State v. Johnson.

for the preference given to a debt of record, except that the latter is in such a state as to be in itself notice of its existence to the executor. Both creditors have been diligent in prosecuting their demands to judgment, before the only tribunals having jurisdiction, and therefore each is ertitled to the like favour; and each debt is established beyond controversy. Then, by giving actual notice, the creditor by a judgment out of Court supplies all that is wanting to put his demand on the footing of a judgment in Court, as respects its relative dignity with that of bonds. It is true, that a Justice's judgment does not absolutely prove itself, but to some purposes requires evidence that it is genuine. Yet to others it may be acted on without such evidence, as when one Justice issues an execution on a judgment given by another.

The dormancy of a judgment does not at all affect its dignity, in the administration of assets; for, in every case, no proceedings can be taken on a judgment, until the executor has been made a party by scire facias, or a judgment has been taken on it in an action against the executor.

Upon the whole, the Court concurs fully with his Honor, and affirms the judgment.

PER CURIAM.

Judgment affirmed.

STATE vs. ANTHONY, A SLAVE.

On the trial of an indictment against a slave for a capital offence, it is good cause of challenge on the part of the State to one called as a juror, that he is nearly related to the owner of the slave, as it would be on the part of the prisoner that a juror was a near relative of the prosecutor. An indictment for high-way robbery may charge either that the robbery was committed in the high-way or that it was committed near the high-way.

Appeal from the Superior Court of Law of Northampton County, at the Spring Term, 1847, his Honor Judge BAILEY presiding.

The prisoner is a slave of Kinchen Powell, and was indicted with a free woman, for robbing Joseph Britt, in the public high-way, of one dollar and other things. When forming a jury for the separate trial of the prisoner, three of the persons drawn and tendered were challenged by the Attorney General, because they were related to the owner of the prisoner; and, that appearing, the challenges were allowed, notwithstanding an objection by the prisoner's counsel. Afterwards a jury was formed before the prisoner exhausted his number of peremptory challenges, and he was convicted. His counsel moved for a venire de novo, for error in allowing those challenges, which was refused. He then moved in arrest of judgment, because the indictment did not conclude contra formam statuti, which was also refused; and then sentence of death was passed, and he appealed to this Court.

Attorney General, for the State.
Bragg, for the defendant.

RUFFIN, C.J. The Court is opinion, that the challenges were properly allowed. It is true, the statutes which give slaves the trial by jury in capital cases, do not specify the qualifications of the jurors, farther than that

State Authony.

they shall be owners of slaves; but only require that they shall be good and lawful men, and prescribe that the trial shall be conducted under the same rules, regulations and restrictions, as trials of free-men for a like offence. Rev. Stat. c. 111, s. 43, 45, 46. Yet the latter provisions are sufficiently comprehensive to entitle the slave to all those privileges, which are intended to secure to an accused person a jury, indifferent between him and the State. It is clear the prosecutor, or one nearly related to him, would not be a good juror, if challenged for that cause by the prisoner. The application of the principle, on which that rule stands, and on which the common law proceeds in forming juries in all cases, necessarily excludes the owner of the slave, or his son, and, by consequence, any other relation from sitting on the trial. The concern in interest or feeling of those persons in the result is inconsistent with that indifferency, which the law seeks. If this slave were the subject of a civil action between his owner and another, neither of those persons could have been of the jury, on the score of their favor for their kinsman. The same state of feeling prevents them from being held impartial on this trial. They are not "good and lawful men," in the sense of the statute. This is clear from the second proviso in the Act of 1793, c. 381, s. 7, being the first that gave the trial by jury to slaves in the County Court, which required, that the three justices and jury of slave-holders, who constituted the called Court, should "not be connected with the owner of such slave, or the prosecutor, either by affinity or consanguinity."

The counsel for the prisoner in this Court abandoned the objection taken in the Superior Court in arrest of judgment, that the indictment concluded at common law; and very properly, as the statute did not create the offence, but only ousted clergy. But he took another, namely, that the indictment was bad, because it did not pursue the words of the Act and lay the robbery to have

State v. Anthony.

been "in or near" the highway. It appears that it was once usual to frame indictments in that way at Newgate, as Lord HALE informs us. 1 Hale P. C. 535. But he certainly does not deem it necessary, nor, as is plain, strictly proper; for he admits it violates the rule, which requires certainty in indictments and rather apologizes for it, as tolerated upon usage. The passage in which he cites a case from Trin. 38, Hen. 8, of an indictment of robbery in quadam via regia pedestri, being held bad, which was urged on us as an authority, that it should have been in vel prope, does not turn upon the omission of the words, "vel prope," but that of altam, because, as he says, "it is not sufficient to say only via regia, or via regia pedestri, since the statute is touching a robbery on the King's Highway. Moreover, there are many precedents of indictments not in the disjunctive, but laying the offence positively in the highway, and others laying it near the highway. The King v. Stone, 1 Tremaine 288, is an instance of the former, and that precedent is adopted by Dogherty, Cr. Cir. Com. 682; while Fowler's case, which is stated by Mr. East, Pl. C. 785, is an instance of the latter. The more recent precedents in England do not aid us, as it not necessary now to state any place, because the statute 3 W. and M. took away clergy from all robberies. But the older ones, and the reason of the thing, make it plain, that an indictment, if good when it is in vel prope altam viam, is certainly so when it is in one count, in the highway, and in another near it.

PER CURIAM.

Ordered to be certified accordingly.

DEN EX DEMISE OF WILLIAM WYNNE vs. NATHAN ALEX

ANDER.

When nothing but course and distance is called for in a deed, parol evidence is not admissible, to shew that a line of marked trees not called for in the deed is the true boundary.

When one corner is established and the course and distance only given, and the next corner called for in the deed is also established, the line must run directly from the one corner to the other, although there may be a line of marked trees between the corners, but varying in some places from the direct line.

Nor is it sufficient to make an exception to this rule, that the trees were marked as the line by the parties, at the time when the deed was executed from one to the other.

The case of Hough v. Horn, 4 Dev. & Bat. 228, cited and approved.

Appeal from the Superior Court of Law, of Tyrrell County, at the Spring Term, 1847, his Honor Judge CALDWELL presiding.

The facts, upon which the points of law in this case arose, are stated in the opinion of the Court.

Heath, for the plaintiff.

No counsel for the defendaut.

DANIEL, J. Tarkington (under whom both parties claimed) conveyed to Armstrong; and described the land in the deed by calling for course and distance. There is no line of marked trees called for in the deed with the course and distance. The Court permitted parol evidence to be offered by the defendant, to prove that a marked line of trees, not called for or mentioned in the deed, was the true boundary of the land conveyed, although varying from the written calls of course and distance, (the only calls mentioned in the deed.) This was not correct. Course and distance mentioned in deeds must be observed, except when natural boundaries are called for and shown, or where marked lines and corners can be proved, which were made at the original survey for