Digest of all the reported cases, both in law and equity: determined in the courts of North Carolina from the earliest period to the present year, together with a table of the names of the cases

              1
LIBRARY
UNIVERSITY OF NORTH CAROLINA
K ^-f- Shelf /'' . Alcove
C "^^v-S".^ - \i'6D ^.x
H C V
UNIVERSITY OF N.C AT CHAPEL HILL
00033977224
Thisbookmust not be
taken from the Library
building.
Digitized by tine Internet Arciiive
in 2010 witii funding from
Ensuring Democracy tiirougii Digital Access (NC-LSTA)
http://www.archive.org/details/digestofallrepor18662batt
A DIGEST
OF AT.T/ THE KEPORTED CASES,
BOTH IN LAW AND EQUITY,
DETERMINED IN THE
COURTS OF NORTH CAROLINA,
FROM THE
EARLIEST PERIOD TO THE PRESENT YEAR,
TOGETHER WITH
A TABT.K «>K THM NAMi:S t)!" TH K CASKS.
PREPARED BY
A Judge of the Supreme Court.
IN THKKE VOLUMES.
THE FIRST AND SECOND VOLUMES CONTAINING THE LAW, AND THI5
THIRD VOLUME THE EQUITY CASES.
VOLUM K 11.
RALEIGH
:
NICHOLS, GORMAN & NEATHERY, BOOK AND JOB PRINTERS.
1866.
DIGEST
VOLUME 11. *
HABEAS CORPUS.
i; In air cases- of habeas corpvs he'iore any judge or court,
where the contest is in respect to the custody of minor children,
either party may appeal, by virtue of the act ot 1858, ch. 53.
Musgrove v. Kornegayy 7 Jones, 71.
2- Where a child, over twelve years old, has been illegally de-tained
as an apprentice, under a deed executed by the father
alone,- the proper order, upon a habeas corpus, is that the infant
be discharged to go where he pleases; but where an infant,
illegally detained, is under the age of twelve, the proper order is
that he'^be restored to his father. Ibid.
3. The courts and judges- of this state have concurrent juris-diction
'with the courts and- judges of the Confederate States, in
the issuing of writs of habeas corpus, and inquiring into the
causes -of the detention, where such detention is by an officer or
agent of the -Confederate States. In the matter of Bryan, 1
Winston, 1.
4. The supreme court has jurisdiction to issue writs of habeas
corpus returnable before itself, and to consider and determine on
the causes of detention. Ibid.
5. Where the object of a writ of habeas corpus is to inquire,
whether there be probable cause of commitment, the decision on
it is not the subject of review by writ of error or certiorari. But
where the question on the writ of habeas corpus is concerning the
power of the committing magistrate or court, or of the legality
of the commitment, the weight of auti;ority is in favor of the
doctrine that the decision is subject of review. Walton \. Gat-lin,
1 WinSt.,. 3 18:
6. The decision on a writ oi habeas corpus, the object of which
is to free a person from restraint, for any other cause than the
commission of a criminal offence, is a judgment, and the subject
of review by writ of error or certiorari. Ibid.
7. The supreme court has the power to review the action ot
1*
G74 HABEAS CORPUS.—HEIRS.
the superior courts, aud of tlie judges in vacation, upon ques-tions
of law in all cases under the naheas eovpiis act, Rev. Code,
ch. 55, sec. 10. Ihkl.
8. A soldier actually and rightfully in the army can have no
relief by the writ of habeas corpus^ against any alleged abuse of
military authority. Cox v. Gee, 2 Winst., 131.
9. If he be lurongfnlly held as ;a soldier, he is not entitled to a
writ of liaheas corpus, while he i-s undergoing punishment, or
awaiting a trial, i§)X a military offence. Ihid.
See (Contempt, 3.)
HEIRS.
1. Where there is judgment and execution against an ances-tor
ill his life time, no sci. fa. is necessary against the heirs or
devisees, but the execution attaches upon the land, and goes
with it to whomsoever it may come. Baiter v. Long, 1 Hay., 1, (2.)
2. Since the statute of 5 'Geo. 2, ch. 7, (Rev. Code, ch. 45, sec. 2,)
the same distinction exists between real and personal property
as before, and lands descended to an heir are not affected by a
judgment against the executor as such; they must be proceeded
ao-ainst by sci. fa. against the heir, if plene administravit be
found for the executor. Balair v. Wehh, 1 Hay., 43, (55.)
3. The heirs are liable in an action of debt, upon the bond of
their ancestor wherein they are named:; altliough there rnay be
personal effects in the hands of the executors. Long v. Balier,
•2 Hay., 128, (21)1.)
4. To an action against an heir on the simple contract of his
ancestor, he may plead that the executor has assets. LQais v.
Shqxtrd, 2 Hay., 218, (390.)
. 5. H" an heir pay debts of his ancestor, lands descended of that
amount shall be deemed to have been purchased by the heir, and
shall not be liable to other debts. Gibson v. WUliams, 2 Hay.,
2S1, (45(1.)
(). As to the other part of the land, it shall be charged, not
;acc<.>fding to its value at the time of the descent to the heir, but
ifs value at the time he sold it. Ihid.
7. On the surplus beyond the amount paid tor the ancestor,
the heir shall not be lial)le for interest. Ibid.
8 Whe)-e an heir had sold lands descended befor a sci. fa. had
issued to (charge them, the purchaser niay, in the name of the
hen-, he permitted to plead to the sci. fa. that the executor has
assets. Hamilton v. Jones, 2 Hay., 291, (474.)
9. If an heir plead to a sci. fa., nothing by descent or devise, and
HEms. 675
it be founcl against liim, judgment shall be d'. bonis piryirlis.
Hamilton v. Sitiuns, 2 Hay., 291, (-475.)
10. Before an heir can be made liable as sncli, it must be shown,
that to the lands descended his ancestor had a good title. Ham-ilton
V. Simms, 2 Hay., 32(5, (49(3.)
11. A judgment of execution against the real estate of a de-ceased
debtor was reversed, because it Avas not found that the
executrix had fully administered, and had no assets, or not suffi-cient
to satisfy the creditor's demand. CardioeU v. Brodie, 1
:\Iurph., 97.
12. A judgment against the administrator creates no lien on
lands descended or devised, and lands bona fide sold by the heir
or devisee, before a sci. fa. sued out against him, are not liable
for the debts of the deceased. JVillianis v. Aslxtiv, 2 ^vlurph., 2^.
(The law in relation to the land ot a deceased debtor is greatly
altered. See Rev. Code, ch. 4(i, sec. 46 and following.)
13. An action of debt will not lie against lieirr, upon a bond
in which they are not expressly named. Taijlor v. Grace. 2
Murph., (36.
14. If lands descended, or devised, have been bona Jide sold
Ijefore a sci. fa. issues, to satisfy a debt of the ancestor, under a
prior lien, they of course are not liable under the sci. fa. If
sold to satisfy the heir's or devisee's own debt, the heir or devisee
is personally liable, as if he himself had sold them, l)ut the land
is not liable". Spaight v. JFade, 2 Miirph., 295. 8. C. 1 Car. L. R.
284. (29.;
15. If the lands have been fraudulently sold before sci. fo.,
and are not, in point of fact, in the hands of the heir or devisee,
the lands are still liable to the demands of creditors. Ibid.
16. When execution issues in such cases, the plaintiff pro-ceeds
at his peril ; he can sell all lands descended or devised,
uidess they have legally passed into other hands. Ibid.
17. A sale of land under aji. fa., which issued and bore te^te
after the death of the debtor dying seized, without any sci. fa.
against his heirs or devisees, conveva no title to the purchaser
Bowenw McCuUock^. C. Term, R'.', 261, (684.)
18. Under the act of 1784, the heirs may plead to a .9c/. fa. to
subject to sale the lands descended, that the executor had not
fully administered, or that he had suffered judgment to be re-covered
by fraud, &c., but the " plea that the lands descended
had been sold to satisfy prior judgments " is totally immaterial
;
and, although the jury may find it true, the plaintiff is entitled
to judgment of execution against the lands descended, as if no
plea had been pleaded. Ti-emhle v. Jones, 3 Murph., 579.
19. The^ proviso in the last section of the act of 1789 does
not prevent an execution from issuing under that act, and the
act of 1784, where one of several heirs is a minor, but only di-rects
that it shall not be levied on the property of the infant de-
!576 HEIRS..
fendant.. Therefore,. where judgment was-obtained against sev-eral
co-heirs, one of whom was an infant, iY was held that the
creditor might sue out his execution and obtain satisfaction from
tlie hands of the adults.. Bank of Ncicbern v. Stanley., 2 Dev.,
47().
20. An execution against the land of an infant, under the acts
of 1784 and 17*59, ought to appear upon its face to have issued
upon motion after a stay of twelve months, otherwise the sherift'
may or may not act upon it, and he will or will not be justified
bv the fact ; but he may levy instanter upon the property of the
adults. Ibid.
21. xVlthough satisfaction of a decree in equity, against an ex-ecutor
who has fully administered, can now be had out of the
lands of the testator, oidy upon a bill against the heirs, yet a sale
under an order made upon a sci. fa. is valid. White v. Albertsori,
H Dev., 241.
22. Where the heirs have land descended from both parents,
a creditor cannot sell that descended from the mother, under a
judgment against that descended from the father, although the
mother held as devisee of the father. Trotter v. jSelby, '6 Dev.,
374.
23. A judgment on a sei. fa. against an heir, when his name
is neither set forth in the writ, nor in the return of the sheriff,
is a nullity,. and a purchaser under it acquires no title.. Bonner
V. Tier, 3 Dev., 533.
24. Where a judgment was obtained against an infant heir, by
sei. fa. under the act of 1789, with a stay of execution for one
year, during which time another creditor commenced suit, and
obtained judgment against the heir, on the bond of his ancestor,
and issued a,Ji. fa. before the expiration of the stay, it was held
that a purchaser under it had a better title than one under a
f. fa., afterwards issue d upon the first judgment. Bichs v. Blovnt,
'4 Dev., 128.
25. The /rov/.9r),, to the last section of the act of 1789, applied
probably only where the guardian had sold property to pay the
debt; but, at all events, it extended only to judgments upon a
sci. fa., not to those in debt upon the bond of the ancestor.
Ibid.
26. Nothing but a writ in debt, or a sci fa., is "an action
brought or process sued," within tke act of 1789, to restrain
alienatio]! by an heir. And process against an heir created a
lien upon the real estate, only as to him, and j)iii"chasers under
him—not as to otlier creditors. Ibid. (The remedy against the
real estate of deceased persons in favor of creditors is greatly
altered. See Rev. Code, ch. 4(5,. sec. 44, and following.)
27. Land cannot be sold under a fi. fa., Avhich issues and bears
teste after the death of the debtor,, without bringing in the heirs
hy S'^i. fa.; although the/, fa. may be an alias, the original of
HEIRS. 677
^which issued- and 'bore teste in the life time- of the debtor. Wood
v. Harrison, 1 Dev. and Bat., 35'6.
28. A writ from a court, commanding the sheriff to summon A
^^and B, heirs of C deceased, to be and appear, &c., " then and there
to show cause, if any, why D shall not have judgment agamst
the lands of said deceased," in the hands of his said heu's, for $150,
besides interest and' cost," is not such a sci. /a. ^as is rcquu-ed by
the act of 1784, subjecting the real estate of a deceased person
to the payment of liis debts, though a debt may have been pre-viously
established against the administrator, the plea of fully
administered found in his favour, judgment signed,' and an award
of .sfi fa. against the heirs. Barroio v. Arrenton, 1 Ired., 228.
29. 'Such a Avrit does not set forth nor refer to a judgment i)re-viously
rendered in any action for any person, and of course_ does
not call on the heirs to show cause A^"hy execution on that judg-ment
shall not issue against the lands descended to them. And,
where upon the return of such a writ, judgment by default was
entered upon the record, and an award of execution against the
lands in the hands of the heirs, held that the judgment was a nul-lity,
and that a purchaser at the sheriffs sale, under an execu-tion
issuing upon it, acquired no title. Il/itL
30. Although a sci. fa. against heirs and ferreienants need not
name them, but leave "it to the shcriflf to summon and return
them, yet the judgment is always against particular persons.
and the writ of execution muftt name the same. persons. Bobert-mn
V. WooUard, 6 Ired., 90.
31. An execution commanding the sheriff to sell the lands _oi
A. B. "in the hands of his heirs"" wuthout naming them, is void,
and a sale under it confers no title. Ibid.
32. A sale of land, under a fi. fa. bearing fc^^/e alter the death
of the defendant in the execiition, where his heirs have not been
made parties, is void. Staie v. Pool, 6 Ired., 288.
33. Where a judgment is against heirs for lands descended,
after a plea of fully administered has been found in favor of the
administrator, and the execution issues against the goods aiid
chattels, lands and tenements of the heirs, the execution is void.
Walker v. Marslmll, 7 Ired., 1.
34. Under the statute du-ecting that, upon judgments against
infant heirs, the execution shall be stayed twelve months, the
guardian of the infants has a discretion to waive the stay, an^^
permit the execution to issue instanier, and the sheriff is bound
to proceed under the execution. Heath v. Latham, 7 ired., 10.
35. Where the plea of fully administered is found in favor of
the administrator, and upon a sci. fa. against the heirs, they come
in and plead that the administrator has assets, it icas held that,
upon the trial of the issue upon that plea, the hen-s may give ev-edeuce
of any assets received by the administrator, either before
678 HEIRS..
/<
or after tlie trial of tlie original suit, and up to the time of tlie
plea pleaded to the sci. fa. Carrier v. Hampton, 11 Ired., 307.
oG. The county court, on the petition of a guardian of a cer-tain
infant, passed the following order: "Ordered that he, the
said W. B., guardian, sell the land of the said deceased T. H., or
so much thereof as will be sulficient to discharge the debts," it
was held that this order was unauthorized and void, and of course
that a purchaser under it acquired no title. Bucket v. Shnner,
11 Ired., 431. .
37. Til ough in the case of a.
J?..fa. for the sale of the lands of a de-ceased
debtor, the heirs should be named, yet this is not neces-sary
when the writ is a ve7id. expo., the land having been ascer-tained
bv the levy and return of a constable. JSjiiith v. Bryan,
12 [red., 11.
38. The question who are the heirs of a deceased person is one
of law to be decided by the conrt, and not of fact to be left to
the jury. Bradford v. JEnui7i,A2 Ired., 291.
39. Jn a proceeding by sci. fa. against heirs to subject the real
assets of a deceased debtor, any one of the heirs can tender
a collateral issue to the administrator, and, if it found against
the administrator, the creditor would have execution against
him for the sum thus found in his hands, which would necessarily
operate to the exoneration pro to??toof allthe real estate descended.
Carrier v. Hampton, 13 Ired., 436.
40. A sale of land by a guardian, under an order of the coun-ty
court, which was made without the court ascertaining that
there were debts of the ward making the sale necessary,
and wliich did not designate with certainty the land intended to
])e sold, is void, and the purchaser acquires no title. Spridll v.
Davenport, 3 Jones, 42.
41. An order of the county court, authorizing a guardian to
sell the land of his ward, under the act of 1789, Eev. Stat., ch.
63, sec. 11, must find and adjudge that there are debts against
the ward, which render a sale necessary; but the amoimt of the
debts, to whom due, or other particular description, is not essen-tial
to the validity of the order. Pendleton v. Trnehlood, 3 Jones,
96. (See Kev. Code, ch. 54, sec. 34.)
42. An order " to sell the land of the ward named in the pe-tition,
adjoining the lands of J. B. and others, containing about
one hundred and ten acres," is a sufficient specification of the
land under the act, when it appeared that the ward had no other
land. Hrid.
43. AVhat constitutes an heir at law is strictly a question of
law; but the facts, on which the question ari-ses, must be left to
the jury. Hence, it is proper to leave it to them to say, from the
Testimony, whether a particular person died without children,
before the act of 1784, and whether anotb-ier was. his. eldest
jaephew. ErnuM v. Whitford,. 3 Jones^ 474..
HEIRS.- 679-
44. The land of an infant can be sold by an order of the county
court only for the debt of his ancestor, and not for his own debr.
and, to inake the sale valid under an order to sell for the debt of
his ancestor, there must be an adjudication of the court that
there was a debt of the ancestor against the estate of the peti-tioner's
ward. Cqfjidd v. McLean, 4 Jones, 15.
45. Where a petition to sell lands, by a guardian, alleged that
there was a debt of the ancestor of his ward, for which he was
liable as heir, and the land was described by calling for coter-minous
tracts, and the court adjudged, upon the testimony of a
competent witness, that the facts of the petition were true, and
made an order to sell the land, it was- held that the sale was good.
Bryan v. Manning, G Jones, 3o4.
46. Where the' guardian of one of two joint owners- of land
petitioned for the sale of the whole of it, without noticing the
existence of the other tenant in common,, it was hdd that the
sale was good as to one-half the land, and the purchaser, though
taking a deed for the whole, acquired title to only one-half, as
tenant in common with the atlier owner. Ibid.
47. When an ancestor dies intestate, his heirs take by posi-tive
law, and the course of descents cannot be altered by words
in a deed excluding particular heirs, or by any agreement of par-ties.
Cannon v. Noivell, 6 Jones, 43G.
48. There is no presumption of law, that a person, bearing the
same name with one of the sons of a deceased owner of land, is
the heir, or one of the heirs, of such deceased owner; but the
question of identitj'^ is one of fact, to be detei-mined by the jury
upon the concomitant circumstances, such asths identity ofname,
residence of the claimant, and that of other members of the
family, the price paid for the land compared with its value, and
the facility with which the ixlentity might be proved, if it ex-isted,
and other circumstances. Freonanr. Loftis, 6 Jones, 524.
49. The purchaser of land, sold under an order of court for
the payment of debts of the deceased, on the petition of the ad-ministrator,
who was also the sheriff of the county, and, as such,
served the notices on the heirs at law, loas held not to be affected
by such irregularity, nor by the fact that the petition had not
been sworn to, he not being a party to the proceeding. Overton
V. Crawford, 7 Jones, 415.
See (Execution—Of void and irregular executions, and pro-ceedings
to set them aside, 13.) (Executors and Administra-tors—
Of their liability to creditors, &c., 32.) (rludgment—Of
judgments against executors, administrators and heirs, 1.)
(Judgment—Of irregular, void and erroneous judgment, 11.)
(Justices of the Peace—Of their jurisdiction, judgment and exe-cution,
71-72.) (Limitations—As to real estate, 16.) (Plead-ing
—
Oi scire faciaa, and the pleadings thereon, 3-7.)
•680 HIGHWAY,
HIGHWAY.
1. By the act of 1784, the interposition of a jury is necessary
in the laying out, altering or changing of roads ; but in deciding in
the first instance whether there shall be a highway in a particu-lar
section of the county,- or in discontinuing one which is use-less,
the jury have nothing to do, the whole power l>eing given
to the court. Carr v. Hairstoji, ICar. LawRepos., 249, (20.)"^ (See
Rev. Code, ch. 101, sees. 1, 2.)
2. The county courts of two adjoining counties having been
authorized, by act of assembly, to appoint commissioners to lay
out a road, and one J. H. having been authorized to erect toll
g-ates on it and to take tolls, the report of the commissioners, as
to the discharge of their duty, was set aside, because the person,
across whose land the road was laid out, had not had notice of
their proceeding. Saicyer v. Hamilton, 1 Murph., 253.
3. The overseer of a public road is subject to indictment, if he
neglect to keep up sign boards, as directed by the act of 1784.
State V. jsicholsoj}, 2 Murph., 135. fSecRev. Code, ch. 34, sec.
,39, and ch. 101, sec. 18.)
4. An overseer, of a public road must be served with notice of
his appointment ten davs. before he is liable to be indicted. IState
V. 'Everitt, 2 Car. L. R., V)33, (4301)
5. By act of the legislature, commissioners may be appointed
to inspect a turnpike road, and it may be dircted that, upon their
report, an indictment may be instituted against the stockholders;
and (m the trial of the indictment, the evidence of the commis-sioners
is admissible and sufficient, if the jury believe them, to
convict the proprietors. State v. Hmvorth, 1 Hawks, 346.
6. Where water was, bythe erectioii of a mill, thrown upon a
highway, and the' former owner of the mill had built bridges
over the water, which, during his ownership, he repaired, and
which were also repaired by the present owner, who did no
other work on roads, it tvas held that the present owner was liable
in damages to a person who was injured by a defect in one of the
bridges, and that the enquiry Avas properly left to the jury,
whether the mill or tiie road were the more ancient. Miilhol-lamd
V. Broivnrig, 2 Hawks, 349.
7. Where the proprietors of a puljlic bridge, in order to draAv
travellers from a public ferry, open a private road, by the per-mission
of the owners of the soil above the ferry, leading to the
foot of the bridge, and erect a small bridge on such private road
over an intervening creek, they are not indictable for any defect
in the small bridge. State v. Seaivell, 3 Hawks., 193.
8. Where a party appeals from the decision of the county
..court laying off a \road :over 'his 'lands, and the superior court
HIGHWAY. 681
orders it to be laid off according 'to his wish, he shall not pay
the costs of the petition. Harris v. Coltraine, 'd HaAvks., 312.
9. The twenty days previous notice of tlie filing of a petition
for a public road cannot be objected, by a person who has come
forward and opposed the petitiorj, continued the cause and ap-pealed
to tlie superior court; because his conduct shows that he
had ample notice. Little v. 3Iay, 3 Hawks., 599.
10. A railroad company is a private corporation, its effects
and emoluments being private property, but the road construc-ted
by them will be a pul^lic highway. Davis v. Raleigh and
Gaston Railroad Company, 2 Dev. and Bat., 451.
11. In taking private property for the use of the public, as for
a public highway, the legislature is not restricted to a mere
easement in the property, but may take the entire interest of the
individual, if, in the opinion of the legislature, the public exi-gency
requires it. Ihid. ^
12. If a road be established as a highway by an eiToneoTis
judgment of the county court, it will be a nuisance to obstruct
it, until the judgment is reversed. It is enough that the way
obstructed is a public road de facto, to constitute the obstruction
of it a public nuisance. But where the proceedings to change a
road state no road as having been prepared; nor describe where
the altered road is to run, except that it is to be brought nearer
a particular house; and the prayer is only that an order may be
made " for turning the road," and then an entry appears that
" said report Avas confirmed and duly entered of record," there
is no sufficient judgment for establishing the road as altered,
and it is no nuisance to obstruct it. State v. Spainlwui\ 2 Dev.
and Bat., 547.
13. In a petition to turn a road under the act of 1834, it must
appear that the road proposed to be changed, as well as that of-fered
to be substituted, is wholly upon the land of the peti-tioner;
the freeholders must also be sworn, and the overseer
have notice. Ibid. (See Eev. 'Code, ch. 101, sec. 6.)
14. The common law mode of creating and establishing a
public highwav is not repeale by any of our acts of assembly.
Woolard v. McGullough, 1 Ired., 432.
15.. The ii&tir of a road as a public highway for twenty years,
Avill, under the circumstances of a case, authorize a jury to pre-sume
a dedication of the road, by the proprietors of the soil, to
the use of the public. Ihid.
16. Where a road is opened by an order of the county court,
according to law in every respect, except that no damages were
assessed by the jury to the owners of the land, none but those
owners can impeach the order for that cause. Ihid.
17. An overseer of a public road can require no hands to work
on his road, unless they live within a district whieh has been
682 HIGHWAY.
designated for him by the county coiu't,. or unless they have
been specially assigned by the court to work on his road. Ihid.
IS. When a road has been laid off by order of a county court,
and the jury have returned a report which has been confirmed
and an appeal taken to the superior court, it is too late to take ex-ceptions
to the jury. The objection should have been made in
the county court upon the return of the jury, by a motion to
quash the proceedings of the jury. After a decision of the
county court upon the merits, the superior could, upon an ap-peal,
determine oidy upon the merits. Fiercy v. Morris, 2 Jrecl,
168.
19. In a petition to turn or change a public road, it must be
alleged that the new road is necessary, or would be more usefvd
to the public ; otherwise the petition will be dismissed. Leath
V. Summers, 3 Ired., 108.
20. The mere appointment of an overseer and assignment of
hinds to a supposed roacl, by the county court, are not ^jer se a
judicial determination that a public road be laid out where none
before existed. And any inhaWtant so a,ssigned, when sued for
the penalty incurred for refusing to work on such road, and the
overseer iu dieted for not haviiig the road in order, may show
that in fact there is no such public road. Baker v. Wilson, 3
Ired., 168.
21. Where an individual appropriates land for a public high-way,
much less time than twenty years will suffice to make it
a public road; for it is rather the intention oi the owner, than
the length of time of the user, which must determine the fact of
dedication. But a county court cannot dedicate or appoint a
public road, in any other manner than that authorized by law.
Stafe V. Marble, 4 Ired., 318.
22. Where a road has been used by the public as a highway
for twenty years, and there is no evidence how this user com-menced,
a presumption of law arises that this road has been laid
off and established as a public road, by due course of laAv; but a
possession or 2iser for less time than twenty years will not raise
this presumption. Ibid.
23. There may be a public road de facto, and the only person,
who can question the right to such a road, is the owner of the
land; and the owner can only be bound by a proceeding against
him according to the law of the land, or by an user for twenty
years, from which such proceedings will ordinarily be pre-sumed.
Ibid.
24. So, also, no presumption of a legal authority to erect a gate
across a public road can arise, in a less time than twenty years,
from the actual erection of the gate. Ibid.
25. Where a road has been used by the public for twenty
years' without obstruction or hindrance,, a grant from, the own»
HIGHWAY. 683
ers of the land over which the road passes may be presumed.
State V. Hunter, 5 Ired., 3G9.
20. The county court has no authority to discontinue any pub-he
road, but upon the petition of one or more persons, filed in
the court, and the other necessary proceedings prescribed in the
act; and any order for discontinuing a pubhc road,, made other-wise
than as the act directs, is Toid. State v. SJaiford, 6 Ired.,
162. (See Eev. Code, ch. 101, sec. 2.)
27. The county court has full power to order the laying- out of
public roads, but none to lay them out, as that power is given to
a jury. Welch v. Piercy, 7 Ired., 365.
28. The county court has the power to decide whether the
public convenience requires the layiug out of aroad, and to or-der
a jury for the purpose of laying it out; but it. has no power,
except as to the termini to direct the jury, or any one else, ]Mv
it shall run, that being the exclusive province ol the jury, their
verdict being, of course, subject to the judgment of the court,
whether it shall be received or not. Ibid.
29. An order of the court directing how a road shall be run and
opened, does not justify an overseer who acts under it, and he
is liable to an action by the jjarty aggrieved. Ibid.
30. Where a person resides in another state during the great-er
part of tlie year, but has a domicil in this state, in which he
also resides three or four months of the year, during which he
keeps slaves here, he is liable, during the time he resides in tliis
state, to be required to send such hands to w-ork on the public
road, as are required by the act of assembly on that subject. But
persons merely passing through the state, or visiting it for pur-poses
of profit or pleasure, and remaining for days, weeks, or
even months, without having any fixed home here, are not per-sons
whom the overseers of the roads are authorized to summon
as being witiiin their districts. Cantrell v. Pinhiey, 8 Ired., 436.
(See Eev. Code, ch. 101, sec. 9.)
31. An overseer of a public road has no right at his discretion
to widen the road» as this can only be done by a jury ruider the
direction of the county court. Small v. Eason 11 Ired-, 94.
32. In an action to recover a penalty for not working on a
road in Wilkes county, laid off by commissioners under the act
of 1846, ch. 100, it is necessary to show that the commissioners
were duly sworn as the act directs. Calvert v. Whittington, 11
Ired,, 278.
33. If the w^eather be so bad as to prevent an overseer of a
road from working on it, or to render unavailing any work he
might do, he ought to be excused. State v. Smcdl, 11 Ired., 571.
34. Where a charter has been granted for a turnpike road, and
the road has been opened, the county court has no right to con-vert
it into a public road, unless the charter has been duly sur-rendered,
or, from a non-user, foe twenty years,, a dedication to
68^4 HIGHWAY.
tlie public may be presumed. And, even in such a case, the roafi
can only be made a public one in the manner prescribed by.
statute. The mere appointment of an overseer will not be suffi-cient
for that purpose. State v. Johnson, 11 Ired., 647.
35. It setms ihsii t\\Q establishment of a highway may be in-ferred
b}^ the jury from the use of it as such for twenty years,
although the time and manner of the wseris shown to have been
under imperfect and irregular legal proceedings. State v. Card-iveU,
Busb., 245.
36. By an appeal from the judgment of the county court upon
a petition to lay out a public road, the superior court acquires
full possession of the cause, with power to proceed to a final
judgment and hearing. Therefore, when the county court dis-missed
such a petition, and the petitioners appealed, it 2cas held
tlmt the judge of the superior court, being of opinion that the
prayer of the petition ought to be granted, properly ordered a
jury to lay out the road, instead of awarding a procedendo to the
county court. Shqffner v. Fogleman, Busb., 280.
37. Highways are laid out for public convenience, and, there-fore,
should not be altered, unless the interest of the public re-quire
it. Kenedy v. Erwin, Busb., 387.
38. The power to exempt hands from working on the public
roads is restricted to a court consisting of seven justices. Forhes
V. Hunter, 1 Jones, 231.
39. An overseer of a public road is liable, in an action on the
case, for special damages -sustained by a person, on account of
the road's being out of repair. Hathawmj v. Hinton, 1 Jones, 243.
40. The establishment of a road district, or the assignment of
hands to work on a public road, can ordy be made by an order
of the county court, and no acquiescence in the authority of an
overseer, by working under him upon a road, can amount to a
presumption that the district was laid off, or that the person thus
acquiescing had granted the power to another of compelling him
to work on the road. Tarldnrjton v. McRae, 2 Jones, 47.
41. It is irregular, upon the hearing of exceptions to the report
of a jury ordered to lay off a public road, for the court to con-sider
of the propriety of such order. Anders v. Anders, 4 Jones,
242.
42. Where it was shown that a road had been opened in con-sequence
of an award of a church, upon a controversy between
two of its members, for which the person who wanted the road
was to pay the owner of the land a price in money, and that such
person had used the road, as of right, for more than twenty
years, it •ivas held that jyrima/acie it was but a private way, and
that a long and general use of it by the public, in the absence of
any proceeding in court to have it laid out, and overseers ap-pointed
over it, was not sufficient to change it into a public roaci
Davis V. Ramsey, 5 Jones, .236.
HIGHWAY.—homicide: . 685"
4S. A roadonly one mile long, and from ten to fifteen feet
^vide, leading from a highway \o a church, and having been
used by. tlie neighborhood.for sixty years, in going to and from
the church, and which connects with a country road leading to
a mill and a railroad station, but which had never been under
the charge of an overseer, nor worked as a public highway, is
not a public high\vay,-so as to subject. a person to an indictment
for ob.structing'it. State v. 3IcJ)anieI, 8 Jones, 284-
44. The Eev. Code, ch. 101, sec. 15, gives to overseers of roads
power to cut poles, &c., on any land adjoining his section of the
road, for the purpose of making causeways, &c., and if he act
in good faith, he is not confined to the land immediately adja-cent
to the spot w^here the causeway, &c., is to be made. Col-lins
r. Creecy, 8 Jones. 333.
45. The inference, from evidence tending to show that a M'ay
over and through a man's land is a public road, may be rebutted
by evidence of "/lor. user for more than twenty years. Burgwyn
v. Lockhart, 1 Winst., 269.
See (Common Schools, 3.) (Costs—In civd proceedings, when-the
plaintiff pays costs, 12.) (Evidence—Records of courts; the
proof and effect of them, 24.) (Indictment—In what cases an
nidictment will lie, 15-57-B7-73-83.) (Indictment—Form and
matters relating thereto, 117.; (Penal Statutes, 8-9.)
HOMICIDE.
1. A person, who was violently beaten and abused, made-his
escape, ran to his house eighty yards off", got a knife,. ran
back, and upon meeting the deceased stabbed him, it seems he
was only guilty of manslaughter. If, upon the second meeting,
the prisoner had disguised the fact of having a weapon, for the
purpose of inducing the deceased to come within his reach, the'
killing would have been murder. The distinction between mur-der
and manslaughter elaborately explained. State y. Norris,
1 Hay., 429, (495^
2. If a free servant refuse to obey the commands of his mas-ter,
and the master endeavor to exact obedience by force, and
the servant offer to resist by force, and the master kill, it is
neither murder nor manslaughter; a Ar^ior, the law is so in
the case of a slave. State v. Weaver, 2 Hay., 54, (216.)
3. If a prisoner be convicted of manslaughter, and the court
think he is a dangerous man, it may order him to give secu-rity
for his good behaviour for five years. State v. Parish, 2.
Hay., 73, (240. X
686 HOMTCIDE.
4. If a slave violoTitly shove a white man so 'that lie falls, or
is iu damger of falling, and he rises and immediately shoots the
slave, the killing is manslaughter. State v. Piner, 2 Hay., 79,
(247.)
5. The statute of 21st James 1st, ch. 27, being repealed in this
state, the concealment 'of the birth of a base begotten child could
not be given in evidence, as a strong presumption of the murder
of the child by its mother. State v. Jeffreys, -3 Murph., 480.
6. One convicted of wilfully killing u slave, with malice pre-pense,
is guilty of murder, and not entitled to benefit of clergy.
State V. Scott, 1 Hawks, 24.
7. If, after mutual alter^cation and abuse, one of the parties
strike the other a violent blow, and they are separated fbr a
minute, and the stricken man suddenly stab the other with a
knife which he had not before shown, it will be a case of man-vslaughter
and not murder, provided death ensues. State v.
Yarborongh, 1 Hawks, 78.
8. Necessity distinguishes between manslaughter and excusa-ble
homicide, and not between manslaughter and murder. Ihid.
9. The whole design of the act of 1817, to punish the homi-cide
of a «lave, was to make it manslamjMer, and to punish it as
such ; it does not go further, and determine the degrees of the
liomicide, but leaves them to be determined by the common liiw.
State V. Tackett, 1 Hawks, 210.
10. At common law, and between white persons, a sligld blow
will not excuse a homicide ; nor will mere words extcmtate it to
manslaughter. A blow amounts to a legal provocation, though
it does not threaten death ; and if he, on whom an assault is made
with violence, or circumstances of indignity, resent it immediate-ly,
by killing the aggressor, and act therein in heat of blood,
and under that provocation, it is but manslaughter. 1 bid.
11. The general rule may be laid down, "that words are not,
but blows are, a sufficient provocation to lessen the crime of
homicide to manslaughter." From this, there are a few excep-tions
depending upon peculiar circumstances. Ihid.
12. But it exists in the very nature of slavery, that the rela-tion
between a white man and a slave is different from that be-tween
free persons; and therefore many acts will extenuate the
homicide of a slave, which would not constitute a legal provoca-tion
if done by a white person. Ibid.
13. A killing on a sudden quarrel, to avoid a great bodily
harm, is a homicide under circiimstances of legal provocation,
and though such circumstances cannot justify or excuse the act,
yet, on account of human frailty, it shall be deemed no more than
manslaught<ir. State v. Roberts, 1 Hawks, 349.
14. A well grounded belief, that a known felony is about to
be committed, will extenuate a homicide committed to prevent
HOMICIDE. G87
the felony, but not a homicide committed in pursuit, by an indi-vidual,
of his OT\-n accord. State v. Bntherford, 1 Hawks, 457.
15. If death do not take place within a year and a day of the .
time when a wound was inflicted, the law draws the conclusion
that 'it was not the cause of the death, and this cannot be con-tradicted.
State V. Orrell, 1 Dev., IcUrL
16. A homicide may be justified when it takes place to prevent
a threatened felony, but not when inflicted as a punishment for
one already committed. State v. Roane, 2 Dev., 58._
17. To justify the homicide of a felon in endeavoring to arrest
him, the slayer must show not only a felony actually committed,
but also, that he avowed his object, and that the felon refused
to submit, and that the killing was necessary to make the arrest.
Ihiil
18. Provoking language does not justify a blow, and if one be
struck with an instrunient calculated to produce death, the
slayer is guilty of murder. State v. MernlU 2 Dev., 269.
19. Malice is presumed from the nature of the instrument, and
from the want of legal provocation, and it is a matter of indiffer-ence
whether the temper of tlie prisoner be mild or violent, and
it is erroneous to permit evidence to be given, by the State, of
such temper. Ihid.
20. If an apprentice fly from the chastisement of his master,
who pursues him with unlawful violence, and, in the pursuit, is
killed, the apprentice is not guilty of murder. So of a person
guilty of a misdemeanor, flying from an officer. State v. Will,
1 Dev. and Bat, 121.
21. It is not the criterion of a legal provocation that the offen-sive
act is an indictable oflence. Ihid.
22. If one man assails another, and is about to commit an
unauthorized act of violence upon him, and a third person inter-poises
to prevent it, and is killed by the assailant, it is murder.
State V. Benton, 2 Dev. and Bat., 196.
23. Where one goes to the house of another in a peaceable
manner, Avithout offering or threatening violence to his person or
dwelling, and, upon being ordered off and not going immediately,
is killed by the owner of the premises, the slayer is guilty ©r
murder, although it be proved that he had previously forbidden
the deceased from coming on his premises. State v. Smith, 3
Dev. and Bat., 117.
24. It is ordinarily true, that an actual intent to kill is involved
in the idea of murder. But it is not always so. If great bodily
liarm be intended, and that can be gathered from the nature of
the means used, or oMier circumstances, and death ensue, tho
party will be guilty of murder, although he may not have inten-ded
death. State v. Hoover, 4 Dev. and Bat., 365.
25. When a man makes an assault, which is returned with a
violence manifestly disproportionate to that of the assault, the
688 HOMICIDE..
character of'tlie combat is essentially chaTiged, and the assault--
ed becomes in his turn the assailant; and if the person who
made the first assault, in the transport of passion thus excited,
and without previous malice, kill his ad'v'^rsary, the proper in-quiry
as to the degree of his guilt is not, whether he was pos-sessed
of deliberation or reflection, so as to be sensible of what
he was then about to do, and intentionally did the act, but
whether a sufficient time had elapsed after the violent assault
upon him, and before he gave the mortal wound, for passion to
subside, and reason to re-assume her sway* for if there had not,
he would be guilty of manslaughter only. State v. Hill^ADev.
and Bat, 491.
26. If a man assault another with malice prepense,- even
though he should be driven to the wall, -and kill his adversary
there to save his own life, he is guilty of murder. Ibid.
27. Where two persons have formerly fought on malice, and
are apparently reconciled, and fight again on a fresh quarrel,
it shall not be intended that they were mov^d by the old grudge,
unless it so appear from the circumstances of the aflair. J bid.
28. If one began an affray, or even if he did not begin, but
was assaulted first,. and then a combat ensued, he could not ex-cuse
himself as for killing in self defence, unless he quitted the
combat before the mortal blow was given, (if the fierceness of
his adversary permitted,) and retreated as far as he might with
safety, and had then killed his adversary of necessity to save
his own life. Ibid.
29.- Words of reproach, or contemptuous gestures, or the like
offences against decorum, are not a sufficient provocation to free
a party killing from the guilt of murder, where he uses a deadly
weapon, or manifests an intention to do great bodily harm.
This rule, however, does not obtain where, because of such in-sufficient
provocation, the parties become suddenly heated, ond
engage in mortal combat, fighting upon equal terms. Ibid.
30. Although there be a. legal provocation, yet a homicide
will be murder, if committed under such circumstances ot cruelty
as manifest the thoroughly wicked heart. And cruelty, when
the fact,^,SYom which it is to be inferred, all distictly appear, is an
inference of law, and, therefore, properly drawn by the court.
But where no more is stated than,- that several blows were struck
with a stick of curled hickory, of the ordinary size, and with the
larger end thereof, without stating more of the nature of those
blows than that one of them was mortal, the facts are not so set
forth as to leave the question as one for legal inference. State
V. Jarrott, 1 Ired., 76. #
31. If the weapon, with which the homicide was committed,
were not of the character called deadly, that is, likely to produce
death or great bodily harm, the homicide would not be murder,
although committed vdtbout legal provocation. And there are
HOMICIDE. e8&
many cases in "u-hicli the conrt can distinctly see,, ia-om the na-ture
of the instrnme^it nsed, whether it be of a dearlly character
or not ; and therefore need not that tlie jury should direct-ly
find the iactfor their information. But where it only appears
that the weapon used was a stick of curled hickory of the ordi-nary
size, and that the slayer struck with the larger end thereof,
it falls peculiarly in the province of the jury to ascertain wheth-er
such a weapon, so used by the slayer, was likely to produce
fatal consequences. Ibid.
32. When a deliberate purpose to kill or do great bodily harm
is ascertaired, and there is a consequent unlawful act of "killing,
the provocation, whatever it may be, Avhich immediately pre-cedes
the act, is to be thrown out of the case and goes for noth-ing,
unless it can be shown that this purpose was abandoned be-fore
the act was done. State v. Johnson, 1 Ired., 354.
33. There is no such thing in law as the killing with malice,
and also upon the furor brevls of passion ; and provocation fur-nishes
no extenuation unless it produces passion. IMalice ex-cludes
passion. Passion presupposes the abK<ence of malice. In
law they cannot co-exist. Hid.
34. ^Vhen the existence of deliberate malice in the slayer is
once ascertained, its continuance, down to the perpetration of
the meditated act, must be presumed, until there is evidence to
repel it. There must be some evidence to show that the wicked
purpose had been abandoned. Ihid.
35. Provocation never disproves malice ; it only removes the
jjrcsnrnpfion of malice, which the law raises without proof A
malicious killing is murder, howeve]- gross the provocation. Ibid.
3(x If A, from previous angTy feelings^ on meeting with B,
strike him with a whip, with a view of inducing B to draw a
pistol, or believing he will do so in resentment of the insult, and
determines, if he does so, to shoot him as soon as he draws, and B
does di-aw, and A immediately shoots and kills him, it is a case
of murder. State v. Martin. 2 Ired.,. 101.
37. It isi not error in the judge to tell the jury, on a trial for
murder, that "if they believed from the evidence, that the pris-oner
had malice against the deceased,, on the morning of the day
when the killing occurred, and there Avas no evidence that sucli
malice was abaiid(jned,. even if the prisoner accidentally fell in
Avith the deceased, the Ojuestion of manslaughter could not arise,
as the malice would excludeprovocation ;" it being clear, from the
context of the charge, that the malice spoken of was the purpose
to Mil,' or do great bodily harm to the deceased. State v. Tilly, 3
Ired., 424.
38. Although one persoii may not go in r^eareh of, or lie in
wait for, another whom he kills, yet if he have formed the pur-pose
to kill him, and,withiii a short time after forming and avow-ing
such jwirpose, he, duly armed, meets the other by chance
2*
690 HOMICIDE.
whether in public or in secret, and slays hii-^ immediately, there
is a presumption that he did it on the previous purpose and
grudge, if there be no evidence of a change of purpose. Ibid.
39. If one seek another and enter into a light with him, with
the purpose, under the pretense of lightiiig, to stab him, and
he do so and kill him, it will be clearly miu'der in the assailant,
no matter what provocation was apparently then given, or how
high the assailant's passion rose during tlie combat; for the mal-ice
is express. State v. Love, 4 Ired., 113.
40. In a case of homicide, where it appeared that the deceased
had threatened the prisoner about three Aveeks before, that he
would kill him; that they met in the street in a starlight night
when they could see each other; that the deceased pressed for a
fight, but the prisoner retreated a short distance; that wdien the
deceased overtook him, the prisoner stabbed himivith some sharp
instrument which caused his deatli, and that, at the time of
this meeting, the deceased had no deadly w^eapon, it ivas held \o
be a case of murder. State v. Scott, 4 Ired., 401).
41. In a case like the above, to mitigate the offence from murder,
it must appear, from the previous threats and the circumstaiK-cs
attending the rencountre, that tlie killing was in self-defence.
lUd.
42. Where the deceased intended only a fight without weapons,
and that was known to the prisoner, and tlie prisoner drew his knife
wuthout notice to the deceased, even if they actually engaged in
the fight, the stabbing of the deceased by the prisoner would be
unu'der. Ihid.
43. The belief, that a person designs to kill me, will not pre-vent
my killing him from being murder, unless he is making
some attempt to execute his design, (jr, at least, is in an appa-rent
situation to do so, and thereby induces me reasonal)ly to
think that he intends to do it immediately. Ibid.
44. On a trial for murder, the question of provocation is prnjjur
for the decision of the court; for whether certain facts amount
to a sufficient provocation to palliate a killing from nnirder t(!
manslaughter, is entirely a question of law. State v. (Jratoyi, H
Ired., 104.
4;"). When a man is vnJairfidhj restrained of his lil)erty, and
Jcills the aggressor, the offence is only manslaughter, vniless at-teiided
with circumstances of great cruelty and barbarity. \\n\
when the restraint is upon one man by another, so far as to pre-vent
the former from doing what the latter may lawfully resist
his doing; and the person restrained in that manner and for tliat
cause kills the other, it is murder. Thus, if a husband use com-pulsion,
as he may lawfully do, to regain the possession of his
wife from one who, he has reason to suspect, has committed, or
is about to commit, adultery with her, and the husband be killed
in the attempt by the wrongdoer, it will be murder. Ibid.
HOMICIDE, 691
41). Whether an iustruiuent, by which death is caused, if it bo
in fact as described by the testimony':, be one by which death
may or may not be probably caused, is ii question of general
reason, and therefore proper for the court; and it' it be doubtful,
whether it Avould probably cause death, the court should direct
a conviction lor manslaughter only. IbicL
47. Nothing-, short of a husband's finding a man in the very
act of adultery with his Avife, will extenuate the killing of the
adulterer from murder to manslaughter. Hence, it is not admis-sible,
because immaterial, to prove that the deceased had been
in the habit of committing adidtery with the wife of the pris-oner.
State V. JoJrit, S Ired,, odd
48. Voluntary drunkenness Avill u^ot excuse, or extenuate, a
homicide committed by a man, otherwise sane, while actino- un-der
its influence. Ibid
49. It is perfectly settled that no Avords or gestures, nor any
thing less than the indignity of a battery, or an assault at least,
Avill extenuate a killing to manslaughter; and, to constitute an
as.sault, there must he an attempt or offer to strike, by one Avithin
sti-iking distance. State y. Barfield, 8 Ired., 344.
')(
). The question, Avhether the Aveapon, Avith which a homicide
has been committed, is a deadly one or not, is Ibr the court, and
iiot for the jury. State v. Collin^,; 8 Ired., 407.
51. In an indictment for homicide, it is the province and duty
of the court to inform the jury, upon the supposition of the
truth of the facts, as being agreed on or found by the jury, Avhat
the degree of homicide is. ibtate v. Hildrttli, Ired., 4:2ii.'
b'l. Where persons hght on fair terms, and after an interval,
bloAvs having been given, a party draAvs, in the heat of blood, a
deadly instrument, and inflicts a mortal injury, it is manslaugh-ter
only ; but if a party enter a contest, dangerously armed, and
liglit under an unfair adA^antage, though mutual blows pass, it
is not manslaughter, but murder. Ihtd.
b'6. If one, Avho is present and sees that a felonious homicide
is about to he committed, in no manner interferes, he does
not thereljy participate in the felony committed. Every person
may, upon such an occasion, interfere to prevent, if he'can, the
perpetration of the felony, but he is not bound to do so at the
peril, otherAvise, of partaking of the guilt. It is necessary, in
order to make him an aider and abetter, that he should do or
say something, showing his consent to the felonious purpc.se.
and contributing to its execution. State v. Hildreth, 9 Ired., 440.'
54. Upon a quarrel, one of the parties retreated about flfty
yards, apparently with a desire of avoiding a conflict; the other
party pursued Avitli his arm uplifted, and Avhen he reached his
opponent, stabbed and killed him, the latter luiAnng stopped and
first struck Avith his flst. It was held that this was a clear
case of murder. State v. Hoiuell, D Ired 485.
692 HOMICIDE.
55. Whenever there is a reasonable ground to beheve that there
is a design to destroy life, to rob, &c,, a killing to arrest such
design is justifiable; but it is for the jury, and not for the pris-oner,
to judge of the reaso-nableness of such apprehension. State
V. Harris, 1 Jones 190.
56. Whore the wound is adequate and calculated to produce
death, it is no excuse to show that had proper caution and atten-tion
been given, a recovery might have ensued, Neglect or mal-treatment
will not excuse,, except in cases where doubt exists as
to the character of the wound. State v. Bal-er, 1 Jones 267.
57. If, after words of anger, the slayer took up an axe and ap-proached
the deceased with intent to kill him, or do him some
great bodily harm, and the deceased had sufficient reasons for
believing that such was his intention,, he had a right to strike in
i-'eli-defence, although the assailant was not sufficiently near to
strike him, and such striking by the deceased would not amount
to a legal provocation, to mitigate the killing to manslaughter.
Ibid.
58. Where one strikes another a violent blow, vnxh a heavy
pole pointed with iron, and a fight ensues in which the person
assailed uses a deadly weapon, with which be knocks down his
adversary and disables him, and follows up his blows with
great violence and cruelty until he kills him ; this, on account
of the greatness of the provocation offered by the deceased in
the first instance, is but manslaughter. State v. Curry, i Jones,
280.
59. The doctnne of killing upon provocation discussed, and
the distinctions pointed out lietween the circumstances when
such killing will be murder, and when it will be only man-slaughter.
Ibid.
60. A mere grudge, or malice in its general sense, is not suffi-cient
to bring a case within .the rule which refers the killing to
antecedent malice, rather than to an immediate provocation. In
order to have that effect, there must be a particular and, indefi-nite
intent to lAll, as if the weapon with which the party intends to
kill be shown, and the time and place are fixed on, and the party
goes to the place at .the time, for the purpose of meeting his ad-versary,
with the intent to kill him ; for in such case there is in
law a presumption of malice until it is rebutted by the accused.
But where tlie slayer bears malice against his adversary and they
meet by accident and a (quarrel ensues, during which the adver-sary
strikes the slayer with a grubbing hoe, whereupon he is shot
and killed with a pistol, the rule of refering the homicide to
the motive of a previous malice will not apply. State v. Jolm-
8on, 2 Jones, 247.
61. Where a killing, which would have been manslaughter by
reason of having been done on legal provocation, is nevertheless
insisted to be murder because of the unusual manner hi which
HOMICIDE. 693
tlie homicide -was committed, if there be several aspects, in
which the alleged unusual manner may be viewed as qualifying
the motive of the prisoner, some of which are favorable and
others not^ it is error in the court to submit to the jury only the
unfavorable views. State v. Gentrij, 2 Jones, 406.
62. Where the nnusual circumstance relied on,, as aggravating
the case from manslaughter to nnn-der, was that the prisoner
put his knife rypen in Ids pocket, and the court charged the jury
that if the prisoner put his knife open in his pocltet, and ad-vanced
to meet the prisoner witli a view to a rencounter, and
with the intent to use the knife, not in self-defence but with the
design to take the life of the deceased, and he did so use his
knife in killing deceased, it was murder ; it vms held that the
judge ought also to have charged them, that if the prisoner put
ins knife open in his pocket Avithout thinking of it, or with the
view to use it only in the event of its being necessary to do so
in selt^defence, then the killing was only manslaughter. Ibid.
63. If a husband slay a man in the very act of adultery with
his wife, it is only manslaughter; but if he slay him because the
deceased had before that time committed adultery with his wife,
or because he believed the deceased was going off Avitli her to
c mrait the act, it is murder. State v. Samml, 3 Jones, 74.
(j4. In a trial for murder, where the homicide is clearly estal >-
lished or admitted, everj^ matter of excuse, mitigation or justifi-cation,
must be shown by the prisoner, and he has no right to an
instruction from the court, that, unless the jury are satisfied be-yond
a reasonable doubt that the case is murder, they must hud
it to be manslaughter. State v. Johnson^ 3 Jones, 266.
65. If a man deliberately kill another to prevent a mere tres-pass
on his property, whether it could have been otherwise pre-vented
or not, he is guilty of murder. « Stace v. McDonald. 4
Jones, 19.
66. Though a person may engage in a fight Avillip g]y, yet, if
in its progress, he be "sorely pressed," that is, put to the Avail,
so that he must be killed or suffer great bodily harm, unless he
kill his adA^ersaiy, and under such circumstances he does kill,
it is excusable homicide. State y. IngoJd, 4 Jones, 216.
67. Where the prisoner and deceased Avere friendly, and being
together at a certain place, the prisoner mounted his horse for
the purpose of going home, A\dien the deceased seized the reins
and held them forcibly for from ten to forty-fiA^e minutes, in spite
of the efforts of the prisoner to get loose, whereupon the prisoner
dismouTited and stnick the deceased AAuth a jug full of molasses,
(Avhich he had casually in hands.) seA'cral bloAvs, Avhich proA^ed
fatal, it luas held that the killing Avas a case of manslaughter and
not murder. State v. Eamseij, 5 Jones, 195.
68. A person, A\dio has inflicted a mortal bloAv, cannot be con-victed
of a homicide, if the Avounded man were in fact subse-
694 HOMICIDE.
quently killed by another, having no understanding or connec-tion
with the first. State v. Scutes, 5 Jones, 420.
69. Where it appeared that two persons had formed the design
to wrongfully assail a third, and one of tlieni, in furtherance of
such design, with a deadly weapon aiid without provocation, did
assail and kill him, it was held that both were guilty of murder.
State V. Simmons, 6 Jones, 21.
70. Where it appeared that the prisoner had prepared a deadly
weapon witii an intention to use it, in case he got into a fight
with the deceased, and went to a particular place for the purpose
of meeting Avith him, and of having a conflict with him, it was
held to be murder, and not manslaughter. State v. Hogve, 6
Jones, 381.
71. If two men engage in a fight mutually and suddenly, and
one kills with a deadly weapon, it is but manslaugditer, and,
ordinarily, it is not material which makes the first assault. State
v. Floyd, 6 Jones, S92.
72. The fact that the prisoner was informed, or believed that
tlie deceased committed a rape upon his wife, or committed
adultery witli her, will not extenuate a homicide from murder t<")
manslaughter. He must find the deceased in the verj- act. and
kill him immediately, to have that effect. State v. Neville, G
Jones, 423.
73. On an ijidictment for murder, the question whether the
instrument, or weapon used, was a deadly one, is for the court.
The instrument may be deadly or not, according to the mode of
using it, or the subject on which it is used. And the effects pro-tluced
by the instrument! may aid in determining its chai^acter,
and in shoAving that the person who used it ought to have been
aware of the danger ot thus using it. Hence, it was held that
an oaken staff near three feet long, of the diameter of nearly two
inches, with wliich three blows were stricken upon the head of
a, man while drunk and helpless, shattering the bones of the
head and rupturing the interior vessels of the brain, was a deadly
weapon, and the killing by the use of it was murder. State v.
I't'e.d, 6 Jones, 505.
74. A blow need not endanger the life of the prisoner in order
to make it amount to a legal provocation. State v. Sizemore, 7
Jones, 206.
75. The time, intervening between the receiving of a legal
provocation and the striking of the mortal blow, is a question of
law, and it is error to submit it to the jvny. Ihid.
76. If a person deliberately kill another, to prevent a mere
trespass upon property, he is guilty of murder. State v. Brcmdon,
8 Jones, 4()3.
77. ^^''here a defendant in a State's warrant, which charged a
misdemeanor, put himself in armed ^^sistanoe to the officer hav-ing
the waiTant, and the officer, in the attempt to take the de-
HO^riCIDE.—HOTCHPOT. G95
fendant, slew liim, without resorting to unnecessary violence, it
icas held that he M-as justified. State v. Garrett, 1 AVinst, 144.
78. Tlie principle of self-defence does not apply to the case of
one, ^vho puts himself in the posture of armed defiance to the
process of the State. Ibid.
79. One who is not a regular officer, but to whom a State's
warrant is specially directed, is bound to shoAv it, and to read it
if required; but where the defendant in such warrant had notice
of the process, was fully aware of its contents, and had made up
his mincl before hand to resist its execution, it icas held that the
ofticer did not become a ti-espasser ab initio hx refusing to pro-duce
his \varrant on demand, so as to justify the defendant in
resisting its execution. I hid.
'SO. 1 f two men fight, on a sudden quarrel, with deadly weapons,
and one strike the other a mortal bloAv before the person so strick-en_
is prepared to use his weapon, the killing is murder; and so
it is if any unfair advantage be taken, and if one use a knife and
the other a stick or a pistol, they do not fight /a«7?/ and on equal
terms, and, therefore, the parly killing is guilty of "murder. State
V. ElUck. 2 Winst., bix
' *
81. Ifan indictment for murder charge that A killed the deceased,
and that others were present aidhigand abetting, and it is proved
that the deceased was killed by some one with whom A was act-ing
in concert, and that A was present aiding and assisting, the
ju-oof sustains the charge, and the jury should be instructed to
find A guilty of murder. State v. CochnaM, 2 Winst., 95.
f>2. If several armed men go to a dwelling house in the night
time^ for the puiix.)se of seizing the owner, without lawful "au-thority,
and one of them be killed by the owner to prevent the
;^xecution of their purpose, such killing is not murder. State v.
Jledlin, 2 Winst., 99.
See (Assault and Battery, 5-12.) (Indictment and matters
relating thereto, 1-8-13-14-15-27-32-43-53-54-6(3-89-110-1 11-
1 19-1 2()-138-139-157-163. ) (Indictment—=0f the trial, verdict
and judgment, 7-18-22-2()-29-30-31-50-51-54-74-80-81-84-
103-107.) (Indictment—Variance between the allegations and
proof, 6-12.) (Evidence—In criminal proceedings and indict-ments,
9-22-32-52-53-69-71-72-73-76-77-78-80-81-83-84-85-
87-88-90-95-97-98-101-104-109-110-111-116-117-122-124.)
HOTCHPOT.
1. Where a devisor purchased land after making his will, and
gave a jwrtion of them to one of his children in his life time, and
died without having disposed of the residue, if wa.s held that the
knd advanced to that child must be brought into hotchpot,
696 HOTCHPOT.—HUSBAND AND WIFE.—I.
in the division of the undisposed of land among the devisor's
children, and the land advanced must be valued at its worth at
the time of the gift, and the land to be divided according to its
value at the ancestor's death. Toonier v. Toovier, 2 Hay., 368.
(563,) and 375, (573,) S. C. 1 Murph., 93.
2. Where an intestate had, in his life time, conveyed one tract
of land to one of his daughters and her heirs, one to her husband
and his heirs, and another to the daughter and her husband and
their heirs, one of tlie deeds purporting to be for natural love
and affection, one for a small pecuniary consideration, and one
for natural love and five shillings, it was held that the land con-veyed
to the husband alone was not to be brought into hotchpot;
])ut that the land conveyed to the wife alone, and one-half of
that conveyed to the husband and wife were to be so brought.
Jones V. Spaight^ 2 JMurph., 89.
3. Lands advanced to a child in the life time of the parent are
not to be brought into account, in the settlement and distribu-tion
of the personal property of the parent, after his death. Jones
V. Jones, 2 i\lurph., 15d S. P. Wilson v. Hiqlnower, 3 Hawks,
76. (Altered, see licv. Code, cli. 38, sec. 1, Rule 2 and ch. 64,
sec. 2.)
4. Where a testator died, leaving one tract of land undisposed
of, and leaving a daughter to whom he had given no huid but a
full share of his personal estate, the other sons and daughters, if
they claim a share of the land so undisposed of, must bring into
hotchpot all the land settled upon them by the testator, either by
deed or devise. Norwood v. Branch, .2 Car. L. IL, 598, (400.)
See (Distribution, 2-10-20-21.)
HUSBAND AND WIFE.
I. Of marringe.
II. Husband's interest in his wife's
person.
III. Husband's interest in his wife's es-tate
during coverture, and af-ter
death, as survivor.
IV. Conveyance of real estate telius-band
and wife.
V. Conveyance by hus&and and wife.
VI. -Of marriage settlements and agree-ments.
VII. Of actions by, and against, husband
and wife.
VIII. How far the husband is bound by
the acts and admissions of his
wife, before and after marriage.
IX. Of the liability of a wife for her
own acts during coverture.
I. OF MARRIAGE.
1. Oral evidence of cohabitation is admissible as evidence of
jnarriage. Wiitehead v. Clmcli, 2 Hay., 3, (146.)
2. General reputation and cohabitation are evidence of mar-
HUSBAND AXD WIFE.—I. 697
riao-e in all cases, except in actions of crim. con. Weaver v. Cry-e?-,'
l Dev., 337.
3. Where a husband sues for an injury to his marital rights,
he nnist prove the solemnization of the marriage; but in those
cases in which ne unqnes accoupJe is not a proper plea, the marriage
mav l>e inferred from circumstances. Brhwjar v. Chaffin, 3
Dev., 108.
4. The marriage of shives in this state consists only of cohab-itation
by the consent of the ownei's, and does not constitute the
relation of husband and wife, so as to attach to them the privi-leges
and disabilities incident to that relation by the common
law. State Y. Samuel, 2 Dev, and Bat., 177.
5. ]Marriage is in law complete, when parties able to contract
and Avilling to contract have actually contracted to be man and
wife, in the forms and with the solemnities rec[uired by law. Con-summation
by carnal knowledge is not necessary to its validity.
S'ate V. Patterson, 2 Ired., 34<).
G. Where a marriage is solemnized in another state, in the
manner prescribed by the laws of this state, the court must in-tend
such a marriage to be good, unless the contrary be shown.
Ibiu'.^
7. The act, prohibiting marriages between white persons and
persons of color, includes in the latter class all who are descend-ed
h'om negro ancestors to the fourth generation inclusive, though
one ancestor of each generation may have been a white person.
State V. Waiters, 3 Ired., 455. (The Rev. Code, ch. G8, sec. 7,
says " free negro or free person of color to the tliird generation.")
8. Where a marriage is celebrated between persons, one of
Avhom lias no capacity to contract marriage at all, as where there
is want of age or understanding, or a prior marriage still sub-sisting,
the marriage is void absolutely and from the beginnhig;
and, as between the parties themselves and those claiming un-der
them, no rights whatever are acquired by such marriage.
And whether a marriage was void or not, may be enquired into
Ijy any court, in which rights are asserted under it, although the
j)arties to the marriage be dead. Gathings v. Williams, 5 Ired., 487.
9. Where husband and wife are domiciled in this state, and
the husband obtains a divorce from the bonds of matrimony on
account of her adultery, and she then goes into another state
while her late lms1)and is living, and there marries another man
in evasion of the laws of this state, which prohibitJier from mar-rying
again, such marriage is null and void to all purposes.
Williams v. Oates, 5 Ired., 535.
10. It is not necessary to the validity of a marriage that the
parties shoidd have obtained a license from the clerk of the coun-ty
court. The omission of the license only subjects the minister,
or justice, performing the ceremony to a penalty. State v. Rob-bins^
6 Ired., 23.
698 HUSBAND AXD WIFE.—I.
11. It is sufficient proof of a marriage that the ceremony was
]M;n-formed by one, who was in the known enjoyment of the oifice
of a justice of the peace, and notoriously acting as such. It is
not necessary to produce his commission from the governor.
1 hid.
12. The words '^the cure of souls" used in the mairiage act,.
Iiev. Stat., ch. 71, do not imply a necessity that the minister
sh(ndd be tlie incumbent of a chui'ch livingv or the pastor of any
• umgregation or congregations in particular; but they do imply
that the person is to be something more than a minister merely,
and that he has the faculty, according to the constitution of his
church, to celebrate the rights of matrimony, and to some ex-tent,
at least, has the power to administer the christian sacra-ments.
And when a marriage is claimed to have been made by
a minister, the exteiit of his authority for that purpose should
a]ipcar. Staie v. Bray, 13 Ired., 281). (See Rev. Code, ch. 68,
sec. 1, Avhere the words having " the cure of souls " is omitted.)
IT). The act of 1838, ch. 24, declaring void all marriages be-tween
white persons and free negroes and persons of color, in-cludes
only cases where such persons of color are within the
third degree. Hence, where in an indictment for fornication
against A and B, who had been married, it appeared that one of
the defeildants was of Indian blood, but of what degree was not
])rovcd, it 2vas lield that the parties could not be convicted. State
V. Melton, Bush., 49. (See Kev. Code, ch. ()8, sec. 7.)
14. If one marry an infaE-t female under fifteen years of age,
without the consent of her fother or guai'dian, the forfeiture, un-der
the act of 1820, does not arise from the oflence simply, but
from that and a conviction therefor in due- time. Ludnncl' v.
Stafford, 6 Jones, 109. (The law is now altered, so that the for-ieiture
accrues immediately upon the commission of the offence.
See liev. Code, ch. ^ot^, sec. 10 and 11.)
15. A male and female slave intermarried Avith the consent of
the owners, in the forn> usual among slaves; afterwards the
male slave was dul^- emancipated and purchased his wife,, and
after that they had one child; the female slave was then eman-cipated,
and without any further marriage ceremony they con-tinued
to live together and had sevei'al other children ; the fe-male
then died and the male married in due form a free woman.,.
l)y whom he also had children; and it uxin held that there was
no legal marriage between the man and liis first wife, and, con-sequenth',
her children were illegitimate, and could not inherit
upon the death of their father, as tenants in common with his
legitimate children by his second wdfe^ Howard v. Howard, (>
Jones, 235.
16. The 12th section of the 68th cliapter of the Revised' Cbdi©
(concerning marriage,) which requires a certifi'cate in case the
parent or guardian of a female lives out of the State^ before a
HUSBAXD AXD WIFE.—I.-II.-III. 099
marriage license .shall be issned, is not confined to females under
tifteen, but applies to all under twenty one years of age. Caroon
V. Rogers, () Jones, 240.
17. The peiialty ot $1,000, given bv the 13th section of the
same act against a clerk who wrongfully issues a license, cannot
he recovered in the name of the father of the infant female, but
must 1)6 sued for in the name of the State. Ihid.
18. Where at the time of a marriage the female was under
the age of fourteen, and the parties continued to live together
as man and wife, after she had attained that age, it mas held that
tliere was nothing in the Ilex. Code, ch. 68, sec. 14, to abrogate
the principle of the common law, and that such living together
as man and wife, after tiie age of consent established i^y the act
referred to, amounted to a confirmation of the marriage. Koonre
V. Wcdlace, 7 Jones, 194.
See (Evidence—Hearsay and cominon reputation, 3-1 0-1(5-
17.) (Indictment—When an indictment will lie, 37-59.) (In-dictment—
Limitation of time within which an indictment will
lie, 3-4-5.)
H. husband's interest rK ms wife's person.
See (x\ction on the case��When case will or will not lie, 18.)
3n. husband's interest in his wife's estate during coverture, and
AFTER HER DEATH, AS SURVIVOR.
1. A note given to a married woman, living separate from her
husband, becomes his at once, without his assent. Sivann v.
Gauge, 1 Hay., 3, (5.)
2. After the death of the wife, if the husband die before taking
administration upon her choses in action, lier administrator, and
not his, is the proper person to sue for and distribute them; but
lie must account to the huBband'« administrator for all he re-ceives,
above what will pay her debts—the husband being enti-tled
as next of kin to the Avife. Whithie v. Frazier, 1 Ha'v., 275,
3. Slaves, in whom the wife has a remainder, vest in the hus-band,
though he dies during the coverture, without having re-duced
them into possession. Leu-is v. Bi/nes, 1 Hay., 278, (320.)
See contra, Hynes v. Leivis. Tav., 44, (33.) Neat v. Haddock, 2
Hay., 183, (383.) 3foye v. -, Ihid, 188, (387.) Neal v. Bad-docJc,
Conf Rep,, 75, (207.) McGallop v. Blount, Ibid, 96, (227.)
Idcr> qucere! and see Knight v. Leal-e, 2 Dev. and Bat., 133.
4. Where a tenant for life l)equeathed one-half of the emble-ments,
to which she was entitled, to her daughter, and left an
executor, who, after reaping and housing the crop, married the
daughter, but died before he had sold or otherwise disposed of
700 HUSBAND AND WIFE.—III.
it, l.e'd that his possession of the crop was on\j as executor, and
that, upon his death, his wife, and not his administrator, was
entitled to it. Berry McAli.ster, Conf Eep., lUO, (231.)
5. Upon the marriage of a feme sole, a life estate in a chattel,
reserved by a deed of gift made by lier, when sole, to her son,
l^ecomes vested in her husband. Black v. Beathi, 2 Murph., 240.
S. C, 1 Car. L. E., 96, (12.)
(I If a feme sole, just before her nmrriage, convey slaves to
her mother, without the knowledge or consent of her intended
husl)and, he cannot, after marriage, recover them back in right
of his wife, at least in a court of law. Johnson v. HamhleL 2 Car.
L. R., 1)(7, (103.)
7. A warranty of title, annexed to a slave sold to the wife be-fore
coverture, if the slave be recovered from the husband after
the death of the wife, does not survive to the husband; because,
though relating to property which did vest in the husband, its
essential quality as a chose in action remained unaltered; aiid
+he husband could not recover upon it, except as the administra-tor
of the wife. Casey v. Fonville, 2 Car. L. R., 404, (2S7.)
8. A slave hired out for a year is not a chose in action, and if
afeme owner of such slave marry during the year and her hus-band
die before the end of it, the slave will not survive to her,
Ijut Avill vest in his personal representative. WhitaJ;er v. WMta-
/.Y:/-, 1 Dev., 310. S. P., Granberry v. Mhoon, Ibid, 45G. Petti-jolm
V. Beasley, 4 Dev., 512.
9. The husband, by his marital rights, is entitled to the per-sonal
estate of his deceased wife, whoever may administer. Hos-idns
V. 3mer, 2 Dev. 3(50.
10. The husband acquires, by marriage, no estate in the land
of his wife, of which she is not\ictually"seized. And where the
vv^ife has a vested remainder in lands, a sale, in the lifetime of the
particular tenant, of the husband's interest passes nothing to the
purchaser. Gentry v. Wagsfcffe, 3 Dev ,270.
11. It seems that, at law, the husband's assignment will pass
every expectant chattel interest of the wife, as if it were an in-terest
ot his own, unless so limited that it cannot, by possi))ility,
vest in possession during the coverture. But, at all events, an
assignment of the husband, if not binding on the wife surviving,
while the interest continues expectant, is certainly valid as a
conveyance, when the interest fells into possession during the
coverture. Burnett v. Boberts, 4 Dev., 81.
12. Slaves lent to a woman before marriage will l^o held by her
husband as bailee, and the statute of limitations will not operate
in favor of his possession, until the contract of bailment is at an
end. Logan v. Simmons, 1 Dev. and Bat., 13.
13. A conveyance by a woman before marriage is not, at law,
under any circumstances, a fraud upon the marital rights of the
husband. Ibid.
HUSBAND AND WIFE.—III. 701
14. The husband is not, by niariiage, the purchaser of his
-H'ife's chattels. JMamag-e is the only contract between the par-ties
; the latv gives to the hnsband his wife's goods as an inci-dent.
And Avhat the wife has disposed of before marriage is
not hers, and, therefore, is not tiTinsferred to the husband. But
on ante-nuptial voluntary bond, or conveyance of the wife, may,
in some cases, be relieved against in equity. Ibid.
15. If an administrator marry the next of kin of his intestate,
and has assets, and, upon the deatli of his wife, administers upon
lier estate, her distributive shaie becomes his property, the claim
being, by mere operation of law, satisfied and extinguished; and,
in such case, it seems, the wife's share would become the property
of the husband, without an administration on her estate. Dozier
v. jSanrhrlin, 1 Dev. and Bat., 24(3.
16. \Yliere an intestate is indebted to the wife of his adminis-trator,
and the latter has assets, the debt is satisfied by the mere
<:>peration of law, and does not survive to the wife. AVhether the
debt of the intestat<? be due to the husband or the wife, and
whether the one or the other be the representative, the doctrine
of retainer applies, and the debt is extinguished. Unci.
17. A husband has, jixre mariH, such a dominion over the
vested legal interest of his wife in a chattel, real or personal, of
which a particular estate is outstanding, that he can sell sucii
interest, so as to transfer it completely to the purchaser; or the
law can transfer it for his debts. But the rule is difierent as to
the assignment by the husband of his Avife's equitable interest in
a chattel, in which she has not the right of immediate enjoyment
;
for such assignment will n.ot prejudice her right, should" he die
before her, and l)efore the jDeriod allotted for such enjoyment to
take effect. Knujld v. Lecihe, 2 Dev. and Bat., 133.
18. A legacy given to a wife during coverture, but not paid
to the husband during his lifetime, survives to her; especially
where he joined her in a suit to recover it, and died before final
judgment. Revel v. Revel, 2 Dev. and Bat., 272.
ly. In lands conveyed to husband and wife, they have not a
joint estate, but hold by entireties, and upon the death of either
of them, the whole estate continues in the survivor, notwith-standing
the act of 1784, for abolishing the right of survivor-ship.
Motley V. WJiitemorc, 2 Dev. and Bat., 537. (See Rev.
Code, ch. 4:6, sec. 2.)
20. A distributive share, accruing to a wife during coverture,
does not vest in the husband, but will survive to the wife, unless
reduced into possession by the husband. Mardrce v. Mcuxlree, 1)
Ired 295.
21. Where the wife is tlie sole next of kin, and the husband
the administrator, and the debts of the intestate are paid or as-sumed
by him. and there are no i-easons why he should holdanv
/
702 HUSBAND xVND WIFE.—III.
lono-er as administrator, tlie presumption is very strong that he
hold as husband, and consequently for himself. Ibid.
22. Where there are other next of kin besides the wife, the
husband being administrator, he must, in order to entitle him-self
to the property in his own right, ,appear to be dealing with
it as his own, and not as administrator. Thus, where there were
other funds for the payment of debts, and the husband and tht;
other next of kin agreed to work the slaves on the intestate's
lands, and at the end of the year to divide the proceeds of lire
crop "according to their right as distributess, " it luas held that
this was a sufficient reduciion into possession by the husband,
to prevent any right of survivorship in the wife. Ibid.
2H. Property conveyed to a married w^oman, after a decree ob-tained
in her favor under the act Rev. Stat., oh. 39, sec. 12, is
not ]>rotected against the claims of the husband's creditors, if
the husband has paid, either from bis own means or the earnings
of his infant children, who live with him, the whole or any con-siderable
portion of the purchase njoney. Worth v. York, IH
ired., 206. (See Rev, Code, ch. oi), sec. U.)
24. Where personRi property belonging to a feme is held ad-versely
for more than three years against her, while she is an in-fant,
and during her coverture, which commenced before she be-cauie
of age, she, upon the death, of her husband, is entitled to
recover it, as her infancy and coverture prevented the statute o\'
limitations from barring her right, and the adverse possession
of the property prevented it from vesting in her husliand.
Airey v. Holmes., 5 Jones, 142.
25. If a man marry a woman, who was divorced from her first
husband on account of her adultery, the iuarriage, during flit;
life of the first husband,, is absolutely void, and the second hus-band
cannot actpiire any interest in her property, given to her
during the existence of su€h unlawful marriage. Culloivut/ v.
Bryan. 6 Jones, 5H1K
'26. A bequest of slaves to «, man and his wife "during their
natural lives," and "then to the lawful heirs of the wife," gives
the absolute estate to the wife by the rule in Shelly's case, and it
immediately vests in the husband, Jitre marHi. Hodges v. Little,
7 Jones, 145.
27. The act of 184.S, Rev. Code, ch. 50, see. 1, does not deprive
the husband of his estate by the cui'tesy, in the lands of his wife.
Houston V. Broicn, 7 Jones, IGl.
28. Where, by a deed to a feme covert,, an estate was conveyed
to her for her own life, it luas held that her husband had no in-terest
in it, except the right to receive the rents and profits du-ring
the coverture. Gray v. Mathis, 7 Jones, 502.
See (Executors and Administrators—Of their liability to leg-atees
and next of kin, 7.)
HUSBAND AXD WIFE.—IV.--V. 703
IV, CONVEYANCE OF REAI, ESTATE TO IIUSB.AND AND ^VIFE.
1. Where a conveyance of land is made to husband and wife,
they do not take interests as joint tenants or tenants in common,
but they take estates in fee by entireties, and not by moieties;
and the husbaiul cannot, by his own conveyance, divest the wife's
estate, but, on her surviving him, she is entitled to the whole
estate. Needhcan v. Branson, 5 Ired., 42(1
2. A conveyance of land, to a husband and his wife and tlieir
heirs, vests the entirety in each of them, and, upon the death of
eitlier, the survivor takes the Avhole in severalty. Woodford v.
Hkjly, 1 Winst., 237.
See (Husband and Wife—Husband's interest in his wife's es-tate,
cV:c., ID.)
v. CONKEYANCES BY IlCSBAND AND -WIFE.
1. It must appear that a deed from husbtind and wife was ac-knowledg-
ed bv the husband, as well as the wife. JVItitehurst v.
Binifer, 2 Haf., 401, (004.)
2. The privy examination of a,feme covert, as to the execution
of a deed, cannot be proved by parol Harrell v. Elliott, Tay.,
189, (^6.) S C, 2 Hay., 68, (236.)
3. On a deed from husband and wife, there w-as a certificate
endorsed, '• that the wife appeared in open court and acknowl-edged
the deed before the court, was privately examined, and
said it was executed freely and Avithout compulsion," and on the
minutes of the court there was an entry that the deed "W'as ac-knowledged;"
and it was registered. Held that it must be pre-sumed
to have been acknowledged by the husband, though not
so expressly stated. Hunter v. Bryan, 2 Murph., 178.
4. The deed of a feme covert, without a private examination as
directed by act of as.^embly, is a mere nullity and void; and, to
give validity to her deed, it must appear that her private exam=
illation has been had pursuant to the act; if it appear by the
clerk's certificate merely that " the deed was acknowledged in
open court, and ordered to lie registered," a private examination
will not be presumed from such certificate. Bobinson v. Barfitld^
2 Murph., 390. (See liev. Code, ch. 37, sec. 8, and following.)
5. By th(^act of 1715, as explained and amended by the act of
1751, a deed to convey the lands of a feme covert must, except
in case of her inability to attend, be acknowledged by the hus-band
and wife in open court, and proof of the execution by wit-ness
is not sufficient. Under these acts, the proper mode to bar
the wife, wdren she is able to attend, is for the husband andAvif«
to acknowledge the deed personally in open court, and then lor
one of the court to take the private examination of the wife.
Buryeis v. Wilson, 2 Dev., 306.
704 HUSBAND AND WIFE.—V.
G. When the wife cannot attend, the deed must be first proved
as to the husband, and then a commission issued to two or more
commissioners to take the acknowledgment and privy examina-tion
of the wife. Ibid.
7. Wiiere a justice of the court was ordered to take the private
examination of the wife, before the deed was proved as to either
the husband or the wife, who, upon making his report, proved
the execution of the deed by the husband and wife, and also
certified as to her private examination, held that the deed was
inoperative and did not bar the heirs of the wife. Ihid.
<S. The deed of a/cw?e. covert does not bind her, when her pri-vate
examination was taken under a commission by one commis-sioner
alone, and when slie was neither a resident of another
county, aged nor infirm. Barfield v. Combs., 4 Dev., 514.
9. Where it did not appear, either in the order for a commis-sion
to take the private examination of a feme covert, or in the
commission itself, that she was an inhabitant of another county,
(jr so aged or infirm as to be unable to travel to court, it ivas heJ^ J
that the deed was inoperative to- convey the wife's interest in the
land. Feimer v. Jasper, 1 Dev. and Bat., 34.
10. It seems that it must appear that tlie commission and the
certificate of the commissioners were retTirned to the court, ap-proved
and ordered to be registered, or the deed Avili be invalid!
as to the wife's estate in the land. Ihid.
11. A certificate of commissioners appointed by another state
to take the private examination of a /one covert^ touching the
free and voluntary execution of her deed, which states merely
that she " acknowledged the same to be her act and deed in due
form," is not a compliance Avith the act of 1810, which reipiires
a certificate of her acknowledgment, that she executed the deed
freely, and " doth voluntarily assent thereto." Lucas v. Cohbs,
1 Dev. and Bat., 228. (See Rev. Code, ch. 37, sec. 5.)
12. An order that the deed of a feme covert residing in an-other
state, with the accompanying commission, and certificates,
be registered, is not conclusive that all the requirements of the
statute have been complied with; and the omission of all or any
of them may be shown, when the deed is offered in evidence
upon any trial. Ibid.
13. The deed of a feme covert is void at common laM'-. and can
only be eflectual Avhen execDted according tc our acts of assem-blymen
that subject. By these acts the deed is to be first ac-knowledged
or proved, 'both as to husband and wife, and, then,
if she is a resident of another county, or unable to attend Irom
age or infirmity, a commission may be issued to take her pri-vate
examination, either by a judge or the county court; and
when her examination preceded the probate,, the deed was held
to be inoperative. Sutton v. Sutton, 1 Dev. and Bat., 582.
14. Either a judge out of court, or the county court in sesS'ion
HUSBAND AND WIFE.—V. 705-
may, upon being satisfied of the wife's inability to attend for a
privv examination, order a commission to issue for taking it.
Ibid.
15. Where neither the certificate of the commissioners, ap-pointed
to take the private examination of a feme covert., upon a
deed made by her and her husband, nor any record produced,
show that she was prvately examined, the deed is void as to her.
Ives V. Saivyei\ 4 Dev. and Bat., 51.
16. Where'a commission issued, by order of a county court, to
take the private examination of a /bvie covert as to her execution
of a deed, the recital in the commission that " it has been repre-sented
to our said court that INI. W. (the feme covert.,) is indis-posed,
so that she cannot travel to our said court," &c., is as ef-fectual
as if the same recital had been made in the order of the
court directing the commission to issue. And the words " in-disposed,
so that she cannot travel," &c., taken in reference to
the subject matter,must mean " unable to travel from siskness."
Skinner v. Fletcher, i Ired.,_ 313.
17. Where the commissioners certified that they took '-the
private examination " of the feme covert, and that she acknowl-edged
that " she executed the deed without any compulsion from
her husband or any other person," this is suffteient, without say-ing
that she was examined "privily and apart from her husband."
On the subject of the examination of femes covert, as to the exe-cution
of deeds, the phrases "privy examination," "private
examination," and "examination separate and apart from her
Inisband," are indifferently used in our acts of assembly. Ibid.
18^ A deed of husband and wife, dated 1st i\larch, 1834, was
oftered in evidence, and to prove the due execution of the deed
by the wife, a commission issued by the coui't to two justices to
take the private examination of the wife, dated 17th February,
1834, reciting that a deed had theretofore been executed by the
husband and wife, and authorizing the justices to take the private
examination, together with tlie return of the justices endorsed
on the deed of 1st March, 1834, was offered in evidence, it teas
held that the deed of the 1st March, 1834, was not the deed in-tended
to be submitted to the commissioners, and that their
certificate endorsed on that deed was m.ade Avithout authority,
and was therefore void, and that, of course, the deed did not pass
the title of the wife. Rich v. Beeding, 2 Ired., 240.
19. Where a deed from husband and wife, for the real estate of
the wife, had on it only the following certificate from the clerk
of the county court, as to its execution, to wit: "the private
examination (jf H. J., wii'e of J. C. J., taken, by C. A. H., a mem-ber
of the court, Avhich, being satisfactory, is ordered to be
recorded," and signed "C. A. H., J. P.," and a proof of the exe-cution
of the deed by the subscribing witness and an order of.
3*
70G HUSBAND AND WIFE—A".
registration, it iims field tliat the wife's iutei-est in the land did
not pass. Jones v. Lewis, 8 Ired., iO.
20. Where a deed was acknowledg-ed in the connty coiu-t by
husband and wife, and two justices took the private examination
of the wife., and reported the san^e to the court, and the court
acted upon the report, it teas held that the inference was irresis-tible,
that tlie two justices were members of tJie court appointed
for tluit purpose, though no special order of appointment ap-peared.
Etiieridge v. Ferehee, 9 Ired., ?>12.
21. It is sufiicient, if the certificate of the private examination
of the wife state that, upon such examination, she declared that
she had voluntarily executed the deed, without saying- tliat '' she
doth now voluntarily assent thereto." Ibid.
22. If, upon her privy examination, the wife state that, though
she was willing to convey when she executed the deed, yet she
had changed her mind and was then unwilling, her assent can-not
1)0 certified. Hid.
2;i It is immaterial whether the acknowledgm'ent or the pri-vate
examination be first recorded. Ibid.
24. Where a deed from husband and wife had on it the follow-ing
entries: "State of N. C, Currituck county, Feb. Term, lXo2,
personally appeared, L. C, wife of J. C, and in open court
acknowledged that she assigned the within deed of her own free
Avili, without any constraint whatever. Let it be registei-ed.
(Signed) W. D. B." '-This deed from J. C. and L. to S. R, Avas
exhibited and proved in open court by J. L. S., the subscribing
witness. At the same time, L. C, the feme covert, persoiudly
appeared in open court, and being privately examined by W. D.
I)., one of the court appointed for that purpose, who reported
that the said L. C. acknowledged the execntion of the said deed
of her own accord, and witliout any constraint whatever. &q:
On motion, ordered to be registered. (Signed) S. Hall, C. C. C."
And there was also the following entry on the minute docket
of the same term: "A deed from J. C. 1). and wife L., to JV. C
E., was proven as to J. C. and wife, by the oath of J. S., a witness
thereto, and her private examination taken in open court and
ordered to be registered." It icas held that these entries did not
show that the wife had been privily examined, as recpnred by
law. FAheridge v. Js)bee, 9 Ired., 35;-5.
2'). Upon the probate of a deed for land by husband and wife,
the Avife residing in another state, a connnission to take the pri-vate
examin.'ition of the wife may issue from tlie coiu't of the
county where the land lies, under the act of ]7r)b_ In the lie-vised
Statutes, by a misprint, the Avord "conntry, " in the act of
1751, is chang-ed to the Avord "county, " but from the context,
the construction of the lievised Statute must be the same as that
(,t the act of 1751. Fiercer. Wanett, 10 Ired., 44G. (See liev.
HUSBAND AXD WiFE—V. 707
Code, cli. 37, sec. 9, where the words "country or county" are
inserted.)
•2\). In order to be allowed to introduce in evidence the deed
of a married woman, the followin.^ facts were proved: "That
upon the record of X. H. county court, at August term, 1818,
there was an entry in these words: Ordei'ed tliat J. M, C. and D.
J. be a})pointed to take the private examination of S. P., wife of
P. P., t(_)uclung- her free execution of a deed executed bv them
to Samuel Potter, dated July :^lst, 1818. On tlie 10th of August
the clerk issued a commission to the said J. M. C. and D. J., as
residents of X. H., to take privy examination of the/eme, recit-ing-
that the deed had been proved in tlie county court, and that
it'liad been represented to the court, that the said 8. P. could
r.i>t travel, Szc, and upon it the commissioners on the same day
returned the private examination," and then follows an entry on
tlie commission, that the execution of the deed was proved by
-.' M. C, Avho, and 1). J., are the subscribing witnesses; upon
•>.i''h it was registered. It loas held that this Avas not sufH-
»;,'nt proof of the execution of the deed by the wife. Ibid.
Si. A certificate of probate on the deed of a feme covert set
itb, that the deed "was exhibited in open court and the exe
ei ttion thereofby (the husband) was proved by T. S., (a subscribing
witness,) and acknowledged by (the /ewe covert) wlmn on motion
in open court (L. S., Esq.,) one of the presiding justices was
aT:)pointed to take the private examination of (the said feme
r r.-erl) as to her consent in signing the said deed, who reported
':0 acknowledged to have signed it of her own free will and
•>'()rd, witliout any compulsion from her said husband. Ordered
'
I be recorded;" and it icas. held. that the probate was sufficient
' make the deed valid against the wife. Beckwith v. Lamb, 18
::ed., 400.
'2!<. A copy of the proljate of a deed, by tlie subscribing wit-ss,
also of the order made by tlie county court to appoint
: .iiimissioners to take the private examination of a /"erne covert,
\'.';is inserted on the deed itself, as also was the report of tlie
'•^iinmissioners, which were duly registered, thougii no other
iiimissiou issued to them and no other report was made to the
I'.vt; and it was Jicld that tliis was a substantial compliance
;th thy act of assembly, and that the deed was duly authen-ij'uted.
HatJianrq/ v. I)are/rport„ 2 Jones, l')2.
•2';). A deed made by a husband and wife for the wife's land, to
' !!e who died previously to the probate and privy examination
( i' the wife, is good, and relates back to the time of its execu-tion,
provided that, after the bargainee's death, it was duly ac-
Icnowledged, the i)rivy examination of the wife taken, and' the
deed registered. Ji<dl v. Bvnlrr, 2 Jones, 440.
oO. Where a husband professed to convey, in fee simple, land
v>-hich belonged to his wife, by a deed in which he only was
708 HUSBAND AND WIFE.—Y.
mentioned as the grantor, and after the delivery of the deec"
his wife signed, and sealed it, it was held that she was not thereby
made a party to the deed, and, consequently, that her interest
in the land was not thereby conveyed. Kerns v. Peeler, 4
Jones, 226.
ol. Where a certificate, on the back of a deed by a husband
and wife for the wife's land, purported to be an acknowledgment
in the county court, and an examination ot the wife before some
member of that court, but was subscribed by the name of a
judge of the superior court,, i^ urns held that the certificate was
inefieetive. Barbee v Taylor, 6 Jones, 40. _
32. Where there was an order to take the private examination
of a feme covert, and there was also a probate of the deed as to
the husband by a subscribing witness, and a commission, and its
return, certifying that tlie commissioners had taken the privy
examination, and that the wife had declared that she executed
the deed freely and voluntarily, and an order of registration, all
appearing to have been done on the first day of the court, it teas
held that it must be taken that the proof of the deed, as to the
husband, occurred before the order and commission for examin-ing-
the wife—especially as the commission recited that the deed
had been proved, and that, consequently, the probate and privy
.'T^xamination were sufficient. Pierce v. Wanett, 6 Jones, 1()2.
33. Where a feme covert, having a life estate only in land,
made a deed purporting to convey it in her own name, her hus-band
not being: named as a party to the deed, though he affixed
his signature to it along with his Avife, it was held that it was
void as to her, on account of the coverture, and as to him, be-cause
he was not a party to it; and that no privy examination
^•ould give validity to such an instrument. Gray v. MatMs, 7
Jones, 502.
34. Where the intention of the parties to a deed is manifest
m its face, the court, in giving a construction to doubtful pro-visions,
will, if possible, effectuate such intention. Hence, where
a wife, after marriage, supposing the Avhole interest in her land
was in her, made a conveyance to a trustee for her sole and .' ep-arate
use. in which the husband was mentioned as a party, and
executed it as a party, and he also, by various clauses, manifested
a concurrence in her act, but did not profess to convey any es-tate,
it loas held that the sum of ten dollars, recited in the deed
HS having been paid to the wife, was, in legal effect, paid to him
also, and that this sum raised a use from the husband to the trus-tee,
which was executed by the statute of uses,, and thus his in-terest
in the land, as well as that of the wife, was transferred tc)
tlie trustee. Barnes v, Hayharger, 8 Jones, 76.
See (Estoppel—By Deed, 32-36-37.) (Limitations—As to
i:ea) estate, 19.)
HUSBAND AND WIFE.—VI. 709
VI. OF MARRIAGE SETTLEMENTS AND AGREEMENTS.
1. The act of 1785, which reqmresthe registration of marriage
contracts, makes tliem void against creditors only, if it be omit-ted.
Richardson v. Fleming, 2 Car. L. E., 455, (341.) (See Rev.
("ode, oh. 37, sec. 24.)
2. Articles made in contemplation of marriage, whereby the
intended husband " sells and assigns " to a trustee all the, right
in slaves belonging to the intended wife, " which he by opera-tion
of law may thereafter have," do not pass a title in the slaves
to the trustee^ but are merely executory, and bind the hus-l)
and, after marriage, to make the necessary assurances to carry
•them into effect. "Cox v. 3fiirphy, 2 Dev. and Bat., 257.
3. The act of 1829, which enacts that no deed of trust or mort-gage
shall be valid to pass property, as against creditors, but
from the registration thereof, embraces only those deeds in trust
which are intended as securities for debts, and does not include
deeds of settlement between husband and vnie, in which the
property is conveyed to a trustee in trust for the wife ; the deeds
of the latter class'^being provided for, as to their registratioUv in
the 29tli section of the Eevised Statutes. Savnders v. FerriP, I
ired., 97. (See Rev. Code, ch. 37, sec. 22 and 24.)
4. A post-nuptial settlement, made between husband and wife,
in which a greater interest in the property is secured to the wife
than was provided for in the marriage articles, is void as against
creditors, under the acts of 13 Eliz. and 1715. Ibid. (See Rev!
ode, ch. 50, sec. 1.)
5. No ante-nuptial agreement or transaction between husband
nd wife can he proved by *parol, to support a settlement made
iter marriage, to the obstruction of the husband's creditors ; for
iieactof 1785, which requires '• all marriage settlements and
her marriage contracts" to be registered within a particular
me, to make them valid against creditors, must necessarily ex-
'ude all such contracts as in their nature do not admit of]regis-ation.
Ibid. (See Rev. Code, di. 37, sec. 24 and 25.)
G. Marriage settlements must be proved within six months after
iieir execution, before a judge either of the superior or supreme
'•durt, or before a court of record; otherwise they will be void as
to creditors. Probate before the clerk of the county court, as in
the case of deeds in trust, will not be sufficient ; and an uuau-t'lorized
registration is not even notice. Smith v. Castrioc, 5
Ired., 518. (It seems they may now be proved before the clerk
of the countv court, or his deputv. Sec Rev. Code, ch. 37, sec.
2 and 24,) "^
7. A married woman cannot make a contract with her hus-
1 land, except through the intervention of a third person, to whom
the duty ofeiiforcing.it, in liei- behalf, belongs; and it miast be
710 HUSBAND AND WIFE.—A^.—VII.
by a deed to which she is a party. Barhee v. Armstead, 10
Ired., 530.
_
See (Eegistration, 35-3()-37.)
YII. OF ACTIONS BY ASD AGAINST HUSBAND AND WIFE.
1. If a,/eme covert sne in her own name, for money earned by
her during- coverture, she shall recover, if her marriage be not
pleaded in abatement, as advantage cannot be taken of it on a
motion lor anonsiiit. Qucere bv Haywood, NeivtonY. Bohinsdn,
2 Play., 121, (285.) S_. C. Tay.,^72, (50.)
' 2. Husband and wife must join in detinue for her slave, de-tained
before, and at the time of the marriage. Jolmston v.
Pasteur, Conf Kep., 464, (520.) S.. C, 2 Hay., 406, (495.) S. P.,.
Norfleet v. Harris, Conf Rep. 517, (564,)
3. Where the wile was an infant, when the act of 1(S06, relative
to parol gifts of slaves was passed, and became covert during her
infancy, the act cannot be set u]> against a suit brought by her
husband and herself; and in such action they may, and ought
to join. Allen v. Gentry, 2 Car. _L. Pi. GOJ), (411.)
4. Where a defendant in detinue holds adversely a chattel,,
claimed under a feme before marriage, the husband and Avife
must join; but where the defendant is a bailee, the right of tlie
husband accrues, and is complete, upon the marriage, and the
possession of the bailee is hispossession, and consequently he must
sue alone. Armstirmq v. Simonion, 2 Murph., 351, S.. C. N. C.
Tei::. R., 266, (61)0.)
5. Husband and wife cannot join hi detinue for a chattel, if
the liusbandhad actual or constructive possession after marriage,
for, by the marriage and such possession, the whole vests exclu-sively
in the husband. Spiers v Alexander, 1 Hawks, 67.
6. The husband of a feme cestui que trust cannot recover lier
interest in slaves, held by a trustee under a deed in trust, to be
divided between her and others, without joining his wife. Gillis
V. BIcKay, 4 Dev., 172.
7. Where a person has been admitted, on motion, under tlie
act of 1798, a party to a suit as the husband of a feme sole, by
whom the suit had been instituted, it is too late afterwards for
the defendant to object to the validity of the raamage, except
on an application for rescinding the order of admission as im-providently
made. AVhile such order remains- in force, no evi-dence
can be received, on the trial of the cause upon the issues,
for the purpose of impeaching the validity of the marriage. The
o1)jection should have been made, when the motion for admission
was submitted to the court, and the question then triecL Hohhs
v. Bush, 2 Dev. and Bat., 508.
8. If a woman sue, and afterwards marry, and the marriage is
not pleaded in ii\yd.ivvaQ.Tit puin darrein continuance, she may have
HUSBAND AND WIFE.—YII.-YTIL 711
judgment, and it cannot be reversed for error. Johnson v. E^uj-land,
4 Dev. and Bat., 70.
il. The husband has entire control over a judgment confessed
to, or obtained by, his wife during coverture, and the proper Avay
for him to proceed to enforce it is by making himself a party by
sci fa.., as in case of a judgment obtained bv a feme covert dum
sola, who had married before execution. Ibid
10. Whenever a suit will survive to a wife, she may be joined
with her husband in the action. JVestv. Tilghman, 'il Tred., IGo.
11. An action upon the administration bond of an adminis-trator,
for a distributivti share belonging to a married woman,
must be brought on the relation of husband and wife, though
the husband mav have assigned his wife's share to a third person,
^Yafev. C/rtrZ-, iblred., 172.
12. Where the husband has possession of the wife's land, after
issue born, case, in the nature of waste, is the proper remedy for
an injury to the inheritance by cutting timber trees, and should
be iu the name of the husband and wife jointly. But, for an
injury to the crop, he must sue alone, and the statute of limita-tions
bars the action after three years. The rule is, where the
husband may sue alone, or may join his wife, the statute of limi-tations
bars; but when he imtst join his wife, the statute does
not bar, for it is her action. WiUiains v. Lanier, Busb. 30.
lo. For a trespass to the land of the wife, before marriage, the
wife is a proper party with the husband, in a suit for the same.
Hair V. Melvin, 2 Jones, 59.
14. A husband can maintain an action of ejectment on a sep-arate
demise by himself, though he claims under a deed made to
himself and his wife. Topping v. Sadler, 5 Jones, 857.
15. Where a husband and wife joined in a demise in an action
of ejectment, dated before they were married, it was held that the
action could not be sustained, Elliott \. Newhold, 6 Jones, 9.
IG. For an injury to the wife's land after coverture, she may
join with her husband in an action of trespass, and both husband
and wife may join with other tenants in common, for an injury to
their common property. Deans v, Jones, G Jones, 2o0.
17. In an action against a fenymanfor negligence in carrying
the plaintiffs wife across his ferry, whereby she was injured, it
is not necessary that she should be joiiied as a party plaintitF.
Crump V. BIcKay, 8 Jones, H2,
Vni. HOW FAR THE HUSliAKD IS KOUXD HY THE ACTS AND AD.MISSIOXS OF
HIS WIFE, UEFORE AND AFTER MARRIAGE.
1. Where the wife is the agent or servant of her hus1)and, her
acts and admissions against his interf st are admissible in evi-dence.
HtKjhes V. Stokes, 1 Hay., 872, (427.)
2. Husband suing, as administrator of another person, for
712 HUSBAND AND WIFE.—VITI-IX.
slaves, is not estopped by the deed of his wife, made while sole,
f'onveying the slaves to the defendant. Millison v. Nicliolson,
Con£ Rep., 499, (549.) S. C, 2 Hay., 306, (494.)
3. A husband may shov/ the idiotcy of his wife before covert-ure,
to avoid a deed made by her while she was in that condi-tion.
Ibid.
4. The husband is bound by the acts or declarations of his
wife, done or made while she is acting as his agent. Torrence
V. Graham,! Dev. and Bat., 284.
5. A feme covert may become an agent for her husband, and
such an appointment as agent may be inferred from his acts and
i'onduct respecting her. When the agency is to be inferred from
liis conduct, that conduct furnishes the only evidence of its ex-tent
as well as of its existence, and in solving all questions on
this subject between the principal and third persons, the general
rule is that the extent of the agent's authority is to be measured
by the extent oi his usual employment. Cox v. Hoffman, 4 Dev.
and Bat., 180.
6. The husband is responsible for any injury done to the prop-erty
of another person, by the negligence, carelessness or unskill-fulness
of his wife in her performance of his business, the wife,
in this respect, being considered as his servant. Ibid.
7. If a husband and wife live separate, and a person, having no-tice
that the husband does not hold himself liable for any debts
she may contract, trusts lier even for necessaries, he cannot re-cover
for them against the husband, unless he can show that the
wife had a good cause for the sejjaration. Pool v. Everton, 5
Jones, 241.
IX. OF THE LIABILITY OF A WIFE FOR IIIS ACTS DURING COVERTURE.
"1. A plaintiff cannot convert an action founded on contract
into one for a tort, so as to charge a/eme covert defendant. To do so ,
the tort complained of must be an actual trespass. Therefore,
where the plaintiff hired to the wife of A a horse, she acting as
the agent of her husband, and the horse was injured by immod-erate
driving, and the action was br()ught against the husband
and w^ife jointly, but abated as to the former by his death, it was
held that the action did not survive against the wife. Barnes
V. Harris, Busb., 15.
2. Where a feme covert, having a separate estate, but living
with her husband, contracted debts without the concurrence of
her trustee, and without charging them specifically on her sep-arate
estate, it loas held that she was not liable to pay them, and
•that her promise to do so, after the death of her husband, was
•r^'ithout consideration and void. Felton v. Reid^ 7 Jones, .269..
IDIOTS AXD LUXATICS 71 :>
IDIOTS AND LUNATICS.
1. The proper finding in an inqnisition of kmacy is that the
party is an idiot or huiatic, though it may answer to find that
he is of "insane mind," but not that he is "incapable of manag-ing
his aftairs," which is void. Armstrong v. Short, 1 Hawks, 11.
2. No person is entitled to a traverse to an inquest of office in
its proper and technical sense, under the Stat. 2 Ed. 6, so as to
vacate'the otfice, unless he be interested at the time of filing it.
But such an inquest, when offered in evidence, is only presump-tive
proof against all persons not parties or privies; held, there-fore,
that in' del)t on a bond given after an olSce was found,
where an inquisition was pleaded for the defendant, the plain-tifli"
might, in his replication, traverse the truth of it, and upon
the trial give evidence in support of his traverse. Ibid.
3. An inquisition of lunacy, Avhich appeared to have been
taken by the coroner and twelve freeholders, and returned to
the court, and by it confirmed, and from which it did not appear
that the lunatic was present, was offered in evidence to support
the plea of 72on comjios mentis, and it was held, that having been
receive by the county court as an inquest, and a guardian hav-ing
been appointed under it, it was admissible as the record of
an inquest. Arrington v. Short, 3 Hawks, 71.
4. The proceedings on an inquisition of lunacy are not void,
because no affidavit accompanied the petition to the court, nor
because the alleged lunatic was not present at the time of taking
the inquest, nor because the jury, in their inquisition returned to
the court, found that "he is lunatic and idiotic," they having also
found that " he is of nonsane memory.'" The former word should
be rejected as surplusage. Bethea v. McLennon, 1 Ired., 523.
5. It is generally proper that an affidavit should accompany
the petition, but this is a matter for the discretion of the court
to which the petition is addressed. Ihid.
6. The alleged lunatic has a right to be present at the inquest,
and if this right be denied him, it is good cause for setting aside
the inquisition. But where an inquisition, taken by order
of a court of competent jurisdiction, is returned to and confirmed
by the court, it is to be respected like other judgments of a court,
until it be reversed or superseded. Ibid.
7. The guardian of a lunatic cannot bring an action of eject-ment,
nor any other action at law, in his own name, though the
guardian of an infant may bring ejectment in his own name.
Broolis V. Brooks, 3 Ired., 3<S9.
8. A guardian of a lunatic may, by order of the county court,
rightfully sell the personal property of the lunatic for the pay-ment
of his debts, provided there Ije no fraud in the proceeding.
Howards. Thomfpson^ 8 Ired., 3G7.
714 IDIOTS AND LUNATICS, ETC.
9. Contracts with lunatics are not all absolutely void ', but sucli
as are fairly made with them for necessaries, or things suitable
to their condition and habits of life, will be sustained. And
when a person is so insane as to attempt to injure himself, and
to destroy his property, the services of a nurse and guard fall
within the class of necessaries, as defined by law. Richardson
'V. Stromi, 13 Ired., lOB.
10. X\\ action accruing to a lunatic must be brought in his
name, and not in that of his guardian. Green v. Kornenay^ 4
Jones, ^Q.
11. An inquisition of lunacy is not conclusive against a person
dealing Avith a supposed lunatic; but he may show that, at the
time of the contract, such supposed lunatic had sufficient ca-pacity
to make it. Parker v. Davis, 8 Jones, 4G0.
TNCENDrARY PUBLICAN TONS.
1. The delivery of a copy of an incendiary publication to OBe
individual, with an unlawful intent, is a circulation, within the
prohibition of the act, Rev. Code, ch. 34, sec. 16. State v. Worth,
7 Jones, 488.
*
2. In a prosecution imder tlie act, it is not necessary to aver
or prove that tlie forbidden publication was delivered to a slave
or free negro, or Avas read in his presence. I hid.
3. A bound volume, having the tendency described iu the act,
is within the meaning of it. Ih'id.
4. A book, which denoujjces slavery as worse than theft, and
as leading to miu'der, and proclaims that it must be put an end
to, even at the cost of blood, is within the u^eanini!- of the act, as
tending to excite slaves to insurrection. I hid..
See (Evidence—In criminal proceedings and indictments, 118.)
INDECENCY.
See (Indictment.—Ftmn and matters relating thereto, ?^'2.\
INDIAN LANDS. 715
INDIAN LANDS.
I. The act of 17<So forbade entries or surveys to be made of
certain lands, set apart for the Cherokee tribe of Indians. In 1791,
this tribe, in a treaty with the general government, " relin(]^uish,
release and cede these lands." The right of the Indian tribes to
lands is regarded, by the Euroj^ean and American governments,
as a mere possessory right, and the cession of tliis' right by the
Cherokee tribe vested the right in North-Carolina, and the Uni-ted
States were the agents for North-Carolina for that purjiose.
Strother v. Catheij, 1 JMurph., 162.
'Z. The grant made by the Governor in 1717, to the Tnscarora
tribe of Indians, was absolute and unconditional, and did not
require the residence of the Indians upon the land. Sacarusa v.
Kim/, 2 Car. L. E., 451, (33(3.)
3. The proviso in the act of 174S, being in derogation of the
rights actually vested in the plaintiffs (Indians, ) cannot be re-garded.
But if the legislature of 1748 could rightfully superadd
the condition contained in the proviso, subsequent legislatures
had an equal right to modify or abrogate ft. And the acts of
1778 and 1802 make a different appropriation of the land, on
the happening of either of the events mentioned in the act of
1778, from tiiat made by the act of 1748 Ibid.
4. Clierokee Indians, in possession of land within the limits of
North-Carolina, reserved under the treaties of 1817 and 1819,
made between the United States and the Clierokee nation, are to
1)6 considered as purchasers of the lands; the exercise of power
by the commissioners of the United States being legitimate, and
the treaties having been recognized by several acts of our legis-lature.
The Indians need not claim under a grant issued in the
usual manner, but may derive title by a special grant, such as
that under which the university claims escheated lands, by vir-tue
of an act of assembly. Eu-hdah v. Wdclt, 3 Hawks, 155.
5. Under the 3d article of the treaty of 1819, between the
United States and the Cherokee Indians, the particular Indians,
residing within the limits of North-Carolina, to whom reservations
in fee simple were made, had a riglit to alienate the tracts reser-ved
as they thought proper, prior to, and independent of, any
act of the State legislatuTe. BelJc v. Love, 1 Dev. and Bat. 65,
6. The condition, annexed to the reservations under this arti-cle,
does not require a perpetual residence on the tracts reserved,
but only a notification ol mx intant to reside, which is a condition
precedent, and, when complied with, the estate becomes absolute.
But if this Avere otherwise, an individual could not treat the es-tate
as at an end, before the State enforced a forfeiture for a
breacli of tlie condition. Ibid.
7. Tlie right to a reservation of land, granted by the treaty
71(? INDIAN LANDS.
with the Cherokees in 1837, to each head of an Indian family,
ehoosing to remain in this state, does not attach to the hind
ceded by .the treaty of 1835. Sutton v. Moore, 3 Ired., Q)i).
8. Under the acts for the sale of the Cherokee lands, the pur-chaser
has a right, upon the certificate of his purchase from the
commissioners, to institute an action of ejectment in the name
<-)f the State, against any person in possession. And the person
so in possession cannot set up as a defence to this action, that he
had received a deed from the pin-chaser, which had never been
registered, but which was alleged to be lost or destroyed, by an
agent of the purchaser. State v. England, 7 Ired., 153.
9. Under the act of 1852, ch. 169, entitled "An act to bring
into market the lands pledged for the completion of the Wes-tern
Turnpike Koad," it is the duty of the entry taker to demand
and receive bonds, for the purchase money of the land, before he
takes the entry. ' Jarrett v. Kinc/fiey, 3 Jones, 488.
10. The acts of assembly relating to the sales, &g., of the
Cherokee lands, prior to the act of 18'52, confer special authority
md jurisdiction on the commissioners; and to give effect to a
. ;-rant issued by virtue of these acts, the cases to which they are
. '.':»tricted must be shown. Harshuio v. Taylor, 3 Jones, 513.
11. Where a general authority and jurisdiction is conferred i^n
ribunal, the action of such tribunal is presumed to be right
until the contrary is shown; but where such authority is special,
it must be shown by the party asserting the validity of its action,
that the prescribed state of iacts existed, which called for such
action. Ibid.
12. The title to the unsold Cherokee lands in the county of
laywood was, by the act of 1805, vested in the justices of that
;;ounty, and where their commissioner, whose powers and duties
vere limited, by the order of the court appointing him, to three
nontlis, executed a deed for a portion of said lands at the end of
'tiree years, it was held to be inoperative and void. Cooper v.
(ri6so7z,'6 Jones, 512.
13. Where a Cherokee Indian took a reservation of a certain
n-act of land for himself for life, with a remainder in fee to hie
hildren, which he was authorized to do under the treaties of
817 and 1819, but which he was to forfeit should he voluntari-
,y abandon it, i^ luas held t\\?it his selling the land to a Avliite
; aan, and leaving it, was a voluntary removal therefrom, and w<^s
, forfeiture of the whole estate, so that his children lost all right
io it after his death. Welch v. Trotter, 8 Jones, 197.
See (Landlord and Tenant, 32.)
L\DianiEXT.—I. ii
INDICTMENT.
I. In what cases an indictment will lie. \l. Plea of former acquittal or con-
11. Form and matters relating thereto.
III. Of the trial, verdict and judgment.
IV. How a presentment is to be made, or
a bill found.
V. Effect of a nolle prosequi.
viction.
Viy. Of quashing 'udictments.
Yin. Variance betvreen the allegations
and proofs.
IX. Limitation of time within which an
indictment will lie.
I. IX WHAT CASES AN INDICTMENT WILL LIE.
1. Where a merchant's clerk liad sent goods from the store to
a person at a distance, with directions to sell them, and he had
not communicated this transaction to his principal, or any of his
other clerks, nor made any entry of it in the books, on an in-dictment
under the stat. 21 Hen. 8, ch. 7, (Rev. €ode, cli. 34
sec. 18,) the judges difiered on the question whether he could be
convicted under the statute, but agreed that he might be con-victed
of larceny at the common law. State v. Hiygins, Alar.,
'>2, (59.) ,
"
2. A person may be indicted for perjury on an affidavit not
signed by him. State v. Ransome, 1 Hay., 1.
?>. An indictment for a forcible trespass will lie against per-sons
for taking and carrying av/ay slaves, from the possession of
him M-ho has it. though done by the command of the real owner.
State V. White, 1 Hay., 13, (18.)
4. If a horse be stolen in one state or territory and be carried
into another, an indictment for larceny in the latter cannot be
supported; and upon a special verdict stating these facts, judg-meiit
must l)e rendered for th& defendant. State v. Brown, 1
Hay., 100, (110.)
;1 If an outhouse be so near a dwelling house, that it is used
therewith as appurtenant to it; as if it be within seventeen and
a half feet of it, burglary mav be committed in it. State v.
Twitty, 1 Hay., 102, (118.")
G. The State cannot divide an oftence. consisting of several
trespasses, into as many indictments as tht.re are acts of trespass,
that would separately support an indictment, and afterwards in-dict
for an oft'ence compounded of them all. State y, L/ylcs, 2
Hay., 4, (148.)
f. If a public officer, entrusted with definite powers to be ex-ercised
for the benefit of the community, wickedly abuse, or
fraudulently exceed them, he is pmiishable by indictment, though
no injurious effects result to any individual from his- miscon-duct.
State \. 6-7«.SY/o?r. Conf Kep., 38, (17G.)
8. The secretary of state, whose duty it_wa8, under.au act of
nS INDICTMENT.-^I.
the legislatiu-o, to issue land warrants under certain circunistaii-
C'Cfc!, was held liable to be indicted in this state for fraudulently
issidng- such warrants, though the title tc the land, for which the
warrants were issued, was in the United States, and not in this
si.ate. Ibid
i>. An indictment will not lie for a mere intention to pass coun-terfeit
bank notes, knowing tliem to be counterfeit, if no cul[)a-ble
ad be charged. State v. Fenny, 1 Car. L. li, 517, (130.)
10. Profane swearing, independent of the disturbance and in-jury
it may produce to those who hear it, is not indictable; but
when the facts will support a charge of it as a nuisance, it is in-dictable.
State V. Kirhy, 1 ]\Iurph., 25-1. S. P., State y. Filar,
1 Dev., 2G7.
1 1. An indictment for trespass in taking personal property can
onlv be supported when the taJiing is by force, or 'ji/an/j forti.
Slide V. Flowers, 2 Murph., '22b, S. C. 1 Car. L. \\. 97, (13.)'
12. If one gain.possession of a slave who has come upon his
land, he may protect himself and the slave from an attempt to
j-etake the latter, made by one claiming pro])erty; and may use
Ihe Jiecessary force to retain possession of him. Il)id.
13. Where there is one continuing transaction, though there
r:i:iy be several distinct asportations in laAv, yet the party may
bvj indicted for the final carrying away, and all who concur are
guiitv, though they were not privy to the first or the interme-diate
acts. ''State V. Trexler, 2 Car. L. E. 90, (188.)
14. An indictment will lie against the commissioners of a town
ibr culpable omission and negligeni'e in keeping the streets in
repair; because they are invested witli power to levy taxes, one
•object of which is to keep the sti-eets in good ordei'. Slate v.
Commissioners of FayetteviUe. 2 Car. L. li. 617, (419.)
1"). A person, who contracts with the county to keep a bridge
ill repair, mav be indicted for a neglect to do so. Si'ite v.
CroiceU; N. C. Term R, 254, (083.)
IG; Where defendants are bound to keep the streets of an in-
<'()rporated town in order, and three or four streets are presented
on the same day, the defendants should be indicted but once for