai it was made for the ben- efit of the donor and his family, the court can. ii self, pr< it fraudulent and void, as againsl a creditor Ma a existing. Stui div vat v. Davis, 9 [re3., 365. 69. Where an agreement was made between a father and his land at execution sale, at an under value, for his use, and for the purpose of kei pi Id, that a purchase by the sons under such cir- cumstances was fraudulent and void, as against creditors, whether urniahed by the father, or paid out of their own mean>. ■,-. Allen* 1<> [red., 203. 70. before' file act of 1840, ch. 28, ^voluntary conveyance of property, even to a child, could be upheld, to defeat an existing creditor, if the creditor could find no other property out of which 630 FRAUD.— I. to obtain satisfaction. Houston v. Bogle, 10 Ired., 496. (See Rev. Code, ch. 50, sec. 3.) 71. The act of 1840, ch. 28, applies onfy to voluntary convey- ances made after the act went into operation. Its application to prior voluntary conveyances would lie unconstitutional, as it is not the province of the legislature, but the judiciary, tio declare •what the law was before the passage of an act. The legislature cannot divest vested rights. Ibid. 72. A man, being bound to support his father, conveyed a tract of land to his brother, in trust, to perform the conditions of that bond in the first place, and then, nut of the proceeds of the land, to pay (lie other creditors of the maker el' the deed. In the deed was contained the following clause: "The manner of executing the deed, as to the support of my father," in left to the discretion of the maker of the deed. If was held that this did not make the deed, on its face, fraudulent in lav.-, for it re- served to the maker no control over the fund, but only the man- ner in whieh the lather should lie supported; and further, that the fact that, the debt to the father was prospective, as well as immediate, did not make it illegal to give it the preference. Gibson y. Walker, 11 Ired., 327. 73. Where a man makes an absolute conveyance of a chattel, purporting to be either a sale or a gift, and continues for a long time in the possession of the chattel, so purported to be convey- ed, this creates in law a strong presumption, on which the jury should find the conveyance fraudulent as against creditors, un- less opposing and explanatory circumstances should rebut the presumption. Foster v. Woodfin, 11 Ired., 339. 74. Fraud is never, exclusively, a question of fact: that is, in the sense of leaving it to the uncertain judgment of jurors to give to the intent to convey upon a secret trust, or to the fact of credit being given to the grantor upon his continuing in pos- session, such effect as to them, in each case, may seem proper; but on the contrary, the effect of such intent, or false credit, if in fact existing, depends upon the fixed principles of the law. Ibid. lb. Where a deed of trust for the payment of debts conveyed a cotton factory, &c, and in the deed were provisions that the maker of it should retain possession for eleven months, and during that time his family might be supported out of the proceeds of the factory; it was held that these provisions did not make the deed fraudulent in law, upon its face, but as the provisions might have been for the benefit of the creditors, as well as of the debtor, the question of fraudulent intent was one, upon which the jury should decide under all the circumstances. Yomig v. Booe, 11 Ired., 347. 76. Although a deed is made to include more land than was FRAUD.— I. 631 si ild, it is in it on that account fraudulent, but is only void for the excess. Judges. Houston, 12 Ired. 108. 77. Where a deed of trust, conveying a debtor's property for the satisfaction of certain creditors, is necessary to support an action against persons claiming as purchasers under execution against the grantor^ audit is not shown that independent of the d the grantor had enough, at the date of the deed, to satisfy other creditors; the party relying upon the deed must produce evidence of the existence of the debts therein mentioned, as the bonds, notes, judgments, &c, or at L i I of such an amount ot them as will sho"w prima facie that the transaction ''•••. And when this prima facie evidence has been given by the grantee, the onus of proving any fraud, is thrown upon the party alleging sue h fi "e, 12 [red., 287. 78. ' titutes fraud is a question of law. In some cases il ■- ', nt, when it is the province of the court so to adjudj ithing to do with it. In othei ;i variety of circumstances, arising from the motive and intent, and then it must be left, as an open question "1 fa i ! i'i; wi to what, in law, eousti- tuti In other cases, again, there- is a presumption of fraud, iy be rebutted; and then, if there be evidence tending to rebut it. that must be submitted to the jury; but if there be no such evidence, it is the duty of the court so to ad- judge, : upon the presumption. Hardy v. Simpson, 13 Ired., 132. 79. When A made a fraudulent deed of trust of "certain prop- erty to •', and afterwards for a fair price, and l,„ afide, conveyed the pn jr rty to B, it was held that B acquired a good title, not- withstanding the previous fraudulent transaction. Whit v White, L3 [re L 265. 80. A bona fide purchaser of personal property without notice acquire -Me, though his vendor may have made a prior fraudul ancetoa third person. Plummew. Worley, 13 [red., 423. 81. Though, ordinarily, he who alleges fraud must prove it, the rule di i. e nut extend to a case where, upon a question of consid- eration in the sale of a slave, the vendor, vendee and subscribing witness thereto were brothers-in-law. and the vendor, at the time, was sued for debt, and was actually insolvent. Satterwhite v. Hicks, Busb., 105. 82. A deed of giftjlnay be fraudulent as to creditors, tHbugh the donor, al the time of the gift, honestly believed that he had broperty sufficient to satisfy all his debts then existing, if in tact he was mistaken; and this principle is nut altered by the act of 1840, eh. 28. Black v. Sunders, 1 Jones, 67. (See Rev. Code, ch. 50, sec. 3.) 632 FRAUD.— I. 83. If there be an existing debt, and the debtor make a volun- tary conveyance, and afterwards become insolvent, so that t ac- creditor must lose his money, unless the property conveyed eari be reached, such voluntary conveyance is presumed, as a matter of law, to be fraudulent. J hid. 84. The act of 1840, ch. 28, only requires the question of fraud to be submitted to the jury as an open question of fact; in cases where property fully sufficient and available to pay all creditors is retained by the donor. Ami twenty-two negroes and two small tracts of land, valued at $7,250, retained in such a case, is not, within the intent of the act, sufficient and available to pay debts amounting to $6,848. Ibid. 85. Where a father, who was in embarrassed circumstances, sold to his two daughters who lived with him, three slaves fora fair price, a pait of which was paid down, and the remainder waB to be paid towards bona fide debts which the father owed, and which they afterwards did pay, it was held that this was not a fraud in law upon the rights of a < reditor, existing at the time of the transaction, so as to authorize the court to declare it so. Jenkins v. Peace, 1 Jones, 413. 86. A provision, in a deed in trust, for the postponement of the sale of the property for nine months, and then to be sold on a credit of six mouths, is not a fraud in law, authorizing the court to declare the deed, to be void on its face. Gilmer v. rdt, 1 Jones, 559. ■ST. Where an insolvent debtor transferred his effects to an in- fant son. upon an agreement made bona fide that he was to take his son's notes with security, and that his son should pay certain debts contracted by them both, as a firm, it was held that the transfer was fraudulent in law and void as to creditors, because the son was an infant, against whom the law did not afford any remedy. McCoihl v. Hammond, 2 J i 88. A voluntary conveyance of personal property, in trust for the donor's wife and children, is void as to creditors, under the statute of 13th Eliz., but -passes the title us to sub nt pur- ' . . v. Brice', 3 Jones, 85. (See Rev. Code, ch. 50, see. 1. ) ". IdiVi 11, 4 Jones, 150. Hi'. Where a daughter and her ,husl and convey a tract of laud to her lather, as to which there was seme doubt whether ir belonged to him or to the daughter, whereupon he eon tract of land to her, it teas held that it might hi' properly left to whether the father's eon- r, and upon a ration to make h - editors. Ibid 93. Where, upon a question whether a certain deed was frau- dulent arid void as to creditors, i hand were .. in opposition to M (1 was proved by the grafitee d to pay tic full i erty, and had Uy paid all but a small amount, it i rroneous in the if fraud turn entirely upon the th small balance of the purchase money. Felton v. W ■- dul. ■ 94. Where the fraudulent donee old, trad of Ian I m deadeed of trust of the same to to a third person, under which the land was sold for a valuabli i m and with- ■ fraud, and the pure! I to the >r the purchase m he 1 rustee, uotice of tl erwards, an ; i a him. did uol affect his title, y, , \ '% >. [ones, 12*. 95. Whi i everal f< ig in a of trust, it was lield'va a i ti by the trustee to recover 1 • the deed was void in tatp, as againsl cred- there were other defbts included which were bona Jide,*and although it did not appear that the trustee ted in the fraud. Stone v. Marshall, 7 Jones, 300. 96. A deed oftt ted an individ- the purpose ol gaining time at the exj ol - reditors, ■ ty to advantage, and pre - ' eni a sac- rifice h ■■•:■ cash, when the company or individual has the yrces from which enough tnighl be realized to . i- fraudulenl ami void as againsl ereditors. 7.'.; don v I "/.■■': //. 7 Jones, did. 97. Where a lather who was insolvent, executed a deed to a son who was under age, and who paid him therefor, partly in money which he had earned by working in a gold mine, and partly by his note, it was held that as the money belonged, in 634 FRAUD.— I.-II. law, to the father, and the note was against an infant, the deed was in effect voluntary and void as against creditors. Winchester v. Reid, 8 Jones, 377. 98. A deed, absolute on its face, which is intended to operate as a mortgage, is void in law. And a conveyance of property, absolute on its face, and declared to be made in payment of a debt, is a mortgage, provided the supposed debt is merely an obligation on the part of the vendor to indemnify the vendee against an event which has nut happened, and may never happen., Johnson v. Klurchison, 1 YVinst., 21*2. 99. If any part of tie consideration of a deed be feigne&or fraudulent as to creditors, the whole is void as to them. Ibid. 100. A and I! were partners in trad': in 1851 and 1852; and in 1857 an account was taken which ascertained that a balance was due to B. In 1855, a conveyance was made by A without any valuable consideration, and it wae fold to.be yoid as to B, because he was a creditor of A from the year 1852. Ibid. lul. A deed made with the intent to convey property in dis- charge of a su] posed debt, which is in law not a debt, isvbfeas against creditors, although the grantor thought he owed the. debt, and made the deed in discharge of it. Ibid. See ( Estoppel — By deed. 5.) (Execution — What may l>e levied on and. sold under execution, 37.) (Husband and wife — Of mar- riage settlements and agreements, 1-4-5-6.) (Mills — Proceed- ings by petition under tie' act of 1809, 5.) II. CONVEYANCES FRAUDULENT AS Til SUBSEQUENT PURCHASERS. 1. A conveyance, which is fraudulent as to creditors, is also fraudulent as to purchasers; and though the purchaser have no- tice without registration, his purchase is good, for if he have notice, he knows the contract to be fraudulent ami void. In- gles v. Ddnaldson, 2 Hay, 57, (222,)and 101, 261. 2. A bona, fid' voluntary gift of slaves to infant children, by a father, is not necessarily fraudulent as to subsequeift purchasers, though the possession of the slaves remains with the father, while his children live with him. The statute of 27 Eliz., in fa- vor of subsequent purchasers, relates only to lands and the pro- fits thereof, and not to personal property. Bell v. Blimey, 2 Murph., 171. (See Rex Code, ch. 50, sec. 2.) 3 A prior voluntary conveyance of land shall prevail against a subsequent purchase, unless the latter is fair and honest. Hence where A, in consideration of blood and affection, convey- ed his lands to his only son, and afterwards, for a valuable con- sideration, sold the. same lands to B, but with the intention of defrauding his creditors; it was held t}fat the son was entitled to recover from one who had purchased of B, with notice of the circumstances. Squires v. Biggs, 2 Car. L, R., 274, (253.) FRAUD.— IT. 635 4. A purchaser at a grossly and manifestly inadequate price is not such an one as, under the statute of 27 Eliz.. eh. 4.. can avoid ;i previous voluntary conveyance; but to constitute a pur- chaser entitled to the benefit of the statute, the purchase must od faith and for a fair price; and this the court should declare as a rule of law. and not leave it as a question of intent to be passed upon by the jury. Fullendwider v. Roberts, 4 Dey, and Bafc, 2*8. (See Rev. Bode, ch. 50, sec. 2.) 5. The urt will not enter into the question of the quacy • ideratioflf as per se vitiating the sale, unless it be plain, and ex1 n mes of would caK a good bargain on one hand, and a lad. or even hard bargain he law will not interfere. But \ I or i , given, that every body who i i ate will exclaim at onoe, "why, he has g. the lai nly one tenth, or ; I lird, of, the value were given, the law won If, if it did no! terj ly and without qualification, to such a pei - m. that h [titled himself to the benefit of the stature. Ibid. 6. It i true that deeds, void by reason of bad faith as to or are also void as to purchasi re. Theyare not in- deed vi they are so as to creditors, but by reason of the bad faith, which alike vitiates them fls against both purchasers and creditors. There may be instances, in which purchasers would not stand on the same footing with creditors. Ibid. 7. The term ••purchaser" is not used in the stat. of 27 Eliz. in its technical sense, for one who comes to an estate by his own act. It is to be received in its popular meaning, as denoting one who buys for money, and buys fairly, and of course for a fair price. Hid. S. The same rub- -prevails in equity, as at law, with regard to purchasers setting aside voluntary or fraudulent conveyances under the stat. of 27 Eliz. Ibid. 9. Fraud and good faith aregenerally questions of intent, and therefore proper for the jury, whose province it is to look into the mind and heart; but this proposition is not to be carried to the absurd extreme of cutting oil' the court from drawing from admitted facts any inference, however consonant to reason, or necessary it may be. Hence the courts have laid down rules, as laws for the parties, upon the question of inadequacy of price in a pureli aser under the stat. of 27 Eliz. Ibid. 10. Thispowerof the court is not a novel assumption, nor can it | prove practically dangerous or inconvenient. There will be dif- * ferences of opinion as to the value of estates; also opposing evi- dence as to the price paid or agreed to be paid, and much allow- ance is to be made for the unwillingness ol many men to lay 636 FRAUD.— II. out money, unless they get a bargain, and likewise fov their re- luctance to purchase what is claimed by another, and cannot be got by them without the trouble and expense of litigation. These are all proper considerations to be left to a jury, and to be weighed by them, under proper information from the court, at the same time, as to the law. Ibid. 11. If one of several heirs, to whom a tract of land has des- cended, make a voluntary conveyance of it, and afterwards the >if hi r heirs file a bill for the sale of the land for partition, to which the voluntary grantor is made a party defendant, and a decree be made ordering a sale by the masted, the purchaser at the master's sale, for a valuable consideration, if the master's re- port be confirmee!,, and he be ordered to execute a deed to the purchaser, will be a purchaser of the land within the meaning of the statute of 27th Kliz and the master, in executing the deed to the purchaser, will be taken to have acted as the agent of the heir, and his deed will defeat the previous voluntary conveyance. Ldtta v. Morrist n, 1 [red., 149. 11'. A mortgagi i for a valuable consideration is to be ponsid- ered a purchaser, undei'theact against fraudulent ■ Frwuitni v. Lewis, 5 [red., 91. 13. Where one purchas : : laud at an execution sale, at a great sacrifice, in corisequenoe of'a fraudulent combination between him and the sheriff who conducted the sale, as by reason of this fraud, he obtained no title, so a bonajide purchaser from him, without notice of the fraud, md for a valuable consideration, will likewise obtain no tit] irnes v. M-c Is, 8 Ired, 292. 14. Under the act of 1840, ch. 28, a purchaser from one. w] o lias previously made a fraudulent conveyance, shall not be pro- tected in his purchase, unless he has purchased for a full value, and without notice of the fraudulent conveyance. Hiatt v. Wade, 8 Ired, 340. (See Rev, Cole, ch. 50, sec. 2.) 15. A conveyed to B a tract of land, by a conveyance absolute on its face, but intended merely as a s icurity for rnpriey lent, andB gave a bond for the re-conveyance of the land when the money should be repaid; afterwards B sold the land to C for a full and valuable consideration, and then the creditors of A sold | by executfon and 1) became the purchaser, it was )ield tha,t D on- ly acquired the right of A, that is. the right to demand in equi- ty a conveyance of the land from C, upon paying what rem lined due of the money lent by B to A. Kerr v. Davidson, L0 Ired., 269j 16. Under the act of 1840, ch. 28, the possession by a fraudu- lent donee cannot operate as notice of the conveyance, to him of | any land, but such tract or parcels of tracts, as may be occupied by him at the time of the second purchase ; and especially it can- not so operate, as to anv parcels, continuing in the possession of the donor. Wade v. Hiatt, 10 Ired., 302. (See Rev. Code, ch. 50, sec. 2.) FRAUD.— II.-III. 637 17. Under our act of assembly, a man cannot be held to be a purchaser for a valuable consideration, who gives for the land riot more than one-half or two-thirds of the value. Harris v. DeGrqffi r id, 11 Ired., 89. 18. Although one of the debts inserted in a deed in trust to secure sevi ral creditors be fraudulent, yet the legal title passes to the trustee, and his sale to a third person is valid. Ibid. 19. The statute of 27th Eliz., which aoauls voluntary convey- ances as t' ■ sul sequent purchasers, extends only to lands, and does not embrace personal estate. Garrison v. Brice, 3 Jones, 85. S. P., Green v. Kornegay, 4 Jones, 66. (See Rev. Code, ch. 50, sec. -.i 20. A conveyance of personal p operty made with intent to defraud creditors, though void as to them underthe stat. of 13th Eliz., is good as to subsequent purchasers, not being embraced in the 27th Eliz. Long v. Wright, 3 Jones, 290. 21. A hill of sale for a personal chattel, absolute on its face, but intended as a mortgage, is fraudulent and void as against a purchaser for a valuable consideration, by force of the statute, Rev. Code, ch. 37, sit. 22. requiring mortgages, &c, to be regis- tered. Dukes v. Jt nes, 6 Jones, 14. See (Fraud — Convevances, agreements, &c, fraudulent as to creditors, l7-18-39-43>44-80-88.) HI. REMEDY AGAINST FRAUDULENT CONVEYANCES. 1. Where one makes a fraudulent conveyance of his property. prior to the recovery of a judgment against him for a tort, the plaintiff, although he was not a creditor at the time the conveys Hin e was mad . is entitled, after judgment, to a sci. fa. underthe act of 1806. McErvrin v. Benhmg, I Hawks, 474. (See Rev. Codi . i h 50, js. 7. 8, 9.) 2. A creditor cannot seize property fraudulently conveyedj unless by virtue of his execution. The statutes against fraudu- lent conveyances by debtors can only be carried into effect by due | law. WiMiford v. Conner, 1 Dev., 371). .",. The a., given By the act of 1806, is dependent upon the original action of the creditor, and to sustain it, the first judgment must be in force: and, where the defendant in the 1 .■■ tion is dead, the sci. fa. cannot be supported Wintz v. )Vrl>h. '■> Dev., 27. 4. Where a sci. fa. suggests a fraudulent conveyance and a con- cealment of property, and not that it has been wasted and used. upon a verdict for the plaintiff, a personal judgment against the defendant is erroneous. Ibid. 5. There is a distinction, as to relief, between cases of actual fraud ana fraud presumed only from the conveyance being vol- untary; in the former, equity will relieve; but in the latter the 638 FRAUD.— IIL-IV. creditor is left to his legal remedy. 'Daniel v. Crawford, 4 Dev., 197. 6. A creditor must establish his debt by a judgment, before he can raise the question of the validity of a conveyance made by his debtor. The judgment will be, however, only prima facie and not conclusive evidence against a party claiming under the ' ir he may show, if he oan, that the recovery was el i cted by covin and collusion, for a pretended and not a real debt. Hqfner v Irwin, 4 Ired., 529. 7. The act of 1806, Rev, Code, eh. 50, sec. 7, was never intend- ed to bring in one who holds adversely to the debtor, and com- pel him td make a declaration of his title, in order to found an issue on it, to try whether it is his property or that of the debtor. In order to bring a party within the scope of the act of 1806, it must appear that he is connected with, or holds under, the title of the fraudulent debtor, or upona secret trust for him. Morrison v. McNeill 6 Jones, 450. 8. Where one owned and possessed slaves for fifteea yearsj and they were run out of the State by the owner, and tin- defen- dant, who was a brother-in-law of the owner, took them from the place where the owner had left them, and carried them to a dis- tant state and sold them, and received the money tor them about the time the plaintiff obtained a judgment against the owner, it was held, in a proceeding against the defendant under the act of 1806, that there was some evidence to be submitted to the jury that the defendant held the proceeds of the slaves in secret trust for the debtor, in order to enable- him to defraud his creditors. Morrison v. McN&SH, 8 Jones, 45. IV. IX THE REMOVAL OF DEI1TOKS. 1. In a suit brought on the act of 1796, for the removal of a debtor, a personal notice to the creditor, instead of an advertise- ment, was deemed sufficient. So the fact of advertisement may be proved on the trial, without the certificate of an advertise- ment by a justice of the peace. Roberts^. Erwin, 2 Hawks, 4.s. (The law on this subject is altered. See Rev. Code, ch. 50, sec. 14.) 2. In an action at common law for removing a debtor, the Bingle act of assisting the debtor to remove, without something more alleged and proved, is not sufficient to rendera person liable for a debt due by the person removed, although that assistance may have been given with a fraudulent intent; because it is a case in which a plaintiff cannot state the nature and extent of his inju- ry, it being quite uncertain whether he has lost the whole, or any part of his debt; and it is necessary for a plaintiff to state in his declaration not only that he is injured, but how he is injured. Gardiner v. Sherrod, 2 Hawks, 173. FRAUD— IV. 639 3. The act of 1820, relative to the removal of debtors, must be considered a total repeal ofthe act of 1796 on the same subject: and, therefore, a plaintiff, who sued out a writ in 1821, and de- clared upon an act committed in LSl Jones, 297. 15. Where a person with his horse and buggy carried a debtor to a railroad station, and there procured money lor him to (lia- ble him to leave the state, knowing that he was going to avoid his creditors; it icas field that lie was guilty of a fraudulent re- moval within the meaning of the statute. Mqffit v. Burgess, 8 Jones 342. V. FRAUD IS THE EXECUTION OP A DEED OR OTHER INSTRUMENT. 1. If one be so drunk that he does not know what lie is about, and in that situation is iiulueed to sign a paper fora debt he did not owe, it is a fraud; and fraud practiced upon a man, drunk or sober, will vitiate the instrument signed by him. King v. Bryant, 2 Hay., 394, (591.) 2. Fraud, in obtaining a bond, will vitiate it, and evidence, tending to show such fraud, is admissible under the general issue of non est factum. Perry v. Fleming, 2 Car. L. 1!., 45s, (344.) 3. Where a sheriff's deed conveyed three hundred acres, but it was proved that he intended to convey only one hundred and twenty, and would not have executed the deed, had not the courses, of which he was ignorant, been inserted in such a way as to deceive him as to the quantity, // was held that fchel'deed was not conclusive, and that the question ought to have been left to the jury, to say whether or not. it was fraudulently ob- tained for of such question the court of law had cognizance aR well as a court of equity. UvKr ill v. Cheek, 2 Hawks. 343. 4. Fraud, in the execution of a deed, may be averred at law ; FRAUD. — V.- VI. 641 but fraud in the consideration can generally be relieved only in equity, except where the conveyance is avoided by statute. Logan v. Simmons, 1 Dev. and Bat., 13. 5. In an action at law against the maker of a deed, which he aches for fraud, the only fraud he can allege must be in procuring the execution of the deed; and, therefore, evidence that lie was imposed upon by the other party in a contract, the performance of which this deecr; subsequently executed, was in- tende to secure, is irrelevant and inadmissible. Eeedv. Mcore, 3 Ired., 310. >i. .V fraud in the consideration or treaty, on which a deed is obtained, is a ground fur impeaching it hi equity, but do avoid it at law. To have that affect, it is necessary that the ex- ecution of the deed should be obtained by fraud, so as to a case for tiie defendant on the plea of,, ■ . act m. Can >y v. Troutman, 7 [red., 155. 7. If there be fraud, not in the execution of a deed, but in the ci msid rati >n, or in the false repri sentation of a collateral fact, bh ■ party was i into th i contract by ex ecutin i deed will be valid in a court of law Grant v. Hun mch r, 12 1 red, 25 i. Eo avoid a deed a 1 lasv, under the plea of non est factum, ad, the fraud must be in the fact} . by substituting one paper for anotb , so as to show that the party did not intend to execute the paper he was made al and deliver. Nickollsv. Holmes, 1 Jones, 360. y. A d in a court of law, notwithstanding any fraud in tlio consideration of it, or in the isentation of a col- lateral tact, which induced the party to -ait. a- into it. It is only fraud in the factum, that will amount taa defence in a courl of Lav . t Jones, 168. vi. ... - w.i:-\ 1. Wh aeiri with the owner, runs up the ty ami it is a to him, ho may hold it against the ov ler, because ' : ■ owner cannot re ■• iv i t his own fraud. v. Johnston, 2 Hay., 328, (498.) iction sales, rlythose made by a sheriff under a . p., are founded on th< idea ol a fair competition between the ; and as tin employment oJ puffers i a raud upon t$e vendee, s i an associate n o!' bidders d signed to stifle competi- tion is a fraud ■ vendor; and a sale effected by such means is void even a lav . and a deed, executed i i consequence of it, conveys no title. But the rule is different, when the association lias ma for irs object 'ho stifling of competition, but is formed be- cause a single person, from the magnitude of the purchase oi 41 642 FRAUD.— VI— FREE PEESONS OF COLOR. other good cause, is unable or unwilling to bid on his own ac- count. Smith v. Greenlee, 2 Dev., 126. See (Fraud — Conveyance, Fraudulent as to subsequent pur- chasers, 13.) FREE PERSONS OF COLOR. 1. The term "free person of color" in our penal statutes, is to be understood to mean a person descended from a negro within the fourth degree inclusive, though au ancestor in each intervening generation was white. State v. Dempsey, 9 Ired., 384. (See Rev. Code, eh. 107, sec. 79.) 2. The notice required by the act, Rev. .Stat., ch. Ill, sec. 65, to subject a free person of color to the penalty of $500, if he shall not remove, within twenty days, must be served personally; and it is not sufficient if only left at the dwelling house of the party. Siaie v. Jacobs, 2 Jones, 52. (The law afterwards changed, and the act of immigrating into the State made a misdemeanor. See Rev. Code, ch. 107, sec. 54,) 3. Under the 79th sec. of the 107th chap, of the Rev. Code, .". person must have in his veins less than one sixteenth part of negro blood, before he will cease to be a free negro. State v. Chavers, 5 Jones 11. 4. " Free negroes " and " free persons of color " are generally, though not always, mentioned in the Rev. Code, eh. 107, as the same, ami, therefore, an indictment, charging the defendant asa "free person of color" with carrying arms, cannot be sustained because the act, Rev. Code, eh. L07, sec. 66, uses the term "free negroes." Ibid. 5. The comity court, under the power to grant a free negro a general license to carry a gun, may grant him a restricted one, such as to carry it only on his own land. State v. Ii< . Jones, 448. 0. A free negro has a right to strike a white man to protect himself from greatly Lodily harm or grievous oppression. Slate v. Davis, 7 Junes, 52. 7. If a free negro sell his services for a valuable considera- tion, by deed, for ninety-nine years, he does not thereby cease to be a free man. Casey v. Sobdrds, 2 Winst., 39. See (Bonds — Of the consideration, 14.) (Constitution — Acts which have been declared constitutional. 15-19.) (Constitu- tion — Construction of various clauses oi the constitution, 12.) (Indictment — In what cases an indictment will lie, 75-87-98.) (Indictment— Form and matters relating thereto, 125-150.) FREE PERSONS OF COLOR— FREIGHT, &c. 643 (Indictment — Of the trial, verdict and judgment, 40-47-70.) (Insolvent debtors — Proceedings under the act of 1822, and sub- sequent acts, 16.) FREIGHT. See (Vessel, 7-11-12.) FUNERAL EXPENSES. See (Executors and Administrators — Of their liability for funeral expenses.) GAMING. I. Horse racing. I III. What gaming is made indicta- II. Gaming contracts other than horse ble. ra'.-ni'j HORSE RACING. 1. The opinion of the of a horse race (when such racing had not bei ivas held not to be conclusive; but that th ■ irwards examined by a jury. tony produced lefoi iams v. Gal .. i. | 19.) " S. P., Woor 7. Sim m, 1 Mui-ph. 33. 2. Where the bets were deposit id with a stakeholder, he was >n to 1 rinnin rty. Ibid. 3. When parties enter into a racing contract, it will be gov erned in a i -1' racing. McKenzie v 1 Hay., 502, (578.) S. C, 2 Hay., 161, (346.) 4. When th > lecined the weight to be car- ried it must be proved that the rider was weighed. Gritcher v. Parker, 2 Hay., 171, (360.) 5. When, by the agreement in a horse race, bond with security was to be given by each party by a specified time, the failure of 644 GAMING.— I. either to do so, by the time, will put it in the power of the other to declare off. Hunter v. Parka; 2 Hay., 178, (373.) 6. The articles specified the terms of the race and money betted, and although there was no obligation distinct from the articles, yet the articles, detailing all that could have been set forth in an obligation and articles, are equivalent to the bond required by the act of 1800, ch. 21. Hunter v. Bynum, 2 Hay., 354, (545.) 7. Before the winner in a race can recover, he must prove that his horse, carried through the paths the weight he received at the starting poles. Farrell v. Patterson, 2 Hay., 362, (555.) 8. If a race is in be run at A's quarter paths, plaintiff need in,! prove that he did actually run a quarter, otherwise if the agreement be to run a quarter at A's paths. Ibid. 9. If the articles are not to play or pay, the party refusing to vim must pay half the sum betted. Ibid. S. P., Hunter v. Bynum, 2 Hay., 354. (54:;.) 10. ln'an action of debt upon a racing bond, when il is nut said in the articles whether it is a play or j mi race, the plaintiff is only entitled to half the sum betted, provided the defendahl i1 run, and he must recover that in another form of action. Hunter v. Stroucl, 2 Hay., 403, (608.) ii. A horse racing contract must be in writing, and parol evi- is not aclrnisi ibleto contradict it. Sharpv, Murphy, Coni'. Rep., 521, (568.) S. P. Moore v. Parker, Ibid, 553. (573.') S. C, 1 Murph., 37, Gritcher v. Panned, Conf. Rep. 545, (573.) S. ('.. ] Murph., 22, Jackson v. Anderson, 1 Murph., 137. 12. .V and B entered into a covenant to run a horse race with C and !; mi a certain day for $500, to be staked in bonds with approved security, \ alone executed a bond with security, but gave (' and 1> no notice of it. In an action of covenant by A and B against G and I'. // was held that they could not recover, because, 1st, tin bond staked was signed by A and not byB; and, 2ndly, ; i tits had no notice of ii. Hunter v. Jack- son, 1 Car. Law. Eepos., 250, (21.) 13. Under the act of 1800 respecting horse racing contracts, a race may be made on cue day, and the articles of the race, and In bond tor the money bet, may be reduced to writing and signed by the ] arties on another day; but the contract shad not be reduced to writing on one day, and signed by the partii s on a subsequent day, the act declaring "■that all such contracts shall be reduced to writing, and signi d by the -parties thereto at the time they arc made.' Brown v. Brady,, 2 Murph., 117. 14. Where the articles of a race specify the sum, but say noth- ing of the time of payment, the money is payable on the day of the race, and must then be staked. Tinnen v. AUis< n. 2 Car. L. I!., 107. (205.) 15. A horse racing contract having been illegal bv the act of 1810, GAMING— I.-II.-III. 645 it W i s held that one of the betters might recover, from a stakehol- der, money, which he had deposited "with him, and which the stake- holder, after notice not to do so, had paid over to the party who claimed to be the winner; the general rule being that, in an ille- gal transaction, money may always be stopped while in transitu to the party claiming it under such illegal transaction. Wood v. Wood, 3 Murph., 172. S. 1'., Forrest v. Hart, Ibid, 458. (All ag or wagering en horse races was made void by the act of 1810. See 1st hew Stat., ch. 51.) H. GAMING CONTRACTS OTHER THAN IIORSE RACING. 1. Money lent to play with at gaming, or to pay at the time of loss overable; bul it is otherwise of a gaming debt ' a third person at the request of the loser. Moo . Mar., 52. (See Rev. Code. ch. 51. sec. 2. ) 2. If money or property won by gaming be paid, it cannot be id ; ack . ,' . 2 Hay, 231. (409,) S. P., Stowett - 7. (484,) Hodges v. Pitman, 2 Car. Law (276.) ;i. A p irson, having no interest in a slave who was sup lost, pays a premium and has him insured, the transaction being fair, the person insured m being shown that the slave was lost. Shepherd v. Sawyer, 2 Murph., 26. (All gaming contracts are now void. Rev. Code. ch.. 51. s sc. 1- | 4. A judgment of a justice, won at cards, cannot lie recovered back un ler the act of 1784. Hudspeth v. Wilson, 2 Dev., 372. 5, Where a man is cheated out of his money, though it be in .: at a game forbidden by law, he may recover back what he has paid, irom the person who practiced the fraud upon him. [red., 185. See (Bonds — Of the consideration 10.) III. WHAT GAMING IS MADE INDICTABLE. 1. The playing- at cards for money or property, in a counting ii attached to, and under the same roof with, a store room in which spirituous liquors arc retailed, fills within the act of 1831, forbidding the playing "at any game of cards in any house where spirituous liquors are retailed, or any outhouse or store attached thereto, or any part of the premises occupied with such house." State v. T. rry, 4 Dev. and Bat., 185. (See Rev. Code, ch. 34, sec. 7."). 2. In an indictment on this act, it is sufficient to show that the spirituous Liquors were, in fact, retailed in the house in which the playing took place; and it is no defence for the defendants 646 GAMING— GENERAL ASSEMBLY. that the retailer has not lawfully obtained a license to retail. Ibid. 3. Under the 69th section of the 34th chapter of the Kevised Statutes, an indictment will not lie against one for playing at a game of cards in a tavern, if he do not bet on the game, though the other players may bet. The act embraces two cases, the playing and betting at cards in a tavern, and the merely betting upon a game played by others, but does not reach the case of playing without betting. State v. Sniitherman, 1 Ired., 14. (Play- ing at cards in a tavern, &c, upon which there is betting, is now table, though the defendant is only a player and not one of etters. See Rev. Code, ch. 34, sec. 75.) 4. Keeping a gaming table, called " shuffle board," is not in- dictable under the act concerning gaming, the jury having found that the game was not one of chance, but of skill. State v. Bishop, 8 lred., 266. (See Rev. Code, ch. 34, sec. 72.) 5. The game of ten pins is not a game of chance, and, there- claying at it is not indictable under the act. State v. Gvpton, 8 Ired., 271. (See Rev. Code, ch. 34, sec. 72. 6. Under the statute against gaming, the place of gaming and the place of retailing must be the same house, or, at least, parts if the same establishment. "The premises" mean those places only, which are occupied by the retailer, with the house in which l;e retails, as one whole. State v. Black,fi Ired., 378. (See Rev Code, ch. 34, sec. 75.) 7. Where, upon the trial of an indictment for unlawfully play- ing cards in a tavern, it appeared that the room, in which the game was played by the defendants, was in the basement of the tavern house, but had been let by the month for a shoe simp, and was not under the control of the landlord, it teas held that it was not an indietable offence under the Revised Code, ch. 34, sec. 75, even though the owner of the shoe shop and his wife were boarders at the tavern. State v. Keisler,. 6 Jones, 73. 8. Persons who play at a game of cards on which there is bet- ling, as well as the betters, are indictable, if the playing be in a tavern, &c, but the players are not indictable, if neither they nor any other person bet on the game, though it is in a public tavern, &c. State v. Brann&n, 8 Jones, 208. (See Rev. Code, ch. 34, sec. 75.) See (Indictment — When an indictment will lie, 26-31.) (In- dictment — Form and matters relating thereto, 87-112.) GENERAL ASSEMBLY. See (Constitution — Construction of various clauses of the con- stitution, 13-14-17-18.) GENERAL KULES. 647 GENERAL RULES PRESCRIBED AT JANUARY TERM, 1815. The Judges of the Bupreme court, with a view to improve the administration of justice by expediting the trial of causes, and precluding a laxity of practice tending to impair the security and rights of the citizens, have availed themselves of the power confided by the act of Assembly, (see Rev. Code, ch. 33, sec. 13,) and established the following RULES OF PRACTICE. 1. (The first part of the first rule was temporary and is omit- ted.) And no cause in equity shall hereafter be set for hearing until the testimony shall be complefo d. 2. That in all suits at law brought on for trial at the ensuing fall t mi, or thereafter, declarations shall be filed before the trial; and no suit shall be tried after that period, unless tliis rule be complied with. 3. That in all causes, civil and criminal, where no evidence is introduced by the defendant, the right of reply and conclusion shall belong to his counsel. 4. Where several counsel are employed on the same side, the examination, or cross-examination, of each witness shall be con- ducted by one counsel; but the counsel may change with each bucci issive witness. 5. When a party in a civil suit moves for a continuance on ac- count of absent testimony, such party shall state, in a written affidavit, the nature of such testimony, and what he expects to prove by it. 6. No person who is bail in any suit, either civil or criminal, or who is security for the prosecution of any suit, shall appear as counsel or attorney in the same cause. And it shall be the duty of tire clerks of the several superior courts to state, on the docket for the court, the names of the bail and security for the prosecution, in each case. 7. Xo entry shall be made on the records of the superior courts (the appearance docket excepted) by any other person than the clerk, or his regular deputy. 8. In all cases of general replication, no special matter shall be heard. 9. From and after the next term of the supreme court, no ap- plicant for license to practice law in the courts of this state shall be a mined except during the terms of the supreme court. License to practice in the county courts only shall Be granted in the first instance. Nor shall any person be admitted to practice S18 GENERAL RULES. in the superior courts, until one year after having obtained li- cense to practice in the county courts. 2 Car. L. R. 123. GENERAL RULES ADOPTED AT JUNE TER3I, 1847. 1. All applicants for admission to the bar must present them- selves for examination within the first two clays of the re pect- tive terms. 2. All causes, which shall be docketed before the eighth day of a term, shall stand for trial during- that term. All appeals, which shall be docketed afterwards, shall be tried or continued [i 1 1n' option of the appellee. All suits in equity, transferred to this court for hearing, and not docketed before the eighth day of a term, shall be continued at the option of either party. 3. During the two first days of the term, the court will hear motions, ami try causes by the consent of the counsel on both sides. On the third day of the term, the court will proceed reg- ularly with the dockets: first, with that of the state: secondly, the equity; and, thirdly, the law causes. 4. For the court held at Raleigh, the clerk will ducket the causes in the following order, namely: Those from the fifth cir- cuit shall be placed first; then those from the fourth circuit, and so on to the first circuit. 5. For the court held at Morganton, the cleric will docket the causes in the following order, namely: Those from the seventh circuit shall be placed first; and then those from the sixth cir- cuit; and then those from other counties. ft. When causes are called, they must be tried or continued. unless, for special cause, the court should extend the time for the argument, and except that equity causes under a reference may be kept open a reasonable time for the coming in of the reports. and filing and arguing exceptions. 8 Jred., 211. General Order of December Term, 1849. The judges of the supreme court will hereafter require that applicants for license shall have gone through the following courses of reading: For the. County Courts. Blackstone's Commentaries, 4 vols.. 2d volume 'particularly; Coke on Littleton, or Cruise's Digest ; Fcarne on Remainders and Executory Devises; Sanders on Uses and Trusts; Roper on Legacies, or Toller or Iredell on Executors; Revised Statutes, chapter 37, Deed and Conveyances.; 38, Descents; 121, Widows; 122, Wills and Testaments. GENERAL RULES.— GIFTS— I. 649 For the Superior Courts. Third book of Blackstone ; First volume of Chitty's Pleadings: Stephen on Pleading; Fonblanque's, or Adams' Equity; Newland or Powell "ii Contracts; Mitford's or Cooper's Equity Pleading; Fourth book of Blackstone; First volume of Phillips or Starlrie on Evidence; Revised Statutes, < .Courts County and Su- : 34, < !rim€ 3 and Pun 1 ; 63, Lands of d Di btors; Selwyn's Nisi Prius. 10 [red., 607. General Rule at December T< rm, 1853. It is ordered that the causes be called on the third day of thi term, beginning with the first circuit (Equity and Law,) then the second circuit, and so on; and the clerk will docket the - according to this arrangement. GIFTS. I. Gifts ol 6laves prior to, or indepen- 1 III. Gifts of chattel property other than lent' ai I 306 II. Gifts of slaves since the act of 1806. j Note. — Slavery is now abolished in North Carolina. See the note to the title oi i. gifts of slaves prior to, oil independent of, the ac i 0] i (rev. code, ch. 37, sec. 17.) 1. In a gift of a slave before the act of 1806, a symbolical d< - livery was sufficient. Arringkm v. Arrington, 1 Hay., i. (< Over- ruled. See Adams v. Hayes, 2 [red., 361.) 2. [fa lather, on the marriage of his daughter, put anegro.or r-ther p 1 cb tttel, into the possession of his son-in-law, bet lore the act of 1806, it was in Law a gift, unless the contrary could be shown. Farrel v. Perry, 1 Hay, 2. S. P., Garter v. Rutland, Ibid, 97, (112.) Purler v. Phillips, Ibid, 451, (519.) Kfflingsioorth v. Zdlicoffer, 2 Hay., 72, (240.) S. (.'.. Tay. 143, f.ss.) ' Mitchell v. Cheeves, 2 Hay.'. 126, (287.) 3. Under the act of 1784, as against purchasers, a gift of a slave to a child must be bv a deed registered. Lotha,,* v 2 Hay.. 66, (233.) 4. When there is no ere liter or purchaser, it is not nee sssary. Anonymous, 2 Hay., 86, (25G.) S. P., Hancock v. Hwey, Tay., 104. (60.) 650 GIFTS— I. 5. A gift of slaves for life, with a limitation over, is, as in the case of other personal property, a gift of the absolute property to the donee for life. Cutlar v. Spiller, 2 Hay., 130, (2 ( J5.) S. P., Gilbert v. Murdoch, Hid, 182, (380.) (See Eev. Code, ch. 37, sec. 21.) 6. Under the act of 1784, all gifts of slaves not in writing, or not attested by a subscribing witnesses, were void against creditors and purchasers, whether i Ik y had notice < if the gift or not. Pearson v. Fisher, 1 Car. L. R, 460,' (72.) S. P., Sherman v. Russell, 1 Car. ..11.467,(79.) McCree-v. Houston, 3 Murph., 429. Wat- ford v. Pitt, 3 Murph., 468. Harris v. Yarborough, 4 Dev., 166. 7. A gift of a slave to his daughter by a father, reserving a life estate, held good. Duncan v. Self, 1 Murph., 466. (See Rev. ch. 37, sec. 21.) 8. Where a mother, prior to the act of 1806, made a parol gift of slaves to her children, but reserving to herself a life .state, and afterwards married, it was held that the reservation of a life estate in such a gift was void, that her possession, being with the consent of the children, was not adverse to their claim, and that they had a right to recover the slave from her second husband, at any time within three years after her death. Vass v. Hicks, 3 Murph., 493. 9. The seventh section of the act of 1784, requiring sales and gifts of slaves to be in writing, attested by a witness anil regis- tered, was passed for the protection of creditors and purchasers only ; and under it a gift or sale is good between the parties without a deed properly attested, and, if by deed thus attested, without its being registered. Palmer v. Faucit, 2 Dev., 240. 10. A, living in North Carolina, having sent certain slaves to his son-in-law B, who lived in South Carolida, afterwards went to tin/ plantation of B in that state, where the slaves were then in his possession, and told B, in the presence of other persons, " that he (A) had no claim to the negroes, or the other property that hail been sent to B's wife," and said further " that the ne- groes were the property of B, that B might dispose of them as he saw proper, and that he (A) had no claim to them." It was hehl that, as the law of South Carolina was admitted to be the same as the common law respecting parol gifts of other personal chattels, this was not a gift of the negroes to B; that, to consti- tute a valid parol gift of personal chattels, actual delivery is ne- cessary, that is, some act is required by which the possession of the thing delivered shall be transferred from the donor to the donee; and that the circumstance that the negroes were in the actual possession of the donee, at the time the parol declaration of gift was made, formed no exception to the general rule. Ad- ams v. Hayes, 2 Ired., 361. 11. Where slaves had been bailed by a father-in law, living in Virginia, to his son-in-law living in this state, mere words of gift GIFTS— I.-II. 651 afterwards used, in the absence of the slaves, were held not to be sufficient to pass the property; as actual delivery is essential to the validity of a gift. Davix v. Boyd, 6 Jones, 249. See (Slaves — Sales and gifts of slaves, 20-26.) II. GIFTS OF SLAVES SINCE THE ACT OF 1806. 1. A written transfer is necessary, under the act of 1806, in all eases where one person gives slaves to another. Cotton v. Pow- ell, 2 Car. L. R., 431, (313.) (See Eev. Code, ch. 37, sec. 17.) 2. The third section of the act of 1806, relating to gifts of slaves theretofore made, referred only to adverse claims. Drew v. Drew, 2 Car. L. R., 437, (321.) 3. Under the second proviso of the third section of the 1806, a slave, who. under a parol gift, remains hi the possi of a child until the death of the parent intestate, is excepted. In such case the slave is to he considered an advancement to the child. Such advancement is a gift, or not, at the option of the child. If, after the death of the parent, he elect to bring it into hotchpot, he may do so and come in for a distributive share, but if he be satisfied with what he has received, he may consider it as ;■ gift protected by the proviso; and this proviso is not con- fined to gifts theretofore made, but extends also to gifts there- after to be made. Davis v. Brooks, 3 Murph., 133. S. P., Thomp- son, v. Todd, 2 Dev. and Bat., 63. 4. Where a father prior to 1806 put into the possession of his daughter, upon her marriage, a slave, and afterwards sold the slave and purchased a tract of land for his son-in-law and daugh- ter to live on, and then, after the year 1806, let her have another .itter which her husband died, and she married a second husband, who sold the slave, it was held that the father could recover the slave from the purchaser, because his daughter had no title as donee, for want of a written deed of gift, nor could she claim as purchaser, in consecpience of the sale by her lather of the slave, because he belonged to her first husband jure marita. Barroiu v. Pender, 3 Murph., 483. 5. The words of the 3rd section of the act of 1806, relative to the gifts of slaves, " every person claiming title to any slave, by virtue of any parol gift heretofore made, shall commence and prosecute his suit for the same, within three years from the pas- sing of the act, otherwise the same shall be forever barred," mean that the rented)/ shall lie barred and not the right. Skiii- ner v. Skinner, 3 Murph., 535. S. P., Lynch v. Ashe, 1 Hawks, 338. 6. A deed of gift for slaves, not attested by a subscribing witness, is void. Atkinson v. Clarke, 3 Dev., 171. 7. A gift of slaves made by an instrument not under seal, and 652 GIFTS— I.-II. unaccompanied by delivery, is void. Morrow v. Williams, 3 Dev., 263. 8. The gift of a slave by parol, since the act of 1806, operates as a bailment; and no length of possession under such gift will raise a presumption of title in the donee. Hill v. Hughes, 1 Dev. and Bat., 336. 9. If the donee of a slave, under a parol gift, convey him in trust to secure creditors, but, by a stipulation in the deed, still retains possession, such possession is not the possession of the alienee, so as to operate as a liar to the donor under the statute of limitations. Ibid. 10. Where one made a parol gift of slaves to his son-in-law, and the latter by direction of the former, gave them by his will. to the grandchildren of the donor, d that this did not constitute a gift in writing, within the act of J806, and that the donor might, after the death of his son-in-law, resume the pos- session of theni. Bennett v. Flowers, 1 Dev. and Tat.. 467. 11. Where one, upon the marriage of his daughter, made a parol gift of slaves to her husband, who died leaving two in- fant daughters, and appointed the donor executor of his will and guardian of his children, to whom he bequeathed the slaves: it was held that the donor might, under the act of 1806, resume the poi session of them, although he had proved the will, hired them out as guardian during the minority of the legatees, ami upon their marriage had procured a division to be ma.de, and delivered the share of each in severalty. Hamlin v. A Dev. and Bat., 479, S. I'.. Alston v. Hamlin, 2 Dev. and Bat, 115. 12. The act of 1806, having been enacted on purpose to ex- clude all parol evidence of a gift of slaves, necessarily avoids every parol estoppel, that might be set up to defeat its operation. Alston v. Hamlin, 2 Dev. and Bat, 115, S. P., Knit/lit v. 11'all, 2 Dev. and Bat., 125. 13. Where a. father, since the act of 1806, places slaves in the possession of a child and dies intestate, a gift of the slaves, and not a mere loan ot them, must have been intended at the time, in order to make it an advancement Cowan v. Tucker, 5 Ired., 78. 14. Where a father had made a parol gift of slaves to a daugh- ter, and afterwards died, leaving a last will and testament, by which he only devised lands and appointed executors, lint made no disposition of his personal property, it was held that this was not such an intestacy, as was meant by the proviso to the act of 1806, and that the daughter, therefore, acquired no title to the said slaves as an advancement in the case of an intestacy, and the executors were entitled to recover them from her or her as- signees. Person v. Twitty, 6 Ired., 115. (See Rev. Code, ch. 50, sec. 12.) 15. A, in 1825, made a parol gift of a slave to her grandson B, whose father took him into possession and kept him until 1841, GIFTS— II.-III. 653 when be conveyed him together with other slaves, by a deed of gift, to his said son, and delivered him to B. In 1840, the grand- mother's husband, (she having married again) demanded the slave of tne father who refused to deliver him. B kept the slave from 1841 to 1846, treating him as his own, but in 1843 ted permission of his grandmother to pell the slave, which was refused; and it was held that B's possession under those eir- Ebr five years, even with a constant claim of could not divest the right ol his grandmother's husband. Gra- v. Davidson, If bred., 245. 16. The donee of a slave by parol is the bailee of the donor, and no length of possession, although on a claim of property, will constitute a title in him, unless there has been a demand and refusal, or some act done in opposition to the will of the do- nor, changing the nature of the possession. Baxter v. 1, 13 Ired., 459. 17. A deed of gift for slaves, expressed to be for natural love ■ I"-, irds a bastard child, is good propria vigore, the slaves were not delivered at the time of the u- of the deed. Gordon v. Wilson, 4 Jones, 64. 18. Where slaves were put into the hands of a son-in-law by isr-iii-law, under a written agreement that they were to a, a subsequent written contract under seal, in which her-in-law agrees and binds himself to surrender all light and title, &c, an I binds himself to sign any paper writing such title as will be vali iws of North Carolina, wa \ held no1 to operate as a con- ■ of a present interest, bul only as an agreement to make a title in future. Davisv. Boyd, 6j Jones 24!) 18. Where a testator gave to bis wife, whom he app ixecutrix, all his slaves, with power to allot them, from time to mong their childn n an I she afterwards did so. it mas held ied not be in writing, as the children I the slaves under the will, and their mother, in making nts, was only performing her duty as executrix. (Jrlf- ' ■. ■ , 7 Jones, 520. See (Slaves— fcrifl of laves since the act of 1806, 6-17-20-26.) III. OF CHATTEL PROPERTY OTHER THAN SLAVES. 1. A symbolical delivery of chattels is good, when the thing given is not present to be delivered. La , Pritchard, 2 Hay., 293, | U8,) and 337. (513.) 2. When a gift of a chattel is found or stated in a ease, a de- livery is presumed, because without it there is no gift. And such possession of the donee will be presumed to continue, unless tin/ contrary be found or stated; especially if it appear that an- 654 GIFTS— GEANT— I. other claimed and exercised ownership from a particular subse- quent period. Spiers v. Alexander, 1 Hawks, 67. 3. In a parol gift, the free assent of the party is required, and deliberation and sedateness on the part of the donor'.' are only evidence of that assent. Morisey v. Bunting, 1 Dev., 3. 4. Delivery is essential to a gift. Hence, where an obligee gave his obligor an order on his agent for the delivery of the bond then in his possession, which order was disobeyed, it was held that the gift was incomplete and might be revoked, and that resuming the possession of the bond and bringing suit upon it was a revocation. Picot v. Semderson, 1 Dev., 309. 5. Where a father places personal property, other than slaves, in the possession of his son, about the time he arrives at age, and suffers him to continue such possession, uncontrolled, for a con- siderable time, using it as his own, the law implies a gift, which can only be rebutted by express evidence of a mere loan. Hollo- well v. Skinner, 4 Ired., 165. 6. Where a father puts his son in possession of a plantation and slaves, and permits him for three years to appropriate the crops to his own use, the crop of the fourth year, as well as the preceding ones, is to be considered as a gift from the father to the son, and liable to the claim of the son's creditors. Skinner v. Skinner, 4 Ired, 175. GRANT. I. What may or may not be granted, and of the effect of a grant. II Of the effect of an exception in a grant. III. Of the presumption of a grant. IV. How and when grants may be avoided. I. WHAT MAY OR MAY NOT BE GRANTED, AND OF THE EFFECT OF A GRANT. 1. Where two grants bear date on the same day, that which has the earliest or smallest number shall be entitled to the prior- ity. Andrews v. Mulford, 1 Hay, 311, (358.) S. P., Foreman v Tyson, Ibid, 396, (571.) 2. When two grants bear date on the same day, the number of the grant wiUbe looked to only where there is no other circum- stance; but as the number is no part of the grant, if the grant having the lower number? call for the lands having the higher number, the latter shall be deemed the prior grant. BedtMckv Leggett, 3 Murph., 539. 3. Under the act of 1794, a grant from the state, conveying GRANT— I. 655 more than six hundred and forty acres of land, is good. Men- denhallv. Cassels, 3 Dev. and Bat., 49. (See Rev. Code of 1820, ch. 422.) 4. If a grant cover, in part, land not liable to entry, or which has been previously granted, it will be good for the land com- prehended in it, which had not been granted, and was liable to entry. Hough v. Dumas, 4 Dev. and Bat., 328. 5. At common law, land covered by water was the subject ot a grant, except where the tide ebbed and flowed, and so it was in this state in the year 1839, the former legislative restrictions having been repealed by the Revised Statutes of 183(3, and not re-enacted until after the grant in this case was taken out. Hat- field v. Grimstead, 7 Ired., 139. (See for the present law on the subject, Rev. Code. ch. 42, sec. 1.) 6. Where surveys are made on any navigable water, the wa- ter shall form one side of the survey. And any island or islands in any navigable water may be entered, surveyed and granted., and where the water is not navigable, the land may be granted, though it is covered by the water, as for instance, the bed of an unnavigable river may be the subject of entry and grant. Smith v. Ingram, 7 Ired., 175. 7. Land lying between the high and low water marks of the tides of the ocean, or of a navigable stream, is not subject to entry and grant under the laws of this state. Wardx. Willis, 6 Jones, 183. 8. All the unappropriated swamp lands in this state were, by the acts of 1825 and 1836, vested in the president and di of the literary fund, and the provision of entering and takin ,< ; . os- session if, spoken of by the act of 1850, applies only to such lands as may have been forfeited for non-registration of grants by which they were held under the act of 1836, or for the non-pay- ment of taxes under the act of 1*42 ; so that a grant by the state of unappropriated swamp lands, not coming within the provis- ions of the two latter acts, is void. Wldte v. I'; rry, 6 Jones, 198. 9. The act of L8 '"> for running theb line between this stat'- and South Carolina was int< tided to confirm, and did con- firm, the first "rants by either state within the disputed territo- ry, a id all territory must be considered as having been disputed, for which the respective states had opened land offices and is- ants. Freeman v. Lqftis, (> Jones, 524. 10. AH the bays and inlets on our coast, where the tide from the sea ebbs and .lows, and all other water courses, whether sounds, rivers or creeks, which can be navigated by sea vessels, an- called navigable, and are altogether publici juris, and the soil un ler them cannot lie entered, and a grant taken for them un- der the entry law. State v. Glenn, 7 -Jones, 321. 11. Where the tide ebbs and flows, the shore, between the high and low water mark, cannot be entered and granted under the (350 GRANT— I..-H-III. general law, but may be the subject of special legislative grant Ibid. 12. All rivers, creeks and other water courses, which are not navigable tor sea vessels, though they may be wide and deep enough to be navigable by boats, flats and rafts, may have the soil under them entered and granted under the entry law. Ihid. S. 1'., Cornelius v. Glenn, 7 Jones, 512. See (Covenant 41.) (Registration 5-10-22.) II. OF THE EFFECT OP AX EXCEPTION IN A GKANT. 1. Where there is an exception in a grant, the onus of proof lies upon the party who would take advantage of that exception. nick v. Monroe, 1 Jones, 13. III. OF TI1F, PRESUMPTION OF A GKANT. 1. When land is designated by known and visible boundaries and lias been possessed for sixty years, it affords at the common law tlio presumption of a, grant. Dudley v. Strange, 2 Hay., 12. 2. lli^' jury may presume a grant from length oi possession. SvRivant v. Alston, 2 Hay., 128, (290.) S. P., Hanks v. 1 I 1:7, (321.) _ :.!. Circumstantial proof, even the admission of the opposite party is not sufficient, without possession, to raise the presump- tion of a grant. Clark v. Arnold, 2 Hay., 287, (467.) S. P., Cutter v. Blackman, 2 Car. Law Eepos. 566,(368.) Dancy v. Sugg, - Dev. and Bat., 515. 4. A grant may lie presumed from great length of possession, although no privity can be traced between the successive ten- ants. And in such a ease, a color of title for the land, as to part of the time, may be offered to tin' jury as a circumstance in aid of the presumption. Fitzrandol ph v. Norman, X. C. Term R. 121, (564) 5. The act of 1791, making certain possessions valid against the sfaii', does not affect the common law principle of presuming a grant. Ibid. (See Rev. Code, ch. 65, sec 2.) 6. Twenty years enjoyment of a franchise raises the presump- tion of a grant of it. Pipkin v. Wynns, 2 Dev. 402. 7. Where lands have been overflowed by a mill pond for forty years, without any claim for damages by the owner, the jury may, from the acquiescence, presume a. grant of the easement; ami ought to do so, unless the presumption is rebutted by con- trary evidence. Wilson v. Wilson, 4 Dev., 154. 8. From long and uninterrupted possession of land a grant may be presumed. This presumption is not merely one of fact, which a jury may make; but it is a presumption which the law GEAXT".— III. 657 requires, and the -court should direct the jury to make, unless proof is offered which shows the fact to be otherwise. Rojers. v. Mate, 4 Dev., 180. 9. To raise this presumption between individuals, twenty years is sufficient; and in cases not within the act of 1826, less than twenty years is not. As against the State the precise pe- riod is in >t settled; but forty years is certainly sufficient. This presumption extends not only to grants and deeds, but to every thing necessary to support the. title of the possessor. Ibid. Id. When, however, it appears that one entered originally not as owner, but under the title of another, even a very long pos- session will not raise this species of presumption- j'-there an actual conveyance must be shown or presumed by the jury, and there ought to be evidence that, at some time, the possession became adverse, and was thereafter so long continued, -as to induce the actual belief that there was a subsequent deed. Ibid. 11. The ground, on which is presumed a grant of the privilege of ponding water on another's land for the purpose of a mill, is that it has bet a enjoved by the person claiming, and those with whom he connects himself, for twenty years or more, in the state or to the extent to which he claims. Gerenger v. Summers, 2 Ired,, 229.- 1:.'. It is mi answer to this presumption, that the height of'the water has been sometimes lowered by a draught, or that the water has been occasionally let oil' for the purpose of repairing the mill, and only fur the period required for such purpose. Ibid. 13. A person who has acquired, by presumption of law, the grant of a right to pond water on another's land to a certain height, is not thereby entitled to increase tin/ height of such pond, but, if he do, he is liable in damages for the excess ; and it is incumbent on him. who claims the privilege to pond water, to show that that privilege authorized him to pond the water as high as he now ponds it. Morris v. Commander, 3 Ired., 510. 14. For the purpose of presuming a grant of an exclusive right of fishing in any person, it should appear that all others have been kept out by him and his grantors, not only from fish- ing with a seine, but from fishing in any manner, in the waters to which he lays claim. Collins v. Benbury, 5 Ired., 118. 15. Where A, B, (' and D had had possession of a tract of land for upwards of forty years, under successive conveyances from A tn 1'.. from 1) to C, and from C to D, with the exception of five years, between the twentieth and twenty-fifth year, during which period no possession was proved, it xcas held that. notwithstanding the five years interval, a presumption of a grant from the State arose; for that a continuous, unceasing posses- sion was not necessary to raise such a presumption. Reed v. Earnhart, 10 Ired., 516. 16. The presumption of a grant from long possession is not 42 658 GRANT.— HI. based upon the idea that one actually issued: but because pub- lic policy and " the quieting of titles make it necessary to act upon that presumption.'' The presumption can only be repelled 1 iv proof of the fact that the State never did part with its title. Ibid. 17. In order to raise the presumption of the grant of an ease- ment, two things are necessary; there must be a thing capable of being granted, and there must be an adverse possession or as- sertion of right, so as to expose the party to an action unless he had a grant. FeUon v. Simpson, 11 Ired., 84. 18. No mere possession ol land for a period less than thirty years will authorize the presumption of a grant. Mason v, Mt- Liiiii. 13 Ired., 262. 19. If one be in possession of land under known and visible boundaries, and, at any time before the presumption of a grant has arisen under the statute, another person procure a patent for such lands, or a part thereof, the patent interrupt the presump- tion, and the subsequent possession, though with the former, ol the length of time required by the statute will not raise the pre- sumption of a grant for the land covered by the patent. Brown v. hotter, Busb., 461. '20. The possession of a field for more than thirty years will raise the presumption of a grant, for that much, at least, of the tract on which it i ttt, 1 -'ones. 317. 21. The question of color of title, and known and visible boun- daries,arisi ctofl791,an , uol lifect the presump- tion of a grant from length of time at the common law. Ibid. (See Rev. (.'oil', eh. 65, see. :>. ) 22. From thirty years' poi tnd, according to known meets and boundaries, the law presumes not onh a; rant, bul every thing else that is necessary to complete tit title. Baker v. McDonald, 2 Jones, 244. 23. Wl ere A owned a tract of land in the form of a parallelo- gram, of which he had the actual possession of-the southern end only, and severed the two ends by sellin : from the mid- dle, and at the end of twenty-two years lie conveyed the south- ern end to B, who continued the possession until his and A'spos- session were for more than thirty years, and he then conveyedthe northern end to B by a separ te deed, having no actual occupa- tion of that end, it ipasheld that there was no such possession of the northern end for more than thirty years, as to authorize the presumption of a grant from the State for this northern end. Newsom v. Kinnamon, 1 Winst, 99. See (Evidence — Presumption, 7-8-13-14-15-22-24-25 -33^35-36-39.) (Possessi a, 8 | GRANT.— IV. 659 IV. HOW AND WHEN GRANTS MAY BE AVOIDED. 1. Whether a grant from the State, signed by the governor, and countersigned by the secretary, and registered in the regis- ter's office, but having no seal appendant, can be read in evi> dence, quaere, bteek v. Anthony, 1 Hay., 98, (114.) 2. The act of 1777 (eh. 114 of the R. C. of 1820,) Rev. Code, eh. 42, making void titles, &c. means void as to the State, which proceeds to avoid them by asci./a. As between individuals, whoever obtains the first grant shall be the owner, without re- gard tn the entry or survey, and the grant, though voidable, cannot be avoided in an action of ejectment. Reynolds v. Flinn, 1 Hay., 106, (123.) S. P., Sears v. Parker, Ibid, 126, (145.) Wrigldv. Bogan, Ibid, 176, (20.").) Dickey v. HoodenpUe, Ibid, man v. Tyson, Ibid, 496, (571.) WiUiams'v. Wells. 1 Car. Law. Rep, 383, 383, (52.) Tyrrell v. M ey, I Murph, 401. Tate v. Greenlee, 2 Hawks, 231. 3. Where in a caveat the jury 'found for the defendant, but, be- was confirmed by the county court, (he plaintiff ant^ on appeal, it was held by the superior court ant was valid, but that the plaintiff should pay the d ifendant appearing to have justice on his side. Cup* , 1 Hay., 456, (525.) 4. Grants of escheated or confiscated land, by offi ers appoint- ed to issue grants of vacant land, are void. And though the court will net, on the trial of an ejeetin nt, cancel the grant, it it to he void. University v. Sawyer, Tay., 114. (67.) Hay., 98, (2.18.) 5. A court of law will receive parol evidence to show that the officers of the State have issued a granl for lands forbidden by ed, and will take notice- that such is void. But where a grant has merely issued irregularly, oid it must resort to a court of equity. ;. 1 Murph., 162. (i. Evidence to p rson,. under whom the defen- i -,i- the ti ;ie he made liis entry, and hi did not make his entry in the manner presciibed by the 777, (which declares the entry void, unless made as the ible iii an action of ejectment Tend! v. Moor, ■•, 1 Murph., 491. '. a., under the ad of 1798, to vacate lurchaser from bhe original grantee, (the i protected; the acl subjects to its ope- iming under the grant, and the court can ! lake no avii |ior innocent purchasers. TerreUv. Manney, 2 ,vlurph., 375. (See Rev. Code, < h 42 sec. 29.) 8. There is no limitation prescribed by the act, a dfromthe 9th lection, giving the court jurisdiction of all grants made since the 660 GRANT.— IV. 4th of July, 1776, it would seem that the legislature intended to exclude the operation of time. Ibid. 9. An instrument purporting to be a grant, being under the great seal, signed by the governor, and recorded in the Secreta- ry's office, is nevertheless void, if it be not countersigned by the secretary. Hunter v. WUUams,l Hawks, 221. 10. It is no objection t<> a grant that the secretary of state has not recorded it in his office. Shade v. Green, '1 Hawks, 218. 11. Where the subject matter of a grant is within the province of the public officer who makes it, the grant shall not be invali- date!! by any thine; dehors the grant, when it comes incidentally before the court; but it is otherwise, when its validity is directly put in issue, as on a sci. fa. to repeal it. Tate v. G eenlee, - Hawks, 231. 12. The act of 1798, which authorizes the vacating oi grants, gives no authority to interfere with mesne a mveyanoes from one man to another; a petition to vacate a grant will not lie, there- fore, against a purchaser from the original grantee, wiien the latter is not brought before the court. Terrell v. Logan, 3 Hawks, 319. 13. When a defendant has been in possession thirteen years under a grant, which was obtained with a full knowledge by the grantee of a prior grant, the second grant will be vacated, not- withstanding the length of time; the statute of limitations not applying to such cases. McB.ee v. Alexander, 3 Hawks, 322. 14. The sovereign power cannot be estopped. Where the king, in 1768, granted lands to A which he had previously grant- ed to Lord Granville, the grant to A was void; and as the State succeeded upon the revolution to Lord Granville's right to the land, a grant made by the State since, shall be preferred to the royal -rant to A. Taylor v. Shuford, 4 Hawks, llii. 15. It being fraudulent in law for a grantee to survey his own entry, if that tact be found by a jury, the grant must be vacated on a petition for that purpose, although the jury may find further, that the survey was fairly made. Greenlee v. Tate, 1 Dev., 300. 16. A grant cannot be vacated, without making the grantee, or his heirs, a party, although his interest in it has been assign- ed Bradley v. Linther, 1 Dev., 427. ■ 17. Fraud, which vacates a grant, being a compound question of law and of fact, a general verdict, that a grant was fraudu- lently obtained, is not a sufficient foundation for a judgment of repeal. Cruiv v, Holland, 1 Dev., 481. 18. A grantee cannot, under the act of 1798, maintain a sci fa. to repeal a grant for the same land, when the latter is older than the grant to him. Crow v. Holland, 4 Dev., 417. 19. A grant can only be repealed at the suit of the State or of ft prior grantee. Ibid. 20. A deed, for land held adversely to the vendor, conveys no GRANT.— IV, 661 title to the vendee, and he cannot maintain a sci. fa. to repeal a grant, under which the person in possession of the land claims. H&yle v. Logan, 4 Dew, 495. 21. An actual adverse possession for seven years is a bar to a sci. fa. to vacate the grant under which the defendant holds. Ibid. 22. The act establishing a court of patents did not enable the patentee in a junior patent to i - epeal an elder one, though his entry was prior to that of the elder patentee. FeaOierston v. Mills, A Dev., 596. S. P., O'KeUyY.. Clayton, 2 Dev. and Bat., 246. 23. A scL fa. to Tepeal a grant, under the act tit 1798, is to some purposes a proceeding in rem, but when issued at the in- stance of a private individual it is esse}ifo'a%anaetion inter partes, and a judgment therein, vacating the grant, will bind those only win i are parties or privies. MHer v, Ttoitty, ."> Dev. and Bat, 14. 24. A proceeding- in rem, which biads all persons, is confined to the proceedings of a court "exercising some peculiar juris- diction, which enables it to pronounce on the nature and qualities of a particular subject matter of a public nature and interest. independent of any private party." Ibid. 25. A grantee may, under the act of 1798, proceed to vacate a subsequent grant fraudulently obtained, with knowledge of hie previous grant, theugh the subsequent grant covers a part only ni' the land included in his "'rant. Hoyt v. Mich, 4 Dev. and Bat.. 328. 26. A petition underthe act of 1798, setting forth, as the mat- ters constituting the fraud it charges, that the defendant, " at. the time of obtaining his grant, well knew, or had reason to believe, or had received seme information, that the land had been pre- viously granted," may he demurred to tin- uncertainty; and if the defendant do not demur, but j>lead to the set. fa., it is a question whether any judgment could be pronounced for the petitioner upon it. Ibid. 27. A grant, which is sought to be vacated as having been illegally or fraudulently obtained, must (at all events where the proceeding is by sci. fa.) be vacated iti tofo, -or not at all. Ibid. 28. To support an application on the part of a grantee to va- cate a grant because of fraud in obtaining it. with knowledge of a previous grant for the same land, a case of clear fraud must lie made out. Constructive notice of the prior grant, informa- tion that might have put a prudent man upon his guard before he completed his grant, a suspicion that the land or a part of it might not be vacant and unappropriated, or that kind of notice which may be sufficient in equity to bar the plea of a purchaser for valuable consideration, is not enough to constitute the fraud contemplated by the act. Ibid. 662 GRANT.— IV. 29. A set. fa. to repeal a grant should set out particularly the grant of the plaintiff, or his title derived from a grant, with its boundaries and location, also a copy of the grant, with its boundaries, made to the defendant, or to the person under whom he claims, with all their cornet names, and how the two grants conflict; and the sci. fa. should also aver the reasons why the defendant's grant should be cancelled. If the defendant deny any of the plaintiff's allegations, issues must thereupon be made up and found by a jury; otherwise the court will not give judgment. Holland v. Crow, 5 [red., 44S. 30. A grant cannot be avoided upon evidence in an action of ejectment. Waugh v. Richardson, -s Ired., 470. 31. The granting part of a grant is not avoided by a defect in the exception ; but the exception itself becomes thereby in- effectual, and the grant remains in force. Ibid. '.VI. On a petition to vacate a junior grant by more than one person, when one only had any existing title to the premises, the misjoinder is no bar to a judgment vacating the grant. Holland v. Crow, 12 Ired., 275. 33. The relators in a petition to vacate a grant have a right to the remedy, whether they prove any actual damage or not, for the subsequent grant is per se a cloud on the owners' title, and so a grievance to them. Ibid. 34. Parties claiming under a junior grant cannot impeach an older one, directly ; and much less can they do it in a collateral manner. Ibid. 35. A grant, founded on an entry, made on land subject to entry, cannot be collaterally impeached foi defects in the entry, or irregularity in any preliminary proceeding. But where the law forbids the entry of vacant land, in a particular tract of country, a grant for a part of such land is absolutely void; and that may be shown in ejectment. Stanmire v. Powell, 13 Ired., 312. 36. A grant for land in the Cherokee country, issuing under a resolution of the general assembly, which authorized it to be located on any lands in the State " subject to entry by law," was held void; because the land in that country was prohibited by the general law from being entered. Ibid. 37. A grant for vacant land, issued upon the certificate of commissioners authorized by law to act in the premises, cannot, in an action of ejectment, be impeached for fraud, mistake, or any irregularity in the proceeding before the commissioners. Lovinggood v. Burgess, Busb., 407 38. A grant ob lined by fraud is voidable, when the land is the subject of e] y; but if it be not the subject of entry, the grant is void. McCormick v. Monroe, 1 Jones 13. 93. When the executive officers of the State have authority GRANT— GUARANTY. 663 and jurisdiction to issue grants, they cannot be impeached col- li!. rally; but it is otherwise where such officers have no author- ity' for the purpose, or where having some authority they exc ed it. Uarshaw v. Taylor, 3 Jones, 513. GUARANTY. 1. Where the defendant undertakes, in a letter to the plaintiff, that he will guarantee '-any contract which F shall make with him for a vessel and cargo," and F makes a contract for the same, but does not comply with it. the defendant becomes pledged to the same extent that F was bound, as soon as the plaintiff parts with his property. Fi >r it was the defendant who was principally relied on, and it was incumbent on him to guard against F's failure, and hasten the plaintiff, or provide for his own safety. The guaranty made by an endorser isa conditional one; but here it is absolute, to wit, that F should comply, not that he should to comply, with his contract. Williams v. Collins, 2 Car. L. R, 580, (382.) (Overruling the same case, as reported iu 2 Murph., 47.) 2. In general, a, guarantee is not bound to the highest possible degree of diligence ; but it is sufficient, ii he resort to such means as are within his power, within such time as a prudent and dis- creet man would, in like circumstances, to collect his own debt; and if, in using such diligence, lie fail to obtain satisfaction of the principal, lie is entitled to resort to the guarantor. Tonus v. Farrar, 2 Hawks, 163. 3. A, being indebted to B, assigned to him certain judgments against 0, on which execution was stayed by D, and A guaran- teed the payment of the judgments to B; before the stay of exe- cution had expired, removed from the State, and had, at the time of the trial, sufficient property out of the State to satisfy the judgment, but D, the surety for the stay, was insolvent; held that B was not bound to pursue out of the State, before he could have recourse to A on his guaranty. Ibid. 4. In articles for the purchase of land, whereby the purchaser covenanted that he would pay in notes " such as he would be nsiblu for," the covenant binds him as a guarantor. Word v. Ely, 1 Dev., 372. 5. What is due diligence is a epiestion of law, and where a guarantor was bound, after a due course of law against the prin- cipal creditor, a neglect to enter a judgment against bail, after two nihils, discharges him. Battle v. Little, 1 Dev., 381. 6. Goods were sold to be paid for in notes, the vendee agreeing G64 "GUARANTY. to take back the notes, if not good, held that the insolvency of the makers authorized the vendor to return 1 . them immediately, and that upon a tender and refusal, he was remitted to his con- tract for goods sold. Bell v. Ballance, 1 Dev. 391. 7. A general letter of credit, addressed to no particular indi- vidual, is not a guaranty, but a proposal for one, and notice of an advance on the faith of it must be given to the writer. SheW- ■ell v. Knox, 1 Dev., 404. 8. What degree of diligence a creditor must use to bind a guarantor qwere. But loss from neglect on his part isa matter ot defence tor the guarantor, and if not shown by him on the trial, a new trial will not be granted, simply because indulgence has been shown to the principal debtor. Ibid. It. Where a purchaser of goods transfers without endorsement a note in payment, he thereby guarantees that the sum expressed in the note is due, and constitutes the vendor his agent to sue for the same in his. name, and if suits be fairly brought and duly prosecuted, and a set off is established bythe maker, the vendor may resort to the purchaser for the' price of tiie goods sold. Jours v. Teargain, 1 Dev., 420. 10. An accountable receipt for a judgment under seal, which vests tic equitable title in one receiver, in law only binds him to pay what he receives on it. Bird v. Ross, 1 Dev., 172. 11. Upon such an assignment, if the assignee u'ive the full value and has no day of payment, without an agreement to the contrary, the assignor guarantees that the judgment can be col- lected; but if less than the amount be given, oraday of payment hail, the assignor only guantees the existence of the judgment. Ibid. 12. Where the liability sf a party is not direct, but collateral ami dependent upon the default of another, he must be notified of the default before he tan be sued. Grire v. Ricks, 3 Dev., 62. 13. A guarantor is entitled to notice, although to charge him the same strictness is not required as in the case of an endorser. Ibid. 14. A guaranty of "a note and judgment against A and B'" is satisfied by a joint note of both, upon which judgment has been entered against one only. Smith v. Morgan, 3 Dev., 511. l.'i. An undertaking by the guarantor to assist in the collec- tion of a debt he is bound for, does not justify laches in the party guaranteed. Ibid. lli. An assignment, for value, by endorsement of a constable's receipt, amounts but to a guaranty, and the guarantee cannot recover of his guarantor, without showing that he has used proper diligence in endeavoring to collect the claim mentioned in the receipt, either from the person from whom it is owing, or from the constable who received it for collection. Eason v. Dixon, 2 Dev. and Bat., 78. GUARANTY. 665 17. Where the plaintiff received notes in discharge of one which he had against the defendant, and the latter refused to endorse them, but promised to pay them if the plaintiff should fail to collect them, it was held that the promise was a guaranty of the notes, and that an action upon the promise was not within the jurisdiction of a single justice. Adeock v. Fleming, 2 Dev. and Bat, 470. 18. Where a purchaser of property, in payment therefor, transferred to the vendor notes upon third persons, and upon being requested to endorse the notes for the purpose of enabling the vendor to sue in his own name, refused to do so, but said "they were good," it'Was held that these words, used as they were, did not furnish any evidence of a promise to make the notes good. Carpenter v. Wall, 4 Dev. and Bat., 144. 1 '.». A guaranty is a promise to answer ft ir the payment of some debt, or the performance of some duty, in case of the failure of another person, who is himself, in the first instance, liable to such payment or performance. Ibid. 20. Where a single bill was executed by a principal and sure- ty, and afterwards another person, at the instance of the holder, but without the knowledge and assent of the makers, guaranteed the bond by endorsing upon it "this isa good bond." and signed his name, it was held that he could not, upon being compelled to pay the bond, recover from the surety as for money paid to his use. because he was not a regular endorser, and having be- come a guarantor without any express request from the makers, the law would not imply a request, and the payment of the bond under compulsion was of his own seeking. Carter v. Black, 4 Dev. and Bat,, 425. 21. In the case of an indemnity for becoming bail, the cause of action does not accrue until the bail is compelled to pay the money and docs actually pay it, Reynolds v. Magness, 2 Ired., 20. 22. Before suit is brought on a contract of indemnity, notice of the loss should be given to the party indemnifying. Ibid. 23. On a guaranty of a bond, the condition of which was that the obligor should, at a certain time, pay a certain sum of mon- ey " on receiving from the obligee a title " to certain land, the plaintiff cannot recover without showing a tender of a deed for the land to the obligor. But it is not necessary to show a de- mand on the obligors for the money. Gardner v. Kim/, 2 Ired., 297. 24. In an action for a breach of an agreement, which is in the nature of a guaranty, if the circumstance, which is alleged as the foundation of the defendant's liability, is more properly within the knowledge and privity of the plaintiff than of the defendant, then notice thereof should be averred in tire declaration and proved on the trial. But where it does not lie more properly (56 GUARANTY. within the knowledge of one of the parties than the other, notice is not requisite. Lewis v. Bradley, 2 Wed., 803. 25. A, on the 21st of August, 1841, transferred to B cer- tain promissory notes, which he guarante d. B matte no ap- plication to the maker of the notes for pi;, ment until the 29th July, 1842, and gave no notice to A that the notes were unpaid, and that he should hold him responsible on his guaranty, until the 29th of February, 1844; it teas held that B had been guilty of such laches as to discharge A from his guaranty. Seeker v. i i : ders, 6 [red, 380. 26. A covenant was executed by B and C, reciting that whereas A had lent to P $1,600, and D was desirous ofsecuring the same, they, B and C, bound themselves to A, that if D did not pay the debt before a certain time, they would pay it at that time, and waive notice. This was held not to be a mere guaranty, but an absolute promise to pay the money, if D did not pay it at the time stipulated, and that no notice was necessary. Williams v. Springs, 7 Ired., 384. 27. In an action upon guaranty in the following words, "This is to certify that I pass over the following notes to S. A. for value received, and I agree to make them good, should any of them not be so ;" and it was held that this was a guaranty, not only that the notes were good at the time they were passed, but that they would be good when payment should be required in a rea- sonable time. Ashford v. Robinson, 8 Ired., 14. 28. Notwithstanding gross negligence in a holder, a guaranty will be continued or revived by a new promise, made with a full knowledge of the facts. Ibid. 29. The contract of guaranty is not like that of endorsement, in the strictness of the conditions to be observed, or in the con- sequence of their non-observance. A guarantor is not discharged simply by the negligence of the other party, but he must also show a loss by it; if a particular loss, he is exonerated pro tanto; if no loss, he remains liable for the whole debt. Ibid. 30. On the guaranty of a note, the guarantee is not bound to show that he has made a demand on the maker, but the guaran- tor is only discharged when it appears that he has suffered loss in consequence of the guarantee not using due diligence. Far- row v. Bespess, 11 Ired., 170. 31. Where one agreed to guarantee to the owner of a slave $100, if lie should runaway upon having handcuffs removed, which being done, and the slave having run away, it was held that the owner could not recover, unless he had first given no- tice to the guarantor of the escape of the slave. Weatherly v. Miller, 2 Jones, 166. 32. A guaranty given at the time of a contract between two or or more persons, is binding upon the guarantor, because it is foun- ded upon the consideration expressed betweeu the principal par- GUAKANTY.— GUARDIAN AND WARD— 1 G67 ties ; but if it be made afterwards, without any new consideration, it; is not obligatory; and the putting it in writing (not under seal) will not help it. Such new consideration, ii there lie one, need ! expressed in the writing, but may be proved by parol. v. Thornton, -4 Jones, 230. 33. I -,i ven to a guarantor, that he is looked to for the debt guaranteed, must be positive and unconditional. Spen- ar v. Carter, 4 -Tones, 287. 34. Where it is certain that early notice to a guarantor, of the failure to pay by the person whose debt he has guaranteed, could not have been of any benefit t > him, the v early notice will not impair the guarantor's obligation. iring Company v. Brower, i Jones, 429. 35. Where a contract binds a party collaterally, to answer for the default of another, as in the case of guaranties and the like, notice must be given of such default before an action can be maintained for a breach of the contract. Cox v. Brown, G Jones, 100. 36. It is a rule of law that a person, who is liable in the event that another does not pay, is entitled to notice of the default of the primary debtor, before suit can be brought against him, and it is no exception to the rule that the primary debtor was insolvent at the date of the original transaction, or became so afterwards. Reynolds v. Edney, 8 Jones, 40(5. See (Evidence — Parol evidence, when admissible 39.) GUARDIAN AND WARD. I. Of the appointment of guardians. II. Of the powers and duties of guardians. III. Of the liability of guardians and their sureties. IV. Of the liabilities of justices for taking insufficient security on the appointment of guardians. I. OF THE AIT0IXT2IENT OF GUARDIANS. 1. Guardianship in socage has not been recognized in this State. Under the act of 17(52, (Rev. Code, ch. 54, sec. 2,) the court may exercise a discretionary power in the appointment of a guardian, having alwavs a due regard to the interest of the ward. Mills v McAWster, 1 Hay., 303, (350.) 2. The county court, in appointing a guardian, need not regard the choice of the minor, but ought to appoint the person, who, in their discretion, will best perforin the duty. Wynne v. Always, 6G8 GUARDIAN AND WARD— I.-II. 1 Murph., 38. S. C, 2 Hay., 336, (512,) and Conf. Rep., 554, (574.) S. P. Grant v. Whitaker, 1 Murph., 231. 3. The choosing by an orphan of a guardian, in court, does not necessarily destroy the authority of a former guardian ; but the court can, at any time, remove a guardian upon proper cause shown, and in the appointment of a successor has entire dis- cretion. Bray v. Brumsey, 1 Murph., 227. 4. No one lias a right to the guardianship of an infant, except he be appointed by the father by will or deed, or by the county or superior court. An appointment by the court is a matter of sound discretion, and when made, will not be rescinded by an- other court, unless it is perceived that injury is likely to result from it to the person or estate of the infant. Long v. Rhymes, 2 Murph,, 122. 5. Where a guardian to an infant, appointed by a county court in tin's state, removes to another stale, taking with him a part of the property of the infant, the court, which made the appoint- ment, has the right to remove him without notice, and appoint another in his place Cooke v. Beak, II Ired., 36 (I. .V record stating that "A was appointed guardian to B, upon entering into bond with C and D as sureties," is an abso- lute and not a conditional appointment of A as guardian to B, although no person but A executes the bond. Davis v. Lanier, 2 Jones, 307. II. OP THE POWERS AND DUTIES OF GUARDIANS. 1. A guardian appointed by a court of chancery may, by ord< ir of the court, rightfully sell the personal property of hie ward: and the act of 17(12 confers the same powers on the county courts of this state. Harrison v. Richardson. -.1 I >ev., 279. (See Rev. Code, ch 54.) 2. A. guardian cannot purchase his ward's property of himself. because the law requires that there should be two persons at least to make a contract. But if another person purchases at the guardian's sale fori the guardian's benefit, but takes a convey- ance to himself, and afterwards conveys to the guardian, the purchase will not be void at law. And even in equity such sales are not, ipso .jure, void; but the trustee purchases, subject to the equity of having the sale set aside, if the cestui que trust, in a reasonable time, chooses to say that he is not satisfied with it. Hoskins v. Wilson, 4 Dev. and Bat., 243. 3. The county court, in proceeding under the act of 1781), au- thoi-izing an order to issue to a guardian empowering- him to sell the property of his ward, for payment of the debts of the ward, must first ascertain that there are debts due by the ward, which render the sale of the property expedient; and the court must also select the part or parts of his property, which can be GUARDIAN AND WARD.— II.-III. 069 disposed of with least injury to the ward. Therefore, an order of the county court, in the following, words', "ordered that A. W. (the guardian) have leave' to sell as much of the lands be- longing to the orphans of Stephen Mullen, deceased, as will sat- isfy the debts against the said deceased's estate." is unauthorized by law and void ; and a purchaser, under a sale made by the guardian in pursuance of such order, acquires no title. Leary v. Fletcher, 1 Ired.. 259. (See Rev. Code. eh. 54, see. 34.) 4. Where a guardian of an infant sells his ward's lands, un- der an order of tin- county court, tor the payment of the debts of the ancestor, he is bound to observe the same priority in the payment of such debts, as an executor in applying the personal assets. Marchdnt v. Sanderlin, 3 Ired., 501. 5. A guardian ran only hire out the slave of his ward until the latter comes of age; and, upon coming of age, lie has the right to take the slave out of the possession of the person who has hired him from the guardian for a longer period. Melton v. _l/r A' ( sson, 13 Ired.. 475. See (Heirs, ;U-;HJ-4tM4-42-44-45-4C;.) (Idiots and Luna- tics, 7.) III. OF THE LIABILITY OF GUARDIANS ASTJ THEIR SURETIES. 1. A guardian bond, made payable to "the justices of Caswell county court," will not support a suit in the name of the "jus- tices of Caswell county court," as they are not, as such, a corpo- ration. The Justices of Caswell County Court v. Buchanan, 2 Murph., 40. -1. flie act of 17(i2 directed guardian bonds to be made pay- able " to the justice or justices present in court, and granting such guardianship, the survivors or survivor of them, their exec- utors oi administrators, in trust," &c. Ibid. (The bonds are now to be made payable to the "state of North Carolina." See Rev. Code, eh. 54, sec. 5.) 3. Under the act of 1795, it is .the duty of an infant, upon coming to full age, not only "to call on his guardian for a full settlement," but tu have a final adjustment of all accounts, mat- ters and things, within three years, and either sue for any bal- ance which may be due him, or to notify the sureties to the guardian bond of the situation, in which he stands to his guar- dian: and without such a course on the part of the infant, the sureties will be discharged. Jolmson v. Taylor, 1 Hawks., 271. 4. The county court has the same power as a court of equity to rectify mistakes in the settlement of a guardian's account. WeM v. KittreU, 1 Hawks., 493. 5. Where a guardian married the executrix of a will, in which was a bequest of a vested interest in slaves to his wards, which .slaves were in the possession of the executrix, it was held that,. G70 GUARDIAN AND WARD.— III. having removed from the state with the slaves, lie held them as guardian, and not as executor in right of his wife. Clancy v. Dickey, 2 Hawks., 497. 6. No county attorney's fee is to he taxed on a sci. fa. issued to a guardian under the act of 1820. Randolph C'oun>>/ Court v. Johnson, 3 Hawks., 238. 7. Under the art of 1816, bonds payable to a guardian do not bear compound interest after the ward arrives at lull age. Wood v. Brownrigg, 3 Dev., 430. (Sec. Rev. Code, ch. Til, sec. 23.) 8. When the foot that a guardian was appointed is admitted, a presumption arises that a guardian bond was given, sin requisite to the appointment. Kcllo v. Mage?, 1 Dev. and Bat, 41-1. 9. Where the sureties of a guardian obtain, under the art of 1762, an order for counter security, and at that time the guar- dian owes his ward, and never afterwards returns an aoco nor makes a payment, no presumption of satisfaction at that, or any , irises from his beingjthen able to pay tht suin d; and the sureties on the first bond are liable for it. althoug] r for counter security expressly releases them. ell, 1 Dev. and Bat., 475. (See Rev. Code, ch. 54, sec. 3">. ) 10. The condition contained in a guardian bond, that the guardian shall improve the esl ite of his wards "until they shall arrive at full age, or be sooner thereto required, and lh-:n render a true and faithful account of his said guardianship, &c, and de- liver up, pay to and possess" his said wards of their estate, is not broken by a guardian who is removed from his office, until an account and settlem ini be d< manded of him, and he refuse to comply with such requisition, or there be such conduct on his part, tantamount to a refusal, as to render a requisite eary or impracticable. Barretv. I roe, 4 Dev. and Bat., 194. 11. Where, in a suit on a guardian bond, it appeared that tin neeount betwei a the guardian and his ward ! ■tiled, ' nd that tii' ! ave his own individual bond to the ward, which was receive.! by the latter in satisfaction of the balance due, and he then gave his guardian a receipt; d that this was a sufficient defence to the action. State v. G Ired., 179. 12. The viio defence, which might be made to an action at jaw or suit in equity, brought in the name of the ward himself against his g lardian, is good in an action brought on the guar- 13. In construing a bond, all useless and unmeaning words ate to be rejected, provided enough remains to make the bond sensible. Thus, where a bond, purporting to be. a guardian bond, was made to J. J., governor, &c, justices of the court of pleas and quarter sessions, &C, in the sum of, &c, to be paid to GUARDIAN AND WARD.— III. G71 the said justices or the survivor of them;" the words "justices of the court" &c., "to he paid to the said justices," &c, are to be rejected as unmeaning, and the bond is payable to J. J. Iredell v. Barhr. 9 I red.. 250. 14. Where a court has no power to appoint a guardian but does appoint him, and he gives bond 'with sureties and takes possession o1 the estate of the ward, it is not competent for any of the obligors in such bend to object to its validity, on the ground of want of power in the court to make the appointment. Ibid. 15. An inf entitled to a sum of money arising the sale of a tract of land, sold under the decree of a court of equity, and th ■ b: i ig I received by her guard! conveyed it in contemplation other marriage to a trusl trust to her e,and if she died, without leaving achild, teu i! ' a married and died und and without a child; and it was held that in a court of law, at least, her personal • ntative was entitled to re over the money so rei ler guardian. State v. S t 9 lred., 358. 1(5. In charging a guardian, the mode of compounding is to make annual i m : ing the aggregate of the princip; land interest due at the end of a particular year a capital sum, bear- per cent, i <■■■ rest, thence forward for another, and so on. i ists from year to 3 ear. But if a sum be found due at the last rest day during the uardian [tip, that sum bein into capital is entitled to draw interest thereafter, until it shall be p that is but simple interest, there being ■. Ford v. > I [red., 227. 17. .'■ at liberty to consider the amount ex- 1 on infants i r guardian, even for board, if it ex- ceed their income, as a d d's estate, an able out of the principal. State v. Cook, \2 [red., 67. 18. A guardian is presumed to furnish all necessaries I infant nger who furnishes them, except under pec care to contract with the n i the provision tl I ball not, in if their ward-, would be vain . 19. th his ward after his arrival at full 1 ith surety for the sum found due. name of the surety from the bond, and for this i v ure the bond, in a trial again the dian. was held to be void. The ward then sued on bond, to recover the amount for which the fir.- ond had Been taken, and also on accounl oi a mistake in the settlement; and it \ bat, whether he could recover for the mistake or G72 GUARDIAN- AND WARD— HABEAS CORPUS. not, he certainly could not recover ■ on the other ground. Ltd- fordv-. Vandyke, Busb.,480. 2l): Where a guardian hired out the slave of his ward at pub- lic vendue, proclaiming as conditions of the hiring, that the slave was not to be carried beyond the limits-of the county, nor work in a stave swamp, it ivas held that the guardian who had him- self hired the slave through an agent,- was bound, by the restric- tions thus proclaimed,. and that 'as the slave had been carried by him out of the county, and put to work in a stave swamp where he was accidentally killed while working at the business, the guardian was liable, at the election of the ward, on his official bond for the loss; and that a receipt by the ward, forthe stipula- ted hire, was no bar to his claim for the loss of the slave. Hur- rell v. Lee, 6 Jones, 280. 21. A guardian, who calls in a physician to the slave of his ward, is liable for the bill, although the physician may bow at the time that the slave is the property of the ward Fessi nden v. Jones, 7 Jones, 14. See (Bailment, 17.) (Practice — Of the tiial and its incidents, 10. ) (Release 6.) IV. OT THE LIABILITY OF JUSTICES FOR TAKINC! INSUFFICIENT SECURITY ON THE APFOINTMENT OF GUARDIANS. 1. If, upon the appointment of a guardian, the justices on the bench take a bond from the guardian without any security thereto, they will be liable for any damage resulting therefrom, and one of the justices may be sued alone for such default. Da- vis v. Lanier, 2 Jones, 307. (See Rev. Code, ch. 54, sec. 2.) 2. The- measure of damages, in such a case T is the amount of the principal and compound interest thereon up to the time of the ward's arrival at full age, but nothing can be allowed as damages fur the interest accruing after that time. Ibid. END OF VOLUME I. ERRATA TO Vol. I. " 93, " 119. line 11 from bottom, for Hides read Hawk}. ■' 121, line 3 from top, for liberality read liability. •' 182, line 5 from top, for was such read was not such. " 133, line 11 from bottom, for implanted read inipeaclud 147. line 10 from bottom, for Iter., read Hay. •■ ITS. line 3 from top, insert " 2" after " Crnmpler." ■' ISO, line 15 from top, for "10 Ired." read " 11 Ired." " 180, line 14 from bottom, for " Jones' rend " 1 Jones." " 189. line 5 from top, for McDowell v. f'askill read McDonald 1 ->/' " 210 top line, insert failed after/o?v/W fuhu ss " 214, changethe places of the 16th bud 17th linen from bottom. " 221, line 5 from top, fir an appeal read a /talamenf. " 226, line 19 from bottom, for the second sustained read arrested. " 249, line 16 from bottom, for " 137' read 173. •' 252, line 7 from top, for enrolments read emoluments. " 262, line 20 from bottom, strike out the work bank. - 277. line 15 from bottom, for account read a count ■ 319, line 25 from bottom, insert a after devastavit. 1 354, line 9 from bottom, for Tnrrell read Harrell. " 363, line 3 from top, for"5 Ired." read " 4 Ired." " 373. line 10 from bottom, for Murpb., read 3 Murph. 3vj. ii,„. is from bottom, for "(479)" read "(463.)" 384, I i 16 from top. for "4 fin/.." read "1 Hoi/." 84, i i. 2 t. bottom, for "16(262)" read "T6(24Z>" 392, Linell from top, strike out not. - 397, line 9 from top, for oread on. ■ 398, line 12 from top, for come read common. 402, lino 12 from bottom, for "Jones" read " 1 Jones ' " 4(17, line 14 from bottom, read adjusted for ad,„d,,,.l " 423, line 1". Horn bottom, for Hayu-uodri-.nl Kayicood. " 424. line IS fn>m bottom, for Woodd re "i Waddell ■ .. '■ el! pom '"p. for • 5 Jones' read 'i ■'■ - 4.-:-. ' :■ tr. m: bottom, for ■•:) ]<. »." read --J n,c" " 453, line 13 from bottom, for •' Ired.." read "10 Ired." " 467, line 16 from bottom, for contracts read contents - 468 line 15 from top, for JTaytoood read Kaywood " 471 line 20 from top. strike out the third the. 4Sn, line 5 from bottom, for as read acts. •' 496, line 21 from bottom, for • 3 Ired." lead " 2 Ired " " 496. line I8frombottom for Hicks read Vic!.: " 498, line 7 from bottom for "Bust. 297," read "/>'».::,:,, 1 i 1 1 . ■ 9 iron, bottom, fur si rue read prior to. " 653, line 5 from bottom, for "(41S)" read "(478.)" ' 654, line S from bottom, for "396" read ' 496 " ■' 657, line 24 from top, for draught read drought. 1 1 from bottom, for Linther read Souther. •' 601, line 22 from bottom, for "328 ' read ••533.'