Duncans in Wilkes Co. NC Court Records


Duncan research files of
Mary Ann (Duncan) Dobson
the Genealogy Bug

Last revised February 13, 2004


"Reports of cases at law argued and determined in the Supreme Court of North Carolina, December term 1845 to June term 1846, both inclusive" by James Iredell, Vol.VI; Vol.28, pgs.96 to 98 (California State Law Library, Sacramento, 1/2004)
      STATE vs. JAMES UNDERWOOD; Supreme Court of North Carolina; 28 N.C. 96; 6 Ired. Law 96; December, 1845, Decided.
      Appeal from the Superior Court of Law of Iredell County, at the Fall Term, 1845, his Honor Judge PEARSON presiding.
      The prisoner was indicted in Wilkes County, as principal, with one Duncan as accessary before the fact, for the murder of one Peden. Both of the accused joined in a motion to remove the trial, and it was removed to Iredell.
      In forming the Grand Jury at Iredell, at the term at which the trial took place, the Jurors were drawn by a boy of thirteen years of age.
      The Court allowed the prisoner, Underwood, a separate trial, and he offered as a witness, a person who was so drunk that he was incapable of understanding the obligation of an oath, or giving testimony. For that reason, the Court refused to allow him to be then examined, and informed the prisoner, that he might recall the witness, when he should become sober; the witness was in the mean while committed to jail. The prisoner thereupon examined several other witnesses, and closed his case without recalling the above mentioned witness, or requesting so to do.
      The prisoner was found guilty, and then moved for a new trial, upon two grounds. One, that he was deprived of the benefit of the witness, who was intoxicated: the other, that if the grand jury had been drawn by a boy of the proper age, it might have consisted of different persons, and, consequently, the petit jury by which the prisoner would have been tried, would have been different from that by which he was tried. The Court refused the motion, and also a motion in arrest of judgment, and passed sentence of death; from which, the prisoner appealed.
      (Opinion:) RUFFIN, C. J. The Court is of opinion, that no error appears in the record. As far as the first reason was addressed to the discretion of the Court, it was exclusively for the Judge who presided at the trial. Had he been made satisfied, that the prisoner was surprised by the state of his witness, or that his evidence was material, he would doubtless have suspended the trial until the witness should be in a proper condition to take an oath, or would have granted a new trial. This Court cannot grant a new trial, properly speaking, as for surprise, or because the verdict is contrary to the evidence, but can only grant a venire de novo for error in law upon the first trial. There is certainly no error in the Court, refusing to administer an oath to a person, tendered as a witness, who is so drunk as not to understand its obligation, and to postpone swearing him until he may become sober enough for that purpose.
      Upon the second point, it may be a question, whether the provisions of the statute, as to the mode of forming the grand jury, be not merely directory. But we do not think it necessary to consider that question on this occasion, because, allowing them not to be directory merely, and that the objection might have been sufficient, if taken in due time, the Court holds, that it came too late in this case. The matter does not appear in the record, in a legal sense, but was properly the subject of a challenge to the petit jury, as being illegally constituted, by reason of a collateral thing. The prisoner's objection goes to the formation of the petit jury, and should, therefore, have been taken as a challenge to the array. He did not choose to take it in that form, but elected to waive his privilege, and to be tried by the persons returned in the array; and he cannot, afterwards, take exception to it upon such collateral ground.
      We do not perceive any reason for arresting the judgment; and therefore it must be certified, that there is no error in the judgment, in order that it may be duly proceeded on.
      PER CURIAM. Ordered accordingly.

"Reports of cases at law argued and determined in the Supreme Court of North Carolina, December term 1845 to June term 1846, both inclusive" by James Iredell, Vol.VI; Vol.28, pgs.98 to 107 (California State Law Library, Sacramento, 1/2004)
      STATE vs. BENJAMIN DUNCAN; Supreme Court of North Carolina; 28 N.C. 98; 6 Ired. Law 98; December, 1845, Decided.
      Appeal from the Superior Court of Law of Iredell County, at the Fall Term, 1845, his Honor Judge PEARSON presiding.
      The prisoner was indicted in Wilkes Superior Court, as accessory before the fact, with one Underwood as principal, for the murder of one Peden. After a plea of not guilty by Underwood, the prisoner, Duncan, also pleaded not guilty, and they united in obtaining a removal of the trial to Iredell. When brought to the bar in Iredell, the two stated, that they were ready for trial; but they prayed to be tried separately, and it was allowed by the Court. Underwood was then put on his trial, and found guilty by the jury; and after his conviction, Duncan was put on his trial, and was also found guilty.
      At that term of the Court of Iredell, the grand jury was drawn by a boy above the age of ten years; and for that reason, the prisoner, after his conviction, moved for a venire de novo.
      After the conviction of Underwood, the prisoner, Duncan, moved that his trial should be removed to some other County, upon an affidavit, in which he stated, that several persons, named therein, had used great exertions to produce a prejudice against him in Iredell, and had succeeded in doing it, by certain means specified in the affidavit. The Court refused the motion.
      The prisoner then moved, on his affidavit, for a continuance, for the want of a witness, who had been summoned and was absent; whose absence, the prisoner, as he swore, did not know, when he said that he was ready for trial. The Court refused this motion also.
      On the trial of Duncan, the State offered, in evidence, the conviction of Underwood on the same indictment. It was objected to by the Counsel for the prisoner, because judgment had not then been given on the verdict; but it was admitted by the Court.
      The prisoner then controverted the propriety of the conviction of Underwood, and examined witnesses upon the point. The State then produced witnesses, who proved facts tending to establish Underwood's guilt, and that Duncan hired him to commit the murder. Among them was one, who swore, that about a month before Peden was killed, he heard Duncan say to Underwood, that he would kill Peden, or have him killed, for preventing him from obtaining a certificate of bankruptcy; and that Underwood replied, that he wished Peden was in hell, for he was breaking up all the poor people, and had denied a debt of $100 he owed him; and that Duncan then said to Underwood -- "I will give you $250 and my roan mare, if you will kill him." On cross-examination, the witness was asked if he had told all this, when he was examined before the magistrate who committed Underwood and Duncan; and he replied, that he had not, because he was afraid of Underwood, who had threatened him. The prisoner's Counsel then objected to his stating what Underwood said to him. But the Court allowed him to proceed; and he stated that, in the evening after Peden was killed, Underwood told him that he expected to be taken up for it, and he wished him, the witness, not to tell what he knew; and said that, if he did, he would kill him, for the jail was not sufficient to hold him, and when he got out he would kill him. For that reason, the witness said he did not tell the whole to the magistrate; but, when he was subsequently before the grand jury, which was after the prisoner had been confined in the jail several months, he told all he knew, as he then told it in Court.
      The prisoner's Counsel insisted before the jury, amongst other things, that if Underwood killed Peden, he did it of his own malice, which rebutted any presumption that he did it at the instigation of Duncan. As to that, the Court instructed the jury, that, although Underwood might have a grudge of his own against Peden, which might have rendered it easier to operate on him, yet, if they were satisfied that Duncan had hired, incited, and procured him to commit the murder, he, Duncan, was accessory before the fact.
      After the verdicts against both, the Court proceeded, first to pass sentence of death on Underwood, and then on Duncan. From the sentence against him, Underwood appealed to this Court, and at the present term the Court has adjudged that there was no error therein. Duncan, also, at the same time appealed from the judgment against him.
      (opinion) RUFFIN, C. J. The points, raised by the exceptions, appear to the Court to be all clearly against the prisoner, except that upon the admission of the conviction of Underwood before judgment.
      The objection, founded on the manner of drawing the Grand Jury, has been disposed of in the case of Underwood, who also insisted on that matter. It might have been a cause of challenge; but after having been waived and the petit jurors accepted by the prisoner, he cannot urge it as an error, for which he can claim a venire de novo.
      The refusals to remove the trial a second time, and to continue the case, are decisions in the discretion of the Superior Court upon the matter of fact, which, it has been often held, this Court cannot review. The Act of 1808, Rev. St. c. 31, s. 120, requires the affidavit to "set forth "the facts whereon the deponent founds the belief, that "justice cannot be obtained," and expressly states the reason therefor to be, "that the Judge may decide upon "such facts, whether the belief is well grounded."
      It was proper to allow the witness to state what Underwood told him, for two reasons. If, as the declarations of Underwood, they would not have been competent original evidence against the prisoner, yet the witness had a right to explain his reason for not giving the whole truth in evidence, upon the occasion to which the prisoner's counsel referred. The interrogatory was meant to draw out an answer to the discredit of the witness, by showing that he had committed perjury, and he had a right to palliate his conduct, as far as he could, by showing that he acted under a species of duress -- the fear of losing his life. Besides, it is now settled, that the accessory may controvert the propriety of the principal's conviction by the testimony of witnesses. Smith's case, 1 Leach. 288, and in this case the prisoner did so. That necessarily opened the case to evidence on the other side, of the principal's guilt; and to that point, any evidence must be admissible, which would be against the principal, were he on his trial.
      There cannot be a doubt, that, however much inclined Underwood might have been, of himself, to take Peden's life, any acts or words of Duncan, inciting the other to action, are sufficient to make him an accessory before the fact. Hawkins says, that one who, by showing an express liking or assent to another's felonious design of committing a felony, encourages him to commit it, is an accessory.
      But on the remaining point, which is, whether the conviction of Underwood was, before judgment thereon, evidence against Duncan, the Court differs in opinion from the learned Judge who presided at the trial. We have no statute upon this subject; and, at common law, an accessory cannot be indicted, as for a substantive felony, but only together with the principal, or after the conviction and attainder of the principal. They may be tried together. Mr. Justice Foster deems that, the most eligible course; and if it be so in England, it is yet more conducive here to a due execution of justice. When tried together, the guilt of the principal is established, as against him and the accessory, by evidence given to the jury. But even when tried by the same jury, the jury is charged to enquire first of the principal, and if they find him guilty, then to enquire of the accessory; and even in that case, judgment must be first given of the principal; for, says Lord HALE, if any thing obstruct judgment, as clergy, a pardon, &c. the accessory is to be discharged. The attainder of the principal is indispensable at common law, in all cases: where the trial of the two is by the same jury, it must precede judgment of the accessory; and where they are tried separately, whether they be indicted by one or several indictments, it must precede the conviction of the accessory. Hawkins, following Hale, lays it down as settled before the St. 1 Ann, that, wherever the attainder of the principal was prevented by his death, or standing mute, or being admitted to the benefit of clergy, or he was pardoned, whether before or after conviction, the accessory could not be arraigned; though, if the principal was actually attainted, whether on conviction or outlawry, his death or pardon subsequent, or any error in the record against the principal, would not avail the accessory. These authors are well warranted in the passages quoted, by the Resolution of the whole Court, given by Lord COKE, 4 Rep. 43: "That, if principal "and accessory are, and the principal pardoned, or "has his clergy, the accessory cannot be arraigned, for "the maxim of the law is--ubi factum nullum, ibi sortia "nulla; et ubi non est principalis, non potest esse accessorius. "Then, before it appears there is a principal, one "cannot be charged as accessory. But none can be called "principal, before he is so proved and adjudged by the "law, and that ought to be by judgment upon verdict or "confession, or by outlawry; for it is not sufficient that, "in rei veritate, there was a principal, unless it so appears "by judgment of the law; and that is the reason "that, when the principal is pardoned, or takes his clergy, "before judgment, the accessory shall never be arraigned; "for it doth not appear, by judgment of law, that he "is principal, and the acceptance of the pardon or praying "of the clergy, is an argument, but no judgment in "law, that he is guilty. But if the principal, after attainder, "is pardoned, or has his clergy, then the accessory "shall be arraigned, because it appears judicially "that he was principal." That such was the rule at common law, further appears from St. 1 Ann. ch. 9, sec. 1, which recites as a mischief, that as the law then was, no accessory could be convicted or suffer punishment, when the principal was not attainted, and, for remedy, it enacts, that if any principal shall be convicted of a felony, or stand mute, &c. it shall be lawful to proceed against an accessory in the same manner, as if such principal has been attainted, notwithstanding such principal should be pardoned, or otherwise delivered before attainder. The object in using the proceedings against the principal, is to excuse the prosecutor from producing to that jury substantive evidence of the guilt of the principal, because that has been duly established against the principal himself. Now, that cannot be said without the solemnity of a judgment against the principal, in any but two cases: the one, where the accessory, as he may do, consents to be tried before the principal; and the other, where they are tried together. But even in those cases, as we have seen, there can be no judgment of the accessory before there is judgment of the principal; which shews, that the accessory is entitled, unless he voluntarily renounce it, to the benefit of the principal's exertions in his own behalf throughout, and that the principal's guilt must be solemnly and conclusively established against himself, before the proceedings can be used in the next step against the accessory. Hence, where the trials are separate, the attainder of the principal must precede not only the sentence of the accessory, but his trial. Where there is an attainder of the principal, that is sufficient, though erroneous, as has been already mentioned; and hence it follows also, that, though they may be tried by one inquest, the rendering of judgment against the principal can be contested by the principal only, and the accessory cannot object to the sufficiency of the indictment against the principal or the like, but is conclusively bound by the judgment, though he may, as particeps in lite, make full defence with the principal before the jury. It is not, therefore, the joint indictment, which enables the State to offer the conviction of the principal, by itself, against the accessory, though it occurred to us, at one time, it might be, as it probably appeared likewise to his Honor upon the trial. Indeed, it expressly appears, by a subsequent passage in Lord Hale, 2 P. C. 222, that it is not the form of the indictment, but the mode of trial, which dispenses with the production of the attainder of the principal, on the trial of the accessory; for he says, that they, "being indicted by one or several indictments, "and both appearing, may be arraigned together at the "same time, and both pleading not guilty, the same jury "shall be charged with both, and directed to enquire of both, "viz. first of the principal, and if they find him guilty, then "to enquire of the accessory." It is true, the modern precedents of separate indictments against the accessory, charge only "the conviction in due course of law" of the principal. But that is well justified by the statute of Anne, which expressly authorizes the trial of the accessory upon the "conviction" of the principal, as it had been before upon his "attainder"; and upon that ground, the Courts have put it. Indeed, that might have been also the form of the indictment at common law; for whether the principal was "duly convicted," it might well be held, could only appear by judgment of the Court on the conviction. We have not taken the trouble to search the old precedents on the point, because the question here concerns the mode of proving, and not the form of charging the conviction: and it is very clear that at common law, the attainder of the principal was indispensable evidence on the separate trial of the accessory. It is true, that those rules of the common law have been often complained of, and they certainly have not unfrequently stopped the course of justice against great offenders -- for the contriver and instigator is generally the real principal in the guilt, though not in the legal felony. In England, it has been remedied by several statutes; as first, by the statute 1 Anne 2, already quoted, and then, following out Judge FOSTER'S idea of the defects of that statute, Fost. C. L. 363, it has been since provided by St. 7, Geo. 4, c. 64, for the more effectual prosecution of accessories before the fact, that an accessory may be indicted and convicted of a substantive felony, whether the principal shall or shall not have been previously convicted, or shall or shall not be amenable to justice; and that he may be prosecuted after the conviction of the principal, in the same manner as if the principal were attainted, notwithstanding the principal shall die, or be allowed clergy, or pardoned, or otherwise delivered before attainder, and be punished accordingly.
      Probably similar reforms may be found by the Legisture, to be necessary in our law, especially as peculiar provisions in it, such as the absolute right of appeal in capital cases, whereby the judgment is temporarily vacated, and others, greatly multiply the impediments to justice against accessories, by appeals of the principal. But the Courts cannot deny to them the benefit of the law, as it was anciently settled, until it shall be altered by the Legislature. More inconveniences may indeed, and probably will, induce the Judges who preside at trials, in their discretion to refuse separate trials, where the principal and accessory are both amenable, State v. Smith, 2 Ired. 402, as in some slight degree facilitating the trial and punishment of accessories. But we are obliged to hold, that when the accessory is not tried with the principal, judgment against the latter is indispensable evidence against the former. Therefore, the judgment against the prisoner, Duncan, must be reversed. It is true, that we now know that the conviction of the principal was a due conviction, as the judgment against him has been affirmed by ourselves; and, if this were addressed to our discretion, as on a motion for a new trial, we might refuse it, as not advancing the justice of the case. But the question is one of strict law -- whether there was error in admitting incompetent evidence upon the trial of the prisoner; and if there was an error committed in that respect, we are obliged to award a venire de novo.
      PER CURIAM. Ordered to be certified accordingly.

"Reports of cases at law argued and determined in the Supreme Court of North Carolina, December term 1845 to June term 1846, both inclusive" by James Iredell, Vol.VI; Vol.28, pgs.236 to 241 (California State Law Library, Sacramento, 1/2004)
      THE STATE vs. BENJAMIN DUNCAN; Supreme Court of North Carolina; 28 N.C. 236; 6 Ired. Law 236; June, 1846, Decided.
      Appeal from the Superior Court of Law of Davie County, at the Spring Term, 1846, his Honor Judge CALDWELL presiding.
      This was an indictment against the defendant for being an accessory before the fact to the murder of William W. Peden. On this indictment, the defendant was tried and convicted, and sentence of death being passed, he appealed to this Court. The following are the facts upon which the points presented to this Court arose:
      One Underwood was indicted in the Superior Court of Wilkes for the murder of one Peden, and the prisoner, Duncan, was charged in the same indictment as accessary to the fact. At their instance the trial was removed to Iredell; and, on separate trials there, they were convicted and sentenced to be hanged, and each appealed. At December term, 1845, it was decided by this Court that the judgment against Underwood was not erroneous, and ordered that the decision should be certified to the Superior Court of Iredell, to the intent that the said Court should proceed to judgment and sentence accordingly. At the same term the judgment against Duncan was held to be erroneous and reversed; and a venire de novo was awarded; and the usual certificate of that decision was also directed. Those cases may be found reported in 6 Iredell, 96 and 98. At the succeeding term of Iredell Court as stated in the record "the said James Underwood being brought to the bar, and being asked if he hath any thing to say, why sentence of death should not be pronounced upon him, and replying thereto that he hath not, the Court doth thereupon, in obedience to the judgment and mandate of the Supreme Court to the Court directed," &c. proceeding then in the usual form of a sentence of death. There was then a venire de novo awarded as to Duncan; and he obtained an order for the second removal of his trial to Davie. He was again convicted, and, after sentence thereon he appealed to this Court.
      On the trial, there was offered in evidence, on behalf of the State, a transcript of the record of the Court of Iredell in the case of Underwood, in order to shew his conviction and the judgment. It was objected to for the prisoner, because it did not appear therein, what decision the Supreme Court had made upon the appeal; and it was insisted, that it should appear in the record, or at least be made to appear by the order from the Supreme Court. On the part of the State the certificate from the Supreme Court to the Court of Iredell was then produced and read; and the Court then allowed the transcript from Iredell to be read also.
      On the part of the State it was proved, amongst other things, that the prisoner had threatened to kill Peden, or cause him to be killed. Thereupon the prisoner offered to prove, that it was his habit when in a passion, to use violent and threatening language towards others: which, being objected to on the part of the State, the Court refused.
      The prisoner offered further to prove, that certain other persons harbored ill-will against Peden and had threatened him; and also that certain others had been suspected and arrested upon a charge of having murdered him. This evidence was also rejected.
      (opinion) RUFFIN, C. J. The Court is of opinion, that the transcript from Iredell was proper evidence of the judgment on Underwood, as principal in the felony. It would have been right to set out in the record, as finally made up, the certificate from this Court as having been sent by the Clerk of this Court or brought in by the Solicitor. But to the purpose for which it was offered, we think the record sufficient, as it is. It is true, that, after an appeal to this Court, any subsequent proceedings in the Superior Court cannot be regarded by this Court, when the case is before us as between the parties directly affected by those proceedings, by the appeal of one of them. But as the subject matter in this case, namely, a charge of murder against Underwood, was within the jurisdiction of the Superior Court, the ultimate judgment of that Court, not reversed nor vacated by appeal, it would seem, could not be impeached collaterally by another person, upon the ground that it did not appear that the cause, after the appeal from the first judgment, had not been remitted, and so was coram non judice. But however that may be, the record here shews, informally it may be admitted, that the Court in passing sentence, professed to act in obedience to the decision of the Supreme Court on the appeal before taken by the prisoner, which the law directs shall be certified to the Superior Court, and thereupon requires the Superior Court to proceed to judgment and sentence agreeably to the decision of the Supreme Court and the laws of the State. We cannot understand less from this, than that a decision of the Supreme Court had been certified to the Superior Court, which made it the duty of the latter Court to proceed in the case in some manner, though it does not directly appear in what particular manner. The cause cannot therefore be deemed to be coram non judice; but, at worst, it is erroneous merely, to pass sentence of death without setting out at large the decision of the Supreme Court, as the authority for the judgment. If, however, it be admitted to be erroneous in that point, yet it will not avail this prisoner; for it seems to have been long agreed, that the accessory cannot take advantage of error in the record against the principal, and that the attainder of the principal, while unreversed, is prima facie evidence against the accessary of the principal's guilt.
      The other points of evidence were, in our opinion, properly decided also. The evidence of the violence of the prisoner's passions and language, would rather operate against than for him, as shewing a malignity of heart. At best, it was irrelevant, and could profit the prisoner nothing.
      The threats of other persons against Peden, or admissions by them that they had killed him, were but hearsay; and, moreover, could not tend to establish, that Underwood and Duncan were not also guilty as charged. State v. May, 4 Dev. 328. Of the same character are the suspicions entertained by some people, that other persons had committed or been concerned in the murder. Those matters were certainly consistent with the guilt of those parties, and could therefore serve no purpose but to mislead the jury.
      There was then a motion in arrest of judgment. One ground was, that the transcript from Iredell (on which the trial was had in Davie,) did not shew the seal of the Court of Wilkes affixed to that part of it, which purported to set forth the transcript brought into the Court of Iredell from the Court of Wilkes. But it is manifest that the statement of the transcript from Wilkes, in the record of Iredell, as enrolled in Iredell, purports to be but a copy, and therefore could not have the impression of the seal of Wilkes. To the Judge of the Court in Iredell, it belonged to determine, as a matter of fact, whether the transcript purporting to come from Wilkes, was verified by the seal of that Court, and really came from it. Having been received as a transcript from Wilkes, and enrolled as such in making up the record in Iredell, it was conclusive in the Court of Davie, that the transcript, which purported to come from the Court of Wilkes, actually came from it.
      Another ground is, that the indictment does not lay the offence vi et armis. In point of fact, that part of the indictment, which charges the assault and killing by Underwood, lays them vi et armis; but in charging Duncan as accessary in the conclusion of the Court, it finds that he "feloniously, wickedly, wilfully, and of his malice aforethought, did incite, move, procure, aid, counsel, hire and command the said James Underwood," &c., omitting "force and arms." And this, we think, is sufficient. It is agreeable to the nature of the offence charged on the prisoner; which is not a crime of which force is a constituent, but merely that of inducing another person to commit such a crime. However it might be at common law or in England, under the statute of Hen. 8, our Act, Rev. St. c. 35, s. 12, must be deemed to dispense with those terms. As was said in the State v. Moses, 2 Dev. 452, the Legislature meant that it should be sufficient for the indictment directly to aver the facts and circumstances, which constitute the crime, and that is done here in the words, that the prisoner "feloniously procured, hired," &c. Underwood to kill and murder Peden. In the case just cited, it was considered, that vi et armis et baculis were but words of form, now rendered superfluous; and in reference to an indictment against an accessary they are plainly so, inasmuch as his offence tends only to a breach of the peace, and is not, of itself, an actual breach of it.
      There is, therefore, no error in the record; and this must be certified accordingly.
      PER CURIAM. Ordered to be certified accordingly.

"Reports of cases at law argued and determined in the Supreme Court of North Carolina, from December term, 1858, to August term, 1859, both inclusive" by Hamilton C. Jones, Vol.VI (spine title "No. Carolina Reports [Vol.] 51 - Jones' Law Vol.6); Vol.51, pgs.569 to 571 (California State Law Library, Sacramento, 1/2004)
      JAMES CALLOWAY, Adm'r., v. NANCY BRYAN; Supreme Court of North Carolina, Morganton; 51 N.C. 569; 6 Jones Law 569; August, 1859, Decided.
      Action of Replevin for a slave, tried before MANLY, J., at the Fall Term, 1858, of Wilkes Superior Court. The following facts were agreed on, and submitted for the decision of the Court.
      In 1831, the defendant intermarried with one Chapman Duncan, and lived and cohabited with him until 1835, when a petition was filed by him against her, and a divorce a vinculo matrimonii obtained, and the marriage declared null and void, she being the offending party. In 1842, the said Chapman being, then, and still living, the rites of matrimony were solemnised between the defendant and the plaintiff's intestate, John J. Bryan, and they continued to live together as man and wife, and were regarded as such by the community in which they lived, and particularly by Delphia Bryan, the mother of the plaintiff's intestate, until his death in January, 1857. J. J. Bryan and the defendant lived near Mrs. Delphia Bryan, and they cultivated her land and superintended her business. On the 20th of January, 1854, Mrs. Delphia Bryan made the following deed of gift: "I, Delphia Bryan, of the county of Wilkes, and State of North Carolina, for and in consideration of the love and respect I have for my daughter-in-law, Nancy Bryan, and for services rendered me and my family, have this day given to the said Nancy and her bodily heir, or heirs, a certain negro boy, named York, aged about three years; the said boy to descend to her heirs after the death of said Nancy and my son, John J. Bryan. And I hereby constitute and appoint my son, Larkin Bryan, the trustee, to see this deed of gift carried into effect. This 20th of June, 1854. Signed, DELPHIA BRYAN, [seal.] Test, B. P. MARTIN." And the same was duly proved and registered. J. J. Bryan and Nancy Bryan took possession of York, and held him under the above deed, until the death of the former.
      The plaintiff, James Calloway, became the administrator of John J. Bryan, at February County Court of Wilkes, and shortly thereafter demanded the possession of the said slave from the defendant, and upon refusal, brought this suit. The question was submitted with an agreement, that in case the Court should be of opinion with her, a judgment should be rendered for a certain amount of damages in favor of the defendant, (the slave having been taken out of her possession and delivered to the plaintiff,) but to be discharged by the delivery of the slave to her; or in case the opinion of the Court should be in favor of the plaintiff, then a judgment should be rendered against the defendant for a penny and the costs.
      His Honor gave judgment for the defendant, from which the plaintiff appealed.
      (opinion) RUFFIN, J. The point presented in this case is precisely the first that was ruled in Williams v. Oates, 5 Ire. 535. It was discussed very fully for plaintiff, and the Court has, therefore, carefully reconsidered it; but without any change of opinion. The statute expressly makes it a felony for the offending party to marry after a divorce, and a felony constituted by a second marriage, "his or her former wife or husband being alive." So that, the inference is irresistible, that the first marriage is continued, after a divorce, as an impediment to another marriage by that party. In other words, the decree for the divorce does not, and cannot, confer a capacity on the party, in fault, to contract a second marriage. The policy of the provision is obvious, being to shut out all temptation to a married person, who is not satisfied with an existing marriage, and wishes to form another, to offend, so as to bring about a divorce on that account, and thus put it in his or her power to effect the purpose, he or she had in view. It may work a hardship in a particular case, and even expose such a party to the danger of committing adultery; but that particular evil is of no signification, when compared with the general mischief of allowing all persons, by acts of impurity of their own, to free themselves from the ties of marriage, and acquire the capacity of forming a connection more agreeable. Such a license would sap the foundations of the most important domestic relation, on which the harmony, respectability and welfare of families, and the public virtue mainly depend. The Court, therefore, unanimously affirms the reasoning and resolution of Williams v. Oates, and holds that this marriage was void, and that no civil rights accrued to either party under it.
      A distinction was taken between that case and this, that there, the woman, whose second marriage was illegal, claimed to affirm it, and gain rights of property under it; whereas, here, the wife is the one to disaffirm her second marriage. But the distinction makes no difference, because that which is void in law, concludes no one. Accordingly, it was held in Irby v. Wilson, 1 Dev. and Bat. Eq. 568, upon a bill by the husband's next of kin against his administrator, and supposed widow, that the defendants might set up the nullity of the marriage as a bar to any share of property, alleged to have belonged to the wife at the marriage, and to have vested in the husband, upon his marriage with a woman, whose first husband was still living. And in Gathings v. Williams, 5 Ire. 489, the general doctrine is laid down, that a marriage, during the subsistence of a prior marriage, is absolutely void, and that no civil rights of any kind arise out it.
      PER CURIAM, Judgment affirmed.

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