LIMITATIONS AND NON-CLAIM. 1. A promise by an executor, though not in writing, takes the case out of the statute of limitations. Greening, ex'r, v. Brown, A. R. 353. 2. The act of 1820, enlarging the time for prosecuting a writ of errordoes not extend to judgments rendered before its enactment. Davis v. Pender, A. R. 57. S. An action for the forfeiture, in failing to keep a cotton gin inclosed, is barred, if not instituted within the year. Johnson v. Hughes, 1 S. 263. 4. When the statute of limitations begins to run, it continues notwithstanding an intervening disability to sue. But if the time limited, has not elapsed, at the death of one having the right of action, his executor or administrator may sue within twelve months from his death, Grice v. Jones, adm. 1 S. 254. 5. When the statute commences running, the death of neither party impedes its operation-But it does not commence, until some one is entitled to sue or be sued. Therefore, in trover, the statute does not commence against an administrator till an administration is granted, when defendant acquired the property after death of intestate. Johnson, adm. v. Wren, 3 S. 172. 6. Whether statute of limitations, when pleaded by an executor or administrator will not be received more favorably than in ordinary cases? Acre v. Ross, adm. 3 S 288. 7. Statute of limitations generally, does not operate on a contract, until the party is within the jurisdiction of the court where sued-and when the maker of a note resided in North Carolina at the time of its execution, and had not resided in Alabama, six years before the issuance of the writ-the statue did not operate as a bar. Towns, ex'r. v. Bardwell, 1 S. & P. 36. 8. It would not be so if the statute had perfected a bar before the parties removed from the jurisdiction where the contract was entered into―semble. Ibid 9. In replying to a plea of statute limitations, a former suit-the suit must be set out particularly, so as to apprize the defendant of what he will have Torbert v. Wilson, 1 S. & P. 200. to answer. 10. It is no answer to a plea of statute of limitations, that an action had been commenced in another county against defendant, which has not been disposed of; and in order to render such fact available against the plea of the statute, it must appear that the former had been disposed of before the last was instituted-or, that the writ relied on was issued in the same suit. Ibid. 11. Under a general replication to the statute of limitations, A may give in evidence a subsequent promise, within the time limited. Ibid. 12. Negro stealing not included in the statute, limiting the prosecution of certain offences to one year. State v. Prince, 3 S. & P. 253. 13. Judgments are included in the statute of non-claim, and must be presented to the representative within eighteen months prescribed. Ready, adm. v. Thompson, adm. 4 S. & P. 52. 14. When a party relies on an indorsed payment on a note, to stop the statute, such payment must be proved to have been made at the time it bears date. Watson v. Dale, 1 P. 247. 15. The replication to a plea of the statute, of a subsequent credit or payment-should set out the payment credited, so as to render it available as evidence of a subsequent promise. Ibid. 16. Suing out previous writ is not sufficient evidence of presentation to an administrator to take the case out of the statute of non-claim, of eighteen months. Bigger, adm. v. Hutchins & Smith, 2 P. 445. 17. If the claim originated out of the State, so as to be within the exceptions of the statute-this must be specially replied to a plea of non-claim. Ibid. 18. Presentment of a claim to one of two representatives, is notice to both. Acre v. Ross. udm. 3 S. 288. 19. The revival of a suit against administrators which had been commenced against the intestate, and the prosecution of the same until it is abated by an order of the court on the part of defendant, shewing the insolvency of the estate-is sufficient to take the demand out of the statute of non-claim. Garrow v. Carpenter & Hanrick, 1 P. 359. Į 20. The effect of the act 1806, which prohibits any action being brought against an executor or administrator, within six months from the time of proving the will or granting letters of administration, suspends for that time the statute of limitations. Hutchinson, ex'r. v. Tolls, 2 P. 44. Houpt, adm. v. Shields, 3 P. 248. J 21. When on an action, brought against an executor, to recover debt due by the testator, a replication to a plea, of the statute of limitations, only alledged that letters testamentary were not granted to the executor until more than two years after his testator's decease. Held, that this replication was bad-because, only averring that letters testamentary were not granted for so long a period, left the legal presumption uncontradicted that letters of one kind or another had been previously issued. Ibid. 22. When it appeared that a demand against an estate had not been presented within 18 months after the grant of letters testamentary, but that the demand had occurred after that period—it was held that it was not barred by the statute of non-claim-as that statute does not commence running until the claim has accrued or the party has a right to sue. Neel y. Cunningham's ex'rs, 2 P. 171. 23. Though the account of the plaintiff exhibits no charge against a defendant within six years-yet an item in defendant's account within that period, takes the case out of the statute of limitations of six years. Marrs, ex'r. v. Southwick, Cameron & Warren, 2 P. 351. 24. The tenth section of statute 1802, "for the limitation of actions, &c." does not apply to a case where a plaintiff seeks to recover the amount of a promissory note, which as defendant, to a previous chancery cause between the same parties, he had relied on as an offset, but which had been disallowed and a decree rendered against him. Cummins v. Colgin, 3 P. 393, & 1 P. 148. 25. In such case it was held, that notwithstanding the decree professed not to prejudice the right of action on the note, yet it could not restrain the right of the party to the plea of the statute of limitations. Ibid. 26. In actions ex contractu, any expression which amounts to an admission that a debt is due or that a liability exists, will take a case out of the statute of limitations, and revive the original cause of action. St. John v. Garrow, 4 P. 223. 27. Such admission has the same effect whether made to a creditor or a stranger-and, whether before or after the bar created by the statute; and is proper evidence under a general replication, to a plea of the statute of limitations. Ibid. 28. In actions against executor and administrator—the statute of nonclaim of eighteen months, is a complete bar-and semble a creditor or any other person interested in the distribution, has an equal right with the executor or administrator to insist on a plea to that effect. Mc Broom et al. v. Governor, 6 P. 32. 29. A payment made on a note, is equivalent to an admission, that at the time of the payment the debt was due, but the party relying on such payment must prove its dute, or else it would be allowing him to make evidence for himself McGehee v. Greer, 7.P. 537. Watson v. Dale, 1 P. 247. 30. It is a well established rule that payment of part of a debt removes the bar of the statute of limitations, so as to prevent the statute from running previous to such payment. McGehee v. Greer, 7 P. 537. 31. When defendants are sued jointly, and when the plea and replication are joint, a discontinuance as to one of the defendants may be entered and a verdict against the other joint defendant will be supported. Ibid. 32. Suing out a previous writ is not sufficient evidence of presentation to an administrator, under the statute requiring claims to be presented to executors and administrators. Bigger, adm. v. Hutchings & Smith, adms. 2 S. 445. 33. If the demand originated out of the State, so as to be within the exceptions of the statute, that matter must be specially replied to, in a plea of non-claim. Ibid. 34. In an action against an administrator, on a claim against the estate of his intestate, the period elapsing between the time of granting letters, and the expiration of the six months, during which he may not be sued, are not to be embraced within the time relied on, to sustain a plea of the statute of limitations. Houpt v. Administrators of Shields, 3 P. 247. See Executors and Administrators—Criminal Law—Errors & Appeals. MANDAMUS. 1. Mandamus will not lie in behalf of one claiming the office of judge of the county court, when another holds the commission, and is in the exercise of its duties. State ex rel. Mead v. Dunn, A. R. 46. 2. Mandamus granted by the supreme court to restrain circuit court from taking jurisdiction of a case which had been by an improper charge of venire carried to it, and ordering the case to be tried by the court which originally had jurisdiction. Hitchcock v. Innerarity, 3 S. & P. 9. 3. The circuit court being a court of general common law jurisdiction has authority to grant writs of mandamus. Nichols v. Comptroller 4 S. & P. 155. 4. A mandamus lies to the comptroller of public accounts to compel the issuance of a warrant on the treasury, when the right to such warrant is clear and authorized by law, and no other remedy is provided. Ibid. 5. A peremptory mandamus will not be awarded, directing an inferior court to grant a right under a statute to which the party applying has not entitled himself:—thus, when one applied for a license to a ferry under 17th section, statute 1821, and the petition shewed that he was not the owner of the soil on both sides of the river, and that a ferry had already been established by a proper tribunal, the supreme court would not reverse a judgment of the circuit court refusing a mandamus. State ex rel. Driver v. Com. of Roads & Revenue, Talladega, 3 P. 412. 6. Mandamus lies from the circuit to the county court, to compel it to perform all the acts necessary to render the appellate jurisdiction of the former effectual, as when the county court refuses to sign a bill of exceptions. Etheridge v. Hall, 7 P. 47. 7. The general rule that a mandamus will not be allowed when the party has another remedy, must be understood to refer to some specific remedy, which will place the party in statu quo. Ibid. 8. The final decree of the circuit court upon the petition for a mandamus to compel a judge of the county court to seal a bill of exceptions, may well be reviewed in the supreme court upon a writ of error. Ibid. 9. Where a justice has omitted to perfect a record, the correct practice is to move for a rule on him, to make certain amendments shewn to be material, and if he fail then to show cause, or if the cause shewn be insufficient, a mandamus should be awarded. Perryman v. Burgster, 6 P. 99. MASTER AND SLAVE. 1. Hiring for the year, the wages of the whole year will become due, although the slave by accident becomes disabled from work, without special agreement to the contrary. Outlaw & McLennan v. Cook, A. R. 257. Perry v. Hewlett et al. 5 P. 319. 2. Owner of a hired slave not bound to pay for services of a physician, employed during the hiring, and without his assent. Meeker v. Childress, A. R. 109. 3. Master cannot maintain an action for killing his slave, if the slayer by his collusion has been discharged from prosecution for felony. Morgan v. Rhodes, 1 S. 70. 4. The master of a slave is not liable for injuries caused by the negligent conduct of such slave while not acting in his masters employment or under his authority. Cawthorn v. Deas, 2 P. 276. 5. Slave may be punished for manslaughter by whipping and branding. State v. Peter, 1 S. 38. 6. The possession of a slave of lost property found by him, is the possession of the master, and the master may sue for it. T. & W. Brandon v. P. & M. B'k, Huntsville, 1 P. 320. 7. In trespass for killing slave it is necessary to aver that the party killing has been tried for the felony. It is no defence in such an action that the slayer was a constable who had a warrant to arrest the slave for a misdemeanor, and that the slave fled from him. Middleton v. Holmes, 3 P. 424. 8. Indictment against slave for capital offence, some part of the proceedings must contain the name of the owner, and such ownership is an essential matter necessary to be proved and found by the jury. Flora, a slave v. State, 4 P. 111. 9. The statute of 1809, respecting "runaway slaves committed to jail," which requires publication of the commitment of a slave in some newspaper, would seem to require the publication of the notice as often as the paper selected is published until the expiration of the six months, and the proof of this publication rests upon the party claiming title to the slave under the Turner, pro ami v. Thrower, 5 P. 43. 10. The notice of sale of fugitive slave under the statute should be given for thirty days after the expiration of the six months from the first publication of the commitment. sheriff's sale. Ibid. 11. And it is not sufficient that this notice of sale should be given through a newspaper. It should, as required by the act, be made uniformly by publication in a newspaper at the court house of the proper county, and at two other public places within the county. 1 bid. 12. Every act required of the sheriff in making sale of a fugitive slave under this statute, is a constituent part of the title vested in the purchaser; and to render such title valid, proof of each requirement must be made by the party setting up the title under the sheriff sale. Ibid. 13. The effect of the proviso of this statute upon sales under it, is confined to sales when the requisitions of the act have been complied with. Ibid. 14. The covenant of the hirer of a slave to return him to the owner at the expiration of the term, is discharged by the death of the slave, but he is bound to pay the wages for the time. Perry v. Hewlett et al. 5 P. 318. |