7. An account of the state treasurer, examined, approved, and settled by the comptroller general, and examined and entered by the register general, and approved of by the Supreme Executive Council, and warrant drawn for the balance, cannot be opened and questioned, after one year has elapsed from the time of settlement, under the act of assembly of 18th February 1785. Respublica v. Rittenhouse's executors. LOCATION. (See Lands.) Page 543 M MAYHEM. 1. Indictment on the first clause of the 9th section of the act of 22d April 1794, against maiming, leaving out the words "lying in wait," or, on the second clause, leaving out the word "voluntary," is defective. Respublica v. Reiker. 282 MONEY. 1. In a suit for lawful money of North Carolina, the court will not permit paper money to be brought into court, unless it be a legal tender. Shelby v. Boyd et al. MORTGAGE. 1. B. mortgages land to K., and the same not being recorded in six months sells the same land to A. and receives a bond in part payment, and then assigns over the bond informally to H. A. does not record his deed in six months, and K's mortgage is first recorded, which was the first notice either to A. or H. of the mortgage. Adjudged, that the mortgage cannot be set up as a defence against the equitable assignee of the bond; aliter, as to the obligee. Burke v. Allen. 2. Barom and feme have issue, and mortgage the lands of the feme, without acknowledging the same; the lands of the feme are bound only during the life of the husband. James v. Lyon. 821 351 471 N NEGROES. 1. Indebitatus assumpsit on a quantum meruit, will lie by a free negro, for work, &c., against a person who held him in his service, claiming him as a slave. Negro Peter v. Steel. 2. Owner of a slavo entering his negro in the county where he lives, without expressing the county, the registry is valid. Cook v. Neaff. 3. Registering a negro, as a slave, without adding for life, is good. Respublica v. Findlay. 250 259 261 4. Quare, whether parol evidence may be received, of a mistake made by the clerk of the peace of the county, in registering the name of a negro slave, the original return of the supposed owner being lost? Campbell v. Wallace. 572 NEW TRIAL. (See Trial.) NOTICE. 1. A deed recorded without a proper probate, is no evidence of notice to subsequent purchasers. Simons' lessee v. Brown. NUISANCE. 189 1. Indictment, for a nuisance in obstructing an ancient water course, whereby a public highway was overflowed and spoiled, need not state how far in length or breadth the water stood on the road. Respublica v. Arnold. 417 2. Such indictment, laying the nuisance to be in the commonwealth's highway, or road leading from, &c. is good. 8. Nuisance in obstructing the waters of D. creek, by which plaintiff's lands were overflowed; the nuisance was by erecting a dam in the waters of J., variance held fatal. Funk v. Arnold. ib. 428 P Page PARTNER. 1. Where a partnership is sworn to by the clerk of one of the partners, the books may be given in evidence to discredit or fortify his testimony. Moyes v. Brumaux. 2. A dormant partner engaged in a limited concern, and not in the general partnership of the house, for whose use a note was discounted, and afterwards protested, discharged on common bail, and the testimony of one of the partners, a bankrupt, was reeceived by the court to establish the fact. Bank of Pennsylvania v. Hadfeg et al. HARTNER. 1. In partition, on the plea of non tenant insimul, the defendant may show in evidence an agreed line by the former owners, though his deed poll grants him an undivided interest. Bates v. M'Crory. PAYMENT. 1. Defendant, on the plea of payment to a bond, must specify the particulars of the defence, as to want of consideration, fraud, &c., if required by the plaintiff, or he shall be precluded from giving the same in evidence. Greenwalt v. Born et al. 2. A legatee in right of his wife, transfers the legacy, and takes a bond therefor; he previously purchases goods of the executors of the testator, and they insist on retaining the amount against his assignee of the legacy. This may be given in evidence on the plea of payment, against the equitable assignee of the bond. Baughman v. Divier. 3. A defendant pays money to one of the attornies in the cause, (who is not the attorney on record, and who afterwards absconds,) after notice to the contrary; the payment is in his own wrong. Weist v. Lee. PERJURY. 30 560 192 47 1. In an indictment for perjury in answering interrogatories, on a rule to show POWERS, EXECUTION OF. ib. 1. Devise of lands to three sons in fee, but if either of them die without chil- PRACTICE. 1. Defendant, on the plea of payment to a bond, must specify the particulars of the defence, as to want of consideration, fraud, &c., if required by the plaintiff, or he shall be precluded from giving the same in evidence. Greenwalt v. Born et al. 2. Discontinuances are the act of the court, and subject toftheir discretion. They will not be allowed after a cause has been referred, and the evidence heard by the referees. Pollock v. Hall. 3. In covenant, on the plea of covenants performed, the defendant must begin the evidence, and conclude to the jury. Norris et al. v. Insurance company of North America. 6 24 84 4. It is the practice of the court to give a preference to suits on forfeited recognizances. Respublica v. Cobbett. 5. The certificate of counsel, on an appeal from the Circuit Court, resting on facts not apparent on the record to the Supreme Court, must be made during the sitting of the Circuit Court. Cay's ex'rs. v. Gibson. 122 Page 6. Scire facias on a recognizance on a writ of error, may issue before the term in which the record is remitted to the Supreme Court, on the affirmance of the judgment in the Court of Errors and Appeals. Daintry v. Johnston. 148 7. The court have a control over their rules; and where a view has been had, though founded on the certificate of counsel, where it is improper and unnecessary, , it will be discharged with costs. Nesbitt's lessee v. Kerr. 194 8. Service of a summons, by leaving a copy with defendants' partner, with whom he has lived, before he went aboard on a trading concern, from whence he is daily expected to return, and has his children now living with him, is good. Bujac v. Morgan. 9. On an appeal from the Circuit Court to the Supreme Court, counsel must subscribe a certificate, and file the proceedings of the Circuit Court with the prothonotary, before the first day of the next term. Gallagher v. Hamilton's administrators. 10. No one shall suffer by the mistake of the clerk; therefore bail was relieved, where the principal offered to surrender himself in due time, but was prevented by the scire facias being entered of of a prior term. Hamilton et al. v. Taylor. 11. Where it is objected that witnesses have been summoned unnecessarily, to swell a bill of costs, court will interfere only in cases of manifest oppression. De Benneville v. De Benneville. 12. Where a defendant removes a cause after it has been at issue two terms, the exception must be taken when the writ is put in, or by motion for procedendo before trial. Wolff v. Turner. PRIVILEGE. 1. Privilege of a suitor does not hold, where he has been surrendered by his bail in another cause, and is in actual custody at the time of arrest. Davis et al. v. Cummins. PROMISSORY NOTE. 258 321 389 . 558 559 - 387 1. An alteration of the date of a promissory note by payee, whereby the time of payment is retarded, and afterwards discounted with innocent persons by the payee on indorsing it, avoids the note. Bank of the United States v. Russell et al. PURCHASER. - 391 1. A deed recorded without a proper probate, is no evidence of notice to subsequent purchasers. Simons' lessee v. Brown. - 186 2. Evidence of the debt on which a sheriff's sale of lands was founded being paid previons to the sale, shall not be received to affect the title of a stranger who has purchased: aliter, if the plaintiff in the execution is the purchaser. Samms's lessee v. Alexander. - 268 8. A purchaser for valuable consideration, without notice of a trust, is not subject to it. Clarke's lessee v. Hackethorn. - 269 R RECOGNIZANCE, SURETY, &c. 1. Recognizance of the good behavior may be taken by the Chief Justice, or any Judge of the Supreme Court; and such a recognizance towards the commonwealth, and all the liege people, is good. Respublica v. Cobbett. 2. A libel is a cause of forfeiture of such recognizance, and the guilt of the party may be determined on a suit on the seire facias, without a previous conviction. : 3. And what is evidence of such forfeiture, and publication of libel. See Respublica v. Davis. REFEREES. (See Arbitration.) RENT. 1. A grants lands to B. subject to a yearly rent charge, with right of entry into the premises, to hold until the rent is paid ;and B. covenants to pay the yearly rent to A, his heirs and assigns. B. grants the lands to C. subject to the first rent, and to a new created rent payable to himself, and conveys the last rent to W., who afterwards becomes entitled to part of the first rent under his father's and mother's wills; no part of the first rent is extinguished thereby. Philips v. Bonsall. REPLEVIN. 1. Where a replevin is brought for goods distrained for rent, and the cause is referred, and the referees find a sum due for rent beyond the time of distress, the report will be set aside. Shaw v. Atkinson et al. 2. Replevin will not lie for goods seized for non-payment of the city water tax. Stiles v. Griffith. ROAD. (See Ferry.) Page 124 48 82 S SET-OFF. (See Defalcation.) SHERIFF, SHERIFF'S DEEDS. (See Escape.) 1. Court on the trial of lands sold by sheriff, will not examine whether the jury who condemned them acted erroneously, or whether the same were sold at an undervalue; but it is essential, that the sheriff's deed should be acknowledged in open court, after the return day of the writ. Murphy's lessee v. M'Cleary et al. 2. A sale by a sheriff on a levari facias, on a second mortgage, free of all incumbrances, confirmed under the special circumstances of the case Keen v. Swaine et al. 3. Quære, whether a sale under a subsequent mortgage or judgment, can effect the security of prior mortgages or judgments. SHIP, MASTER AND OWNERS OF. 405 561 ib 1. A ship's agent in a foreign port, a witness to prove the shippers of the goods. Andre et al. v. Care. .101 ib. 2. Where French property has been covered in an American bottom, without the knowledge of the captain or his owner, but with the assent of the ship's agent, the party is entitled to the net proceeds of the property. Master of a ship borrowing reasonable sums abroad, at common interest, for repairs, &c., in cases of clear and manifest necessity, may thereby make his owners liable, without any hypothecation. Wainwright v. Crawford. 131 4. The liens of tradesmen, who have built, repaired, or fitted vessels, continue under the act of 27th March 1784, until such vessels proceed to sea, though the owner thereof becomes a bankrupt. Shoemaker v. Norris. 392 5. Though the captain may discharge a mate for misconduct in a foreign port, yet the grounds for doing it must be very strong. Golloway v. Morris et al 445 6. A mariner loses his wages on a capture from the last port of delivery, and during half of the time of his continuance there. 1. In slander, it is sufficient if the substantial slanderous words are laid and proved. Hersh v. Ringwalt. 506 2. If one assert a slander generally, without adding who told it to him, it is actionable; and even then it must be such a report as will induce a reasonable belief. • ib. 3. If no special damage is laid, proof of particular damages will not be received. ib. SUPRREME COURT. (See Court.) SURETY AND PRINCIPAL. 1. A creditor neglecting to sue his principal debtor, on the application of a surety, does not thereby discharge the surety. Dehuff v. Turbett's executors. 157 SURETY OE THE PEACE, &c. (See Recognizance.) SURVEY. (See Lands.) Page T TAXES. (See Lien, Replevin.) 1. Want of proof that the names of the commissioners of the connty had been returned to the sessions, will not invalidate a sale for non-payment of taxes; but there must be due proof of assessment and advertisement. Blair's lessee v. Caldwell. 2. The valuation by the assessors under the law of 11th April 1799, is binding on the county commissioners, and they cannot revise or alter it. Respublica v. Deaves. TENDER MONEY IN COURT. 284 455 1. In a suit for lawful money of North Carolina, the court will not permit paper money to be brought into court, unless it be a legal tender. Shelby v. Boyd et al. TRESPASS, ACTION OF. 1. Generally in trespass the plaintiff may recover mesne profits for such time as defendant may have been in possession; but in the case of joint tenants, or tenants in common, recovering in ejectment, they are restricted to a reasonable time after judgment. Hare v. Fury. TRIAL NEW TRIAL. 321 13 1. It is the practice of the court to give a preference in trial to suits on forfeited recognizances. Respublica v. Cobbett. 2. A second new trial awarded, after trial by special jury and view, without costs; improper evidence, which was afterwards overruled by the court, having been disclosed to the jury on the view. Stewart's lessee v. Richardson. 93 318 3. The court will not grant a new trial, unless they are satisfied injustice has been done. Jordan et al. v. Meredith. 4. A talesman sworn on the jury, after being struck off the list of special jurors, is no ground for awarding a new trial. 5. New trial granted, where in a suit on a note by indorsee against indorsers, the court submitted to the jury, the intentions of the plaintiff, in discharging the drawer out of custody on a ca. sa, issued against him M'Faden v. Parker et al. TURNPIKE. ib. 496 1. The turnpike company, under the act of 9th April 1792, are not bound to make compensation for the soil, gravel, or stone in the track of the road; nor to put up new fences where the road runs across the field, and the fence is thrown down. Aliter, where it goes lengthwise along the road, or for damages done to real improvements on the tract M' Clenachan v. Curwin. 362 W WARRANT. (See Lands.) WARRANTY. 1. If one sells an unsound horse, knowingly, and conceals that circumstance, and receives a sound price, he is answerable for the deceit; aliter, if he was ignorant that the horse was unsound. But if one sells with warranty, he is answerable whether he knew the horse to be unsound or not Kimmel v. Lichty. WASTE. 1. Tenant in dower may clear woodland assigned to her in dower, provided she does not exceed a just proportion of the whole tract. Hastings v. Crunckleton et al. 2. What would be deemed waste in England, could not receive that appellation here. 262 261 ib. |