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McCubbins v. Barringer.

jurisdiction, and that thereupon the County Court did right in giving a judgment against the plaintiff. The case of Branch v. Houston, ubi supra, is a direct authority to show that the Superior Court did not acquire any other jurisdiction of the cause by the appeal, than what was necessary to enable it to decide whether the judgment of the County Court was erroneous or not,

The judgment of the Superior Court must be reversed, and a judgment be given here that the writ be quashed.

PER CURIAM.

Judgment reversed.

THE STATE ex rel. JAMES S. McCUBBINS v. DAVID BARRIN

GER et al.

The acts and the ordinance which have taken away from the County Courts jurisdiction over contracts entered into before May 1865, are not on that account unconstitutional.

The order of Gen. Sickles, No. 10, does not restore that jurisdiction as regards minors suing upon guardian bonds, &c.

(Thompson v. Floyd, 2 Jon. 14: Berry v. Harris, 2 Repos. 428; Israel v. Ivey, ante 551, cited and approved.)

DEBT, upon a guardian bond, quashed upon a plea to the jurisdiction, before Gilliam J., at Fall Term 1867 of the Superior Court of ROWAN.

On the 22d of April 1867 the plaintiff as guardian of certain infants, procured to be issued from the County Court a writ upon the bond of a former guardian, executed before 1861. Upon the writ being executed and returned, the de

McCubbins v. Barringer.

fendants filed a plea to the jurisdiction, and the plaintiffs demurred thereto. In the County Court the demurrer was sustained, but upon appeal that judgment was reversed in the Superior Court, and the writ quashed. Thereupon the plaintiff appealed to this court.

Blackmer & McCorkle, for the appellant.
Boyden & Bailey, contra.

- BATTLE J. We have decided at the present term in the case of Israel v. Ivey, that the Courts of Pleas and Quarter Sessions had no jurisdiction of actions founded upon contracts entered into prior to the first day of May 1865, because it had been taken away and vested exclusively in the Supreme Courts by the acts of the Legislature at second extra session of 1861, c. 10, and special session of 1867, c. 17, s. 1, as well as by an ordinance of the convention of 1865, (session in 1866, c. 3.) It is true that the counsel in that case did not raise the question whether such legislation was a violation of that clause of the constitution of the United States which prohibits any State from passing a "law impairing the obligations of contracts." Had such an objection been made to the validity of the statute or ordinance, we should have decided that the objection could not be sustained. The jurisdiction of the County Courts was conferred by the Legislature, and that body has always claimed, without question until recently, the power to regulate it in any manner which it was thought the good of the State required. Acts to take from the County Courts of certain Counties the power to try causes in which the interposition of a jury may be necessary, have been passed from time to time for at least half a century, and the authority of the Legislature to pass such acts, so far from being denied, has been expressly sanctioned. by judicial de

McCubbins v. Barringer.

cision. See Thompson v. Floyd, 2 Jon. 313. If then the Legislature had the power to take away a part of the jurisdiction of one or more of the County Courts of the State. it unquestionably had the power to take it away from all; and nothing but the connection of such legislative action with what is called the "Stay Law" would ever have induced any body to doubt it. It may be that other provisions of the "stay law are unconstitutional (as to which we shall not express any opinion until the question is brought before us,) but it is well settled that one section or clause of a statute may be unconstitutional, while the remaining are not at all liable to that objection. Berry v. Harris, 2 Car. Law Repos. 428.

Having disposed of the constitutional objection, it remains for us to consider the one raised on the sixteenth section of Gen. Sickles' Order No. 10. The part of that order which applies to the case before us is in the following words: "Nor shall this order or any law of the provisional governments of North or South Carolina operate to deny to minor children, or children coming of age, or their legal representative, nor to suspend as to them, any right to action, remedy or proceeding, against executors, administrators, trustees, guardians, masters or clerks of Equity Courts, or other officers or persons holding a fiduciary relation to the parties or the subject matter of the action or proceeding." This order was issued the 11th of April, 1867, and the counsel for the plaintiff contends that its effect is to restore to the County Courts the jurisdiction which they had in relation to suits upon guardian bonds before the adoption of the act and ordinance to which we have heretofore referred. We are clearly of opinion that such a construction of the order is inadmissible. It is unnecessary and therefore it would be improper for us to decide any question in relation to that order except the one whether it is applicable to the present.

McCubbins v. Barringer.

case. At the time when it was put forth, the Superior Courts of law had, and the County Courts had not, jurisdiction of suits upon all bonds given by guardians prior to the first day of May 1865. Full operation and effect may be given to the order by applying it to the Superior Courts, and preventing them from interposing any delay in the prosecution of such suits, without attributing to it the extraordinary efficacy of creating and conferring a jurisdiction upon courts which then had none over the subject matter; this extraordinary efficacy to be ascribed too although it is manifest that it cannot accomplish the purpose which it is said the order had in view, that is, prevent delay! Now it is certain that this cannot be done, unless we attribute to the order the further effect of taking away from the defendants in the suits the right of appealing from the judgment of the County Court to the Superior Court. No person contends for this, and yet without it the construction insisted upon by the plaintiff's counsel would amount to nothing in the way of a practical benefit to minor children or those coming of age, who wish to sue their guardians upon their bonds.

Our conclusion is that the judgment of the Superior Court must be affirmed, and that this must be certified, to the end that the demurrer to the plea be overruled, the plea sustained and the writ quashed.

PER CURIAM.

Judgment affirmed.

State v. Buckner.

STATE v. J. A. BUCKNER, ROBERT BUCKNER and MORGAN BUCKNER.

In an indictment for Forcible Trespass it is sufficient to charge, that the defendant entered the premises with a strong hand the prosecutor being then and there present.

Where the land on both sides of a road, whether public or private, belongs to the prosecutor, he is the owner of the soil over which the road runs; and persons who stop upon such road, and use violent and menacing language to him, are guilty of Forcible Trespass.

The only privilege which the public have in a public road is that of passing over it, and those who abuse that privilege become trespassers ab initio, and create a nuisance.

FORCIBLE TRESPASS, tried before Buxton J., at Fall Term 1867 of the Superior Court of BUNCOMBE.

The indictment charged that the defendants "with force. and arms in and upon a certain piece of land of A. G. Anderson, (the prosecutor) situate in said county, unlawfully, violently, forcibly, injuriously, and with a strong hand did enter, the said A. G. Anderson being then and there present upon the said land" &c., "to the great damage of the said A. G. Anderson and against the peace and dignity of the State." Upon the trial it appeared that the defendants had entered a lane which ran in front of the prosecutor's house, and had gone to a gate which opened into his yard at a distance of some forty feet from the front of the house, and there called to him in abusive and threatening language, ordering him to come out, to leave the country, &c. During this time Anderson was in the (front) porch of his house; one of the defendants had in his hand a rock, another a stick and cowhide, and the third had a pistol.

Under the instructions of the court the jury returned a verdict for the State; and, motions for a new trial and in ar

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