Volume 101 — North Carolina Reports

In this case an execution was issued from this Court, directed and delivered to the Sheriff of the County of Hertford, made returnable to the October Term of 1886 thereof. The Sheriff failed to note thereon the date of its delivery to him as required by the statute.

This is a civil ACTION which was tried - before Montgomery, /., at Spring Term, 1888, of Gates Superior Court. William H. Lee, under whom the parties to the action claim, on September 12th, 1867, by deed, and for the recited consideration of sixteen hundred dollars, conveyed the tract of land described in the complaint to Mills H. Eure,' who, on May 8, 1880, for the alleged consideration of twenty-fiv.e hundred dollars,-in the like manner conveyed, to Benjamin Saunders.

This is an application to condemn land for drainage, heard upon exceptions to commissioners’ report, by Montgomery, J., at Spring Term, 1888, of Pasquotank Superior Court. The plaintiff, a corporation formed and operating under a law of this State, has acquired a right of way and constructed a portion of its railway upon and over a parcel of low land belonging to the defendant, and known as the Great Park Estate, in the County of Pasquotank.

This is a civil action brought in the Superior Court of Gates County by the distributees and devisees of James Sears, against his administrator de bonis non cum testamento annexo for an account and settlement of the estate. At Spring Term, 1887, the cause was referred for an account, and was heard upon exceptions to the referee’s report by Montgomery, J., at Spring Term, 1888. The following are the facts agreed upon, and upon which the referee based his account: “ 3.

This is a civil action, which was tried before Connor, J., at Spring Term, 1888, of Tyrrell Superior Court, brought to recover damages occasioned by the alleged failure of the defendant to keep and perform his contract with the plaintiff, set forth in the complaint.

<p>This is a civil ACTION, commenced by the testator of plaintiffs, to recover damages alleged to have been caused by the flooding of his land by the act of the defendant company in constructing its road bed, tried before Montgomery, J., at Spring Term, 1888, of Currituck Superior Court.</p> <p>By consent, the issue: “ What damage has the plaintiffs sustained?” was submitted to a jury, and as to all other issues and facts a jury trial was waived, and it was agreed that they might be passed upon by the Court.</p> <p>The response to the issue submitted to the jury was “ $700,” and the Court found the following facts, to-wit:</p> <p>The plaintiffs’ testator owned the land and lead ditch described in the complaint. The defendant in locating and constructing its road bed, cut across said ditch and also cut ditches by the side of its road bed to, get dirt for the road bed, and also to drain the road bed. In constructing its road bed the defendant cut across the embankment or dirt on the side of the lead ditch. By means of the locating and constructing of said road bed more water was drained into plaintiffs’ ditch than it could carry off, and the plaintiffs’ land was flooded and injured thereby. The water thus carried by the defendant’s ditches was surface water, except occasionally after heavy rains the water from the Dismal Swamp would spread out over the surface from the ditch. There was no natural or artificial drain for these waters.</p> <p>The “ lead ditch ” was sufficient to drain plaintiffs' land till defendant constructed its road.</p> <p>The lands of plaintiffs’ testator, over which the defendant constructed its road bed and ditches, and also a section or part of the lead ditch had been condemned by regular proceedings under the statute and damages for the land taken, and the legal incidental damages to the lands not taken had been assessed and paid to him by the defendant.</p> <p>The defendant did not locate and construct its road bed or dig any ditch outside or off the lands which had been condemned and paid for.</p> <p>The ditches cut by defendant were necessary for the purpose of the road bed, for the road and for the safety of travel over the road, and the road bed could not have been drained in any other way.</p> <p>The plaintiff could have obviated the difficulty or relieved his land of this increased volume of water, drained into his lead ditch, by cutting the same deeper.</p> <p>The plaintiff, upon the above facts and issue, moved for judgment for $700.00 and costs.</p> <p>The Court refused the motion, and upon defendant’s motion, granted judgment for defendant. The plaintiffs ex-' cepted, and from the rulings and judgment appealed.</p>

Civil action tried before Connor, J., at Spring Term, 1888, of the Superior.Court of Tyrrell County. The following are the facts agreed upon ; “1. July Oth, 1872, V. B. Norman qualified in the proper Court of Tyrrell County as guardian of the relator, with W. W. Walker and II. P. Alexander as sureties, his bond being, as set out in the complaint, in the penal sum of $1,040. He made no returns whatever of his guardian account.

<p>This is a Motion for leave to issue an execution, which was heard, upon appeal from the judgment of the Clerk of the Superior Court.of Chowan County, by Montgomery, J., at Spring Term, 1888.</p> <p>The plaintiffs, on the 23d day of December, 1877, recovered judgment against the defendant before a Justice of. the Peace for a sum within his jurisdiction, on which he issued execution on the 9th day of February following. Execution issued on the 30th day of September of the same year, and was returned with the officer’s endorsement, “ nothing to be found.”</p> <p>The judgment was docketed in the Superior Court of Chowan on January 13th, 1879, since which no execution has issued.</p> <p>On December 19th, 1887, notice issued and was served on the defendant two days, thereafter, of the plaintiffs’ intended application to the Clerk for leave to issue execution, and their motion was accordingly made, supported by the affidavit of one of them that the judgment remains unsatisfied, specifying the sum due. To the granting the motion the defendant interposed the defence of the statute of limitations, and the Clerk, sustaining the objection, refused the-leave demanded, and dismissed the proceeding. Upon plaintiffs’ appeal, the Judge presiding at the next term reversed the judgment of the Clerk and allowed the motion with costs, and from this judgment the defendant appeals to this-Court.</p>

This is a civil action to vacate a grant, tried before Montgomery, J., at Spring Term, 1888, of Currituck Superior Court.

<p>This is civil ACTION which was tried before Montgomery, J., at June Term, 1887, of PasquotaNK Superior Court.</p> <p>The object of the suit is to restrain the defendants from expelling the plaintiffs, their agents and servants from the lands in controversy, (under § 1121 of The Code,) and to remove cloud upon their title.</p> <p>The following'are the material parts of the “ case agreed” and submitted to the Court for its judgment thereupon:</p> <p>“ The land in controversy was granted by the State to John Gray Blount, September 7, 1795.</p> <p>On March 24; 1873, the heirs at law of said John Gray Blount, for a consideration of $1,014, conveyed their interest in said land to B. F. Sikes, with special warranty only.</p> <p>B. F. Sikes executed a deed to Baird, Roper & Co., in March, 1873, for said land, and thereafter, by a regular series of conveyances, it came to the plaintiff, a duty incorporated company, by deed dated 31st of May, 1887.</p> <p>The land is of the character known as “ Swamp Lands,” and was not cultivated, or actually occupied, by anjr one up to March 24th, 1873. Very shortly after that, to-wit: May 15, 1873, Baird & Roper commenced to work and occupy the same, and continued so to do constantly till plaintiff brought this action in 1887.</p> <p>' Since 1873 these lands, under the boundaries set forth in the complaint, have been in the actual possession of plaintiffs and those under whom they claim.</p> <p>Prior to March, 1873, no one had actual possession thereof.</p> <p>The defendant, the State Board of Education, show a deed, as part of their claim to this land, signed “ James Hoskins, Sheriff of Tyrrell County, N. C., to Nathaniel Alexander, Governor,” purporting to convey the said land for taxes due by Thomas Fitts, as property of Thomas Fitts, which is dated October 26, 1807.</p> <p>The original thereof is now on file in the Secretary of State’s office, pasted in a book marked “ Old Heeds, Lands Sold for Taxes.”</p> <p>It is admitted that, on the 10th of March, 1801, John G. Blount executed a deed to one William Orr for 6,375 acres of land, in which deed, in describing the land conveyed therein, a call is made “ to a pine, Fitts’ and Blount’s corner,” “then with Fitts’ line,” &c. This land, so*conveyed to Orr, is a part of the Blount grant before named, but is no part of the land in controversy in this action, nor is it any part of the land described in the deed from Hoskins, Sheriff, to Alexander, Governor.</p> <p>The lands in controversy, and described in the Blount grant, were never listed for taxation by John Gray Blount, or any other person, from the year 1817 up to his death, in 1833, nor did he ever pay any taxes thereon during that period, nor were any taxes levied thereon.</p> <p>There is no evidence as to whether he listed them and paid thereon prior to 1817, or not.</p> <p>The tax lists of Tyrrell County are in existence since 1817, and up to 1874, and the lands do not appear as listed thereon. The tax lists prior to 1817 are not in existence.</p> <p>Since Baird & Roper purchased the lands, in March, 1873, they regularly listed them in Dare County and paid taxes thereon.</p> <p>The said lands formed a part of Tyrrell County until Dare County was formed, pursuant to an act of the Legislature, when they became a part of Dare County.</p> <p>After the death of John Gray Blount, in 1833, his heirs at law, under whom plaintiff claims, never listed said lands for taxes, and never paid any taxes thereon. The heirs of John Gray Blount never claimed the lands, nor any part thereof, until March, 1873, when they conveyed their interest to Sikes, as hereinbefore stated. John Gray Blount, nor his heirs at law, never made any effort to redeem said lands if they were forfeited.</p> <p>The defendant Board commenced to survey these lands, to-wit: the said Blount grant for 90,000 acres, in September, 1887, and surveyed all the land lines of the grant, and, knowing the water lines, finished the survey by November 1st, 1887.</p> <p>In December, 1867, the defendant Lewis, then agent -for the Literary Fund, and under its instructions, started with a proposed purchaser to inspect and sell these lands, but owing to high water did not succeed in reaching them.</p> <p>These lands were commonly known and designated in the neighborhood and in Tyrrell County as “ State Lands,” and were generally so called, but Baird & Roper, and those claiming under them, never knew of it.</p> <p>Baird & Roper, and those who succeeded them, paid valuable consideration for the lands, and had no notice of the alleged title of the defendants, other than the registration of the “ Hoskins Deed,” if that be notice; and plaintiffs had no actual notice óf that deed when they bought.</p> <p>There is no deed on record or in existence, so far as the parties hereto know, from John Gray Blount to Thomas Fitts.</p> <p>Baird & Roper, and those succeeding them, paid no ar-rearages of taxes prior to March, 1873.</p> <p>The defendant, “ The State Board,” claims the lands in controversy:</p> <p>1. Under the tax sale and deed by Hoskins, Sheriff, to the Governor.</p> <p>2. That these lands were forfeited to the State under act of 1842, chapter 36, and became vested in the defendant Board by the Legislature, because they were never listed for taxation from 1817 to 1873, and no taxes paid thereon, and no claim made by the heirs of the grantee Blount, during that time.</p> <p>3. If judicial process be necessary to declare a forfeiture, that the said lands be now declared forfeited.</p> <p>It is admitted that the plaintiff owns the lands in controversy through a regular chain of title from the State, unless the same is defeated by the claims of the defendant Board, as hereinbefore set forth.</p> <p>There is no evidence of any other survey or actual entry by the defendant or its predecessors, except as herein stated.’'"</p> <p>“ Upon the facts as stated in the case agreed, the Court was of the opinion that plaintiffs are the owners of the land in controversy, and gave judgment accordingly.</p> <p>Defendant excepted, and assigned as error, that upon the facts, as stated, judgment ought to have been given for defendants, as prayed for in their answer, and according to their various claims as stated in the case agreed.</p> <p>Exception overruled, and defendant appealed.</p>

This was a Civil aotioN for the recovery of land, tried before Avery J., at Fall Term, 1887, of Bektie Superior Court. The following is so much of the case settled on appeal as is material to the questions decided: “The plaintiffs put in evidence the record of a special proceeding entitled A. Wilson et. al. v. T. J. Harrell. It was admitted to be the record of the Superior Court.

This was an appeal from a judgment of Graves, J., rendered at February Term, 1888, of Bertie Superior Court, granting a perpetual injunction restraining the defendant from removing the stakes of the plaintiff under § 3383 of The Code.

Civil action tried at Fall Term, 1887, of Bertie Superior Court, before Avery, J. The complaint iu this action, commenced on October 20th, 1886, asserts title in the plaintiffs to the tract of land therein described and the wrongful withholding of a part thereof by the defendants and demands judgment for the recovery of possession. The allegations are severally denied in the answer.

This is a civil action, to try the title to the office of Clerk of the Superior Court of Hertfobd- County, tried at the Fall Term, 1888, thereof, before Montgomery, J. The relator alleged that he received a majority of the votes cast for Clerk of the Superior Court of the County of Hertford at the regular election held in the year 1886, and was then lawfully elected to that office for the term thereof then next ensuing.

Civil actioN, tried before Graves, J., at April Term, 1888, of Edgecombe Superior Court.

This is an appeal by the defendant from an order of Graves, J., directing a reference for an account, made at Spring Term, 1888, of the Superior Court of Edgeoombe County.

This is a civil action which was tried by Graves, J, a trial by jury having been waived, at Spring Term, 1888, of Edgecombe Superior Court. There was judgment for the defendant, from which the plaintiffs appealed. The facts are stated in the opinion.

Civil ACTION, heard before Graves, J., upon exceptions to referee’s report, at March Term, 1888, of Halifax Superior Court. This action, instituted to have a trust fund in the hands of the defendant R. IT.

<p>This is a civil action, tried before Graves, X, at May Term, 1888, of Craven Superior Court.</p> <p>The action is upon a note under seal executed by the defendants to the plaintiff on December 21,1875, wherein they covenant to pay him twelve hundred and nineteen dollars and wj with interest at the rate of 8 per cent per annum, and the complaint alleges to be due thereon, on the 30th day of January, 1883, the sum of five hundred and twenty dollars and and interest from that date for which judgment is demanded.</p> <p>The defendants admitting these general allegations, set up in their answer the defence of usury, alleging that a large sum of unlawful interest enters into the bond, purged of which they aver their readiness to pay any balance that may be found to be lawfully due on the obligation.</p> <p>The parties, waiving a trial by jury, consented that the Judge might upon the evidence ascertain and determine the facts, and he finds as follows:</p> <p>On June 24,1870, the defendants borrowed from the partnership firm of Rountree & Webb (the last named being the plaintiff) and as principals gave their note for the sum of fifteen hundred dollars. On February 18, 1875, the note was taken up and two others substituted in its place, each in the sum of $1,181.70, one of which was drawn payable to Thomas J. Latham, Cashier, at thirty days. Endorsements subsequently made on it show four several payments of interest, the last being up to December 1, 1875.</p> <p>This note assigned to him, as the plaintiff’s separate share of the joint fund, was replaced by the bond sued on and described in the complaint, and is in this form :</p> <p>$1,219.91. For value received we, George Bishop and John Hutchison, both principals, promise to pay to T-iewis Webb or order, the sum of twelve hundred and nineteen -«V dollars with eight per cent, interest from date. Witness ■our hands and seals December 21, 1875.</p> <p>Geojige Bishop, [Seal.]</p> <p>JohN HutciiisoN, [Seal.]</p> <p>Upon this bond several credits are endorsed by the plaintiff, all of them as partial payments, or in general terms as receipts, to-wit:</p> <p>On October 22, 1877, $200; on November (5, 1877, $10 ; on August 4, 1879, $694; on August 4, (same date), $119.96 ; on October 25, 1880, $100 ; and on June 30, 1883, $81.67, which is the last payment.</p> <p>Upon these facts his Honor gave judgment for the plaintiff, from which the defendants appealed.</p>

This is an appeal from a judgment of Graves, J, rendered at Spring Term, 1888, of Halifax Superior Court, setting aside for excusable neglect a judgment theretofore rendered in the cause.

This is a civil ACTION which was tried before Graves, J., upon complaint and demurrer, at Spring Term, 1888, of Warren Superior Court.

This is an issue devisavit vel NON, tried before Avery, at Spring Term, 1888,’ of the Superior Court of Nash County. The issue was found in favor of the propounders, and from the judgment thereon declaring the will duly executed and ordering it to be recorded, the caveator appealed.

Civil actiok, tried before Avery, J, at September Term, 1888, of the Superior Court of A^akce County. The plaintiff alleges that, in 1883, he made a loan of $450 to W. Fox, who executed his note therefor, as follows: “ On or before 22 clay of February, 1887, I promise to pay to I. I. Fuller four hundred and fifty dollars, with eight per cent, interest, for value received. Feb. 19, 1883. (Signed) T. W. FINCH.

civil ACTION, tried before Gravea, J., at Spring Term, 1880, of the Superior Court of OkaveN County.

<p>Joinder of Actions — Jurisdiction—Irregularity—Statute Limitations — Administration — Fraud — Evidence —Depositions — New Trial</p> <p>1. Where a special proceeding was instituted by an administrator for license to sell lands and was transferred to the Civil Issue Docket to be tried upon issues joined, and thereafter the plaintiff, without objection, was allowed to amend his complaint by alleging fraud in obtaining a former decree in another suit, where the defendants claimed title, and an amended answer was filed and issues also joined thereon, which were tried with the others; Held, that this procedure was very irregular, and ought not to have been permitted, but as there was no opposition to it and the Court had jurisdiction, its action might be upheld.</p> <p>2. Prior to the enactment of the statute — now The Oode, § 1433 — there was no statutory bar to proceedings against the heir to subject descended lands to the payment of the ancestor’s debts. In this respect the administration of estates before July, 1869, is governed by the law then in force.</p> <p>3. Where, in an action to set aside the judgment in a former suit for fraud,. proof was offered tending to show that the maker of a deed in trust (which was the foundation of the judgment) was insolvent, that the debt secured was not bona fide, that part of the property was perishable, and the debtor was permitted to retain possession, that the parties secured were members of a family, and that the administrator of the debtor, who was a party to the suit was also a relative, and knew all the parties, and had an opportunity to ascertain the facts but made no resistance; Held, to be evidence, and strong evidence, to go to the jury on the issue of fraud.</p> <p>4. Where there was a dispute between counsel as to whether there was evidence introduced on a controverted point, and the Court could not remember how the fact was; Held, that it was not error to tell the jury that they might determine whether there was such evidence before them, and if there was'they might consider it.</p> <p>5. Exceptions to evidence taken by depositions should be passed upon before the trial.</p> <p>6. To entitle a party to a new trial upon the ground of admission of incompetent evidence, it should appear that the objecting party suffered, or might have suffered, prejudice thereby.</p> <p>7. The former ruling in this case — 95 N. C., 57 — is affirmed.</p>

This is a civil action', tried before Avery, J., at February Term, 1888, of Vanoe Superior Court.

This is a civil action, which was tried before Shipp, J., at Fall Term, 1887, of Nash Superior Court.

This is a civil action, which was tried before Merrimon, J., at October Term, 1887, of Wake Superior Court. The plaintiff being the owner of a lot in the city of Raleigh, and her husband, Robert Hall, owning an adjoining lot, each containing a quarter of an acre, after their intermarriage united with him in executing a mortgage deed to Addison Pullejq conveying said lots to him to secure an indebtedness contracted by him in the purchase of a horse.

This is an appeal from an order made by Merrimon, J., at October Term, 1887, of Wayne Superior Court. This action for the recovery of dower in certain lands alleged to have been owned by a former deceased husband of the feme plaintiff and subject to her right of dower, was begun by a summons made returnable and returned before the Judge of the Superior Court of Wayne, at .the,regular Spring Term thereof, in the year 18S7.

<p>Will — Devise—“Rule in Shelley’s Case.”</p> <p>1. Where a testator employs words having a well known or technical meaning in the disposition oí his estate, that construction will be given them unless it can be seen from the instrument itself, that he used them in a different sense; and if he used such words as will bring the devise within a settled rule of law, that rule must prevail, though it conflict with the real intention of the testator.</p> <p>2. A devise to P, “ during her natural life, and after her death to the begotten heirs or heiresses of her body,” vested in P an absolute estate in fee simple,' under the rule in Shelley’s case.</p> <p>3. The opinion of this Court, delivered in this case, reported in 96 N. C., 548, is overruled.</p> <p>Davis, J., dissenting.</p>

<p>Civil action, commenced before a Justice of the Peace and carried, by appeal, to the Superior Court of AlamaNCE County, and tried before Gilmer, J., at March Term, 1888.</p> <p>The plaintiff’s demand was for $163.86, as a balance due upon a contract with the defendants for building a house. The defendants answered that they had over-paid the plaintiff the sum of $7;53, for which they set up a counter-claim.</p> <p>On the trial the plaintiff testified in substance that, he contracted with the defendants to build a brick house for them; that their express agreement was, he was to be paid $2.40 per thousand for laying bricks, to be estimated by “ wall count, solid measure.” Upon being asked what was meant by “ wall count, solid measure,” which was objected to by the defendants, the witness, after stating that he had been in the business of contractor and laying bricks and building brick houses for many years, was allowed to testify that “ wall count, solid measure,” had a certain meaning among brickmasons, and contractors for brick work, “ which obtained universally, and especially in Alamance and Guilford counties,” in which latter county defendants’ house was built. The witness was further permitted to testify, after objection by defendants, that, among those skilled in laying brick and among contractors for such work, the words “ wall count, solid measure,” meant that “ the walls of the building were to be estimated, without reference to windows or doors, as if the walls were solid work, and that the bricks were to be computed at the rate of eighteen (18) brick to every cubic foot in the wall. That, estimating the defendants’ house by this rule, the number of bricks for which he was entitled to pay was 224,835,, * * * * that defendants had paid plaintiff on his work at divers times sums amounting to $380.05, thus leaving a balance due him of $163.80.”</p> <p>The defendant, Berry Davidson, then testified in substance that, the plaintiff agreed to lay the brick for $2.40 per 1,000. “ That he asked the plaintiff whether he would charge for the doors and windows as if they were laid in brick, and was told that he would; ” that with this understanding the contract was made; that at' the .time not one word was said about “ wall count, solid measure;” that defendants purchased the brick with which the house was built; that there was only 155.219 used, which, at $2.40, came to $372.52, which was $7 53 less than he had paid the plaintiff; that he knew nothing of any .such rule for counting as was alleged by the plaintiff to obtain among masons, contractors, &c., and that the first he knew of any purpose on the plaintiff’s part to estimate the number of bricks by .any such rule was after the work was done, when he objected, and insisted on ascertaining the number of brick by contract count.”</p> <p>Witness also testified that he was a builder and contractor, and had worked in stone and brick, and that the brick used were larger than the average size, being 81-X4IX3, the usual size being 8x4x3.</p> <p>J. W. Long testified to the same fact, and that owing to the size of the bricks it required from 34,000 to 37,000 less to do the work; that 18 bricks of the common size made a cubic foot, while 14^- of the size used made a cubic foot.</p> <p>The plaintiff introduced other experts, who testified that the word “ wall count, solid measure,” had an established signification among brickmasous and contractors, and that they meant that the walls of the building were .to be estimated as solid, without reference to windows and doors, and the brick to be computed at 18 per cubic foot; to all which defendants excepted.</p> <p>Defendants then introduced T. C. Oakley and T. S. Christian, builders and contractors in brick work, who, in answer to the question as to how they estimated brick work and what was the usage in Durham among brickmasons and contractors, said it depended wholly on the contract; that sometimes parties would contract with reference to size of the brick, and when under the usual size it was usual to charge more per 1,000.</p> <p>On cross-examination they testified that among brick-masons and contractors by “ wall count, solid measure,” would be universally understood to mean that the walls were to be estimated as if the doors and windows were laid solidly in brick, and the number of bricks computed at 18 per cubic foot, “ wall count, solid measure,” being terms of art amongst masons, contractors and others.</p> <p>The defendants insisted that the jury should find the terms of the contract as made by the parties, and that it was not competent for the plaintiff to offer evidence to explain the terms used by the parties, and that no custom or usage could be shown “ unless the same was reasonable, certain, uniform and universal, and known to the defendants or brought to their knowledge at the time contract was made, and that the proper mode of counting the brick in the walls was made by actuaTcount.”</p> <p>His Honor instructed the jury that when the terms of a contract are ascertained, its construction is a matter of law for the Court, but that when, as in this case, the parties differ as to the terms of their contract, the plaintiff saying that it was expressly stipulated between them that the number of bricks were to be ascertained by “wall count, solid measure,” while the defendants testified that no such agreement was made, then it devolved upon the jury to say what were the terms of the contract as entered into between the parties. That if they should find that no such terms as contended for by plaintiff, then the rule for computing the bricks in the wall would be by actual count. That if they believed that, according to the contract, it was agreed that the bricks were to be ascertained by “wall count, solid measure,” then the jury must pass upon and determine the meaning of those terms, that is, if they should believe that such terms were words of art, and had a special signification among builders and contractors and others, but that after the}'' had ascertained the meaning of such terms, it was still the duty of the Court to construe the contract. That if they should believe that the parties to this contract stipulated that the count of the brick was to be made by “ wall count, solid measure,” and that these terms were termsof art,and meant amongst contractors, builders and others that the count was to be made by ascertaining the number of cubic feet in the wall and then multiplying that number by eighteen (18), as the number of bricks of average size needed to make a cubic foot, then they should find for the plaintiff. But, if they believed that no such terms as these were used, or that, if used, they had no such signification, or were not terms of art (and it was the duty of the plaintiff to satisfy the jury upon all these points by a preponderance of evidence), then they should find for the defendants.</p> <p>To this charge the defendants excepted. There was a verdict and judgment thereon for the plaintiff, from which defendants appealed.</p>

This is a civil action, tried before Shipp, J., at August Term, 1888, of PersoN Superior Court.

This is an appeal from the refusal of his Honor, Shipp, J., to strike from the record in this action the names of certain parties and their pleadings, at October Term, 1888, of ChathaM Superior Court. a The plaintiff's action is to recover the balance due on a note under seal for five hundred dollars executed to one J. B. Harris on March 31,1887, by the defendant Jesse Richardson, due one day after date, and bearing interest from date at the rate of eight per cent per annum…

This was a civil action, tried before Merrimon, at January Term, 1888, of Durham Superior Court.

Civil action, tried before Shepherd, J, at November Term, 1887, of the Superior Court of Orange County. On the 20th of November, 1886, the plaintiff instituted two actions against the defendant in a Court of a Justice of the Peace — one on a note for $250, dated September 25th, 1868, credited by $125, May 22d, 1869, the other on a bond for $180, dated February 25th, 1871. There was a credit of $5 on each note, as hereinafter set out.

<p>Res Judicata — Judgment.</p> <p>1'. Where in an action involving the title to property judgment was rendered that the plaintiffs were the owners and the defendant had never been the owner, and the defendant brought another action against those under whom the plaintiffs claimed to recover for injuries done by them to the same property. Held, that the judgment in the first action was res judicata and a conclusive bar to the second.</p> <p>2. It is suggested that the proper way to make the defence of another judgment for same cause of -action available, is to offer the record in evidence to the jury, leaving the Court to instruct them as to the "effect.</p> <p>[Blackwell Manufacturing Co. v. McElwee, 94 N. C., 425. Commented upon and distinguished.</p>

<p>Costs — Married Women — Mortgage—Trust and Trustee — Deed.</p> <p>1. The prevailing party in an action may be adjudged to pay the costs incurred in an unsuccessful attempt to enforce his judgment.</p> <p>2. In pursuance of an ante-nuptial contract real estate was conveyed to a trustee ‘ for the sole and separate use of ” the wife — subsequently she, by deed duly executed by her and her husband, mortgaged her estate in the property, but the trustee did not join therein. In proceedings to foreclose, the trustee was made party : Held (1), that the mortgage was not invalid by reason of the omission of the trustee to join therein ; and (2), that a sale under a decree of the Court would vest in the purchaser the legal and equitable title to such interest as the wife had under the trust.</p>

Defendant's Appeal. Civil action, tried before Shepherd, J., at .June Term, 1888, of Northampton Superior Court, upon exceptions to a referee’s report. Both parties appealed from the judgment rendered. Green Stancell died in January, 1862, leaving a last will and testament, in which no executor was named, and at March Term, 1862, of the Court of Pleas and Quarter Sessions of Northampton County, S. T. Siancell and L. I).

This is a civil action which was tried before Shipp, J., at April Term, 1888, of Wake Superior Court. On the 17th day of January, 1885, the plaintiff, by its agent, one Vick, and the defendant Johnson, signed, in duplicate, the paper hereinafter set out as Exhibit A. Johnson testified, however, that the portion printed in italics was erased — •“ scratched out” — in the copy retained by him, and this was done with the consent of the plaintiff’s agent.

<p>This is a civil action, which was tried before Connor, J., at Spring Term, 1886, of Guilford Superior Court.</p> <p>The defendants executed to W. H. McDaniel their two single bonds, each for $65, dated the 10th day of August, 1882 — one of them to come due nine months, and the other' twelve months from the date thereof. The plaintiffs became the owners of these bonds without endorsement thereof. They were, executed in connection with and as part of an agreement in writing under seal, between the said McDaniel and the defendant, John B. Smith, (the other defendant was-surety to the bonds) whereby the said Smith purchased a patent right bee hive, and agreed to make and sell such bee hive within a specified territory, and, among other things, the parties mutually covenanted as follow's: “And it is agreed that the party of the second part (the defendant, John B. Smith) is to use due diligence in the manufacture and sale of said bee hive, with the right of use for the same, and the county for the same, and on failure to make one hundred and ninety-five dollars by the sale of said patent by the time said notes become due this contract is null and void. And the deed of said territory, with all other papers, wdth what has been made by selling said patent, are to be delivered to the party of the first part, and said notes or one hundred and ninety-five dollars in cash shall be delivered to the party of the second part.”</p> <p>This action was begun by the plaintiff in the court of a Justice of the Peace to recover from the defendant the money alleged to be due upon the two single bonds above mentioned. In the Superior Court formal pleadings were-filed. The defendants in their answer, admitted the execution of the bonds; alleged the agreement mentioned; that Ihe defendant John, had in all things on his part faithfully observed and performed its provision and requirements; that he had made diligent effort to sell the patent right, <fcc., &c., and the said McDaniel and the plaintiffs, his .assignees, had not, &c., &c.</p> <p>The issue, of which the following is a copy, was submitted to the jury, to which they responded as indicated at the end thereof: “ Did the defendant use due diligence, under the •contract, in the manufacture and sale of the bee hives and the patent therefor ? ’’ Answer. Yes.</p> <p>To sustain the issue the defendants introduced the defendant, John B. Smith, as a witness on his own behalf, who testified as follows:</p> <p>“ I signed the notes; this contract was made at the time the notes were given as a part of this contract; the members of the firm of McDaniel & Co. were all present, and Cartland, one of the firm, and the secretary, signed the contract in their presence.</p> <p>“I did not go to Amherst County, Virginia. I did not .go because McDaniel told me I need not go. I went to Rockingham County and Guilford and tried to sell. These ■counties had not been sold. H e (McDaniel) said to sell in territory that was not sold, and if I could not make the money to return the papers. It was about one and a half or two months after the contract before I came here to commence work. I went to Rockingham County and was there a week, and I made no sales. I told Mr. McDaniel that I could not sell, and he said go and try again. I went, and when I came back he was gone. I have not seen him since. I saw Cartland; he said McDaniel had taken the notes off and sold them. I made no bee hives. I had three bee hives. I had one in Rockingham. I bought them. Had •one at my father’s; one in the upper end of Guilford. I took one with me to Rockingham. I brought it back. I •carried it to Reidsville and other places to show.”</p> <p>W. E. Smith testified that he signed the notes as surety for his son, and was present when the contract was signed. John B. Smith went from home and was gone, as he said, for the-purpose of selling the hives and patent.</p> <p>The foregoing testimony of John B. Smith and William-E. Smith, and the contract attached to the answer signed'by the parties, was all the evidence offered, the plaintiffs having offered no evidence except the notes themselves.</p> <p>Plaintiffs, by way of demurrer to the evidence, insisted that taking all the evidence offered and put in by the defendants to be true, and plaintiffs admitted that it was all true, that as a matter of law the defendants had not used due diligence in the manufacture and sale of the Bee Hives and in the sale of the patent, and that his Plonor should so instruct. the jury, and direct them to return their verdict in the negative to the issue.</p> <p>PTis his Honor refused, and plaintiffs excepted.</p> <p>His Honor then instructed the jury that it was for them-to decide from all the evidence and facts in the case whether the defendant had used due diligence. Plaintiffs excepted.”</p> <p>Judgment was given for defendant, and plaintiffs appealed.</p>

This is a civil ACTION, which was tried before Shipp, J., at Spring Term, 1888, of Wake Superior Court.

Civil action, tried before Shipp, J., at April Term, 1888, of the Superior Court of Wayne County. The action was brought for the possession of personal property, to January Term, 1888, of the Superior Court of Wayne.

Civil ACTION, tried before Avery, J., at August Term, 1888, of AVaice Superior Court. The parties agreed upon and submitted to the Court for its judgment thereupon the following statement of facts: 1. That on the 8th day of February, 1887, defendant Chap-pell was seized and possessed of a tract of land in AVake County, on which defendant AVoodlief held registered mortgages, amounting to the value of the land, executed prior to that date. 2.

Civil ACTION, to recover land, tried before Avery, J., at August Term, 1888, of the Superior Court of Harnett County.

This is a civil ACTION, which was tried before Shipp, J., at Spring Term, 1888, of WaYNE Superior Court.

<p>This is a civil ACTION, tried upon a case agreed before Shipp, /., at Spring Term, 1888, of Wake Superior Court.</p> <p>The parties agreed upon and submitted to the Court the following statement of facts :</p> <p>“On and immediately prior to February 1st, 1887, the plaintiff was the owner of a stock of tailoring goods and tailors’ utensils, and the furniture and fixtures of a merchant tailor’s establishment, in the city of Raleigh ; the goods, &c., being then in a store-house until recently theretofore occupied by the firm of Kreth & Weikel.</p> <p>That on February 1st, 1887, the plaintiff sold all of the goods, &c., to the defendant, A. Belsmeyer, and contemporaneously with such sale, Belsmeyer, to secure the purchase money, made and delivered the mortgage set forth below.</p> <p>That the purchase money was to be paid in instalments according to the tenor and effect of the notes of Belsmeyer to plaintiff.</p> <p>That at the time of the above sale Belsmeyer was a tailor by trade, and had no property other than that purchased as above from plaintiff, and owed other debts to other persons, and was insolvent. These debts were due to Henkelman, Jackson & Co., and to Focke & Sprenkle, and amounted to two or three hundred dollars and have been since paid. The plaintiff did not’ know of them when the mortgage was made to her.</p> <p>That Belsmeyer took possession of the goods, &c., sold to him by plaintiff, and proceeded'to manufacture the same into suits, and bought other goods from the defendants, Henkelman, Jackson & Co., and from other parties, and with all the goods thus purchased by him from the plaintiff and from Henkelman, Jackson & Co. and other parties, he carried on the merchant tailoring business in the city of Raleigh for nearly twelve months, until the sale by him to Henkelman, Jackson & Co., as hereinafter stated. That he carried on this business with the goods thus obtained by him without any control or interference on the part of the plaintiff or any other person. That in this way he sold off, prior to the commencement of this action, a considerable amountof goods,'including a large part of thatpurcbased of plaintiff; that Repaid plaintiff something over six hundred dollars from the proceeds of such sales, and used the residue of such proceeds in payment of other debts due and owing by him, and in his business and for his family and household expenses.</p> <p>That between the 1st day of February, 1887, and 16th day of January, 1888, Belsmeyer became indebted to the defendants Henkelman, Jackson & Co., wi'hout the knowledge of plaintiff, for goods purchased of them as aforesaid, to be used in his business as a merchant tailor, in the sum of eight hundred and sixty-three dollars and_cents, and being so indebted he made and delivered to said Henkelman, Jackson & Co., his other mortgage, to secure the said debt.</p> <p>That immediately upon the execution .of the other mortgage, defendants Henkelman, Jackson & Co. took possession of the goods described in the complaint which were conveyed to them, and held possession of the same, through their agent, the defendant J. A. Rogers, until the 17th day of January, 1888, when they were taken from their possession by the Sheriff of Wake County, under and by virtue of process caused to be issued by the plaintiff in this action, and were by the Sheriff delivered to plaintiff, by whom they have since been sold and disposed of.</p> <p>That the goods described in the complaint consisted of some of those originally purchased by Belsmeyer from the plaintiff .and some purchased by him from defendants Hen-kelman, Jackson & Co., and some purchased by him from other persons, and were so intermingled as not to be separable or distinguishable at the time of theseizure by the Sheriff.</p> <p>That the matters of fact stated in the said mortgages are admitted to be true, except as modified herein.</p> <p>That plaintiff claims these goods in this action as mortgagee, and the indebtedness still due upon her mortgage is more than thirteen hundred dollars.</p> <p>The defendants Henkelman, Jackson & Co. claim the goods as mortgagees, and the whole indebtedness secured by their mortgage is still due.</p> <p>That the value of the goods described in the complaint is $1,250.</p> <p>That both of the mortgages were duly proved and registered in the office of the Register of Deeds in and for the said County of Wake — the first on the 3d day of February 1887, and the second on the __ day of January, 1888.</p> <p>It was agreed between the parties that if the Court should be of the opinion, upon the foregoing case agreed, that the plaintiff is the owner of and entitled to hold the goods and property, then judgment shall be entered that the plaintiff retain possession thereof and recover her costs. If, on the contrary, the Court should be of the opinion that the defendants Henkelman, Jackson & Co. w'ere the owners of the goods and entitled to the possession thereof, then judgment should be entered in favor of Henkelman, Jackson & Co. for the sum of $863, less credit of $25, and interest on their counterclaim, and for their costs.”</p> <p>The defendants contended, that on the facts agreed the plaintiff had not rebutted the presumption of fraud, and that the mortgage to the plaintiff was fraudulent and void as to the defendants Henkelman. Jackson & Co., and that therefore the plaintiff could not recover. His Honor declined so to hold, but held that the mortgage-was not fraudulent under these facts. <. . ,</p> <p>The defendants farther contended, that there was no sufficient description-of the property conveyed in the mortgage, and as after acquired property was so mixed with that on hand when the mortgage was made as not to be distinguishable, that no property passed to the plaintiff, or at least that only such property passed as was on hand when the mortgage was executed, and as this could not be separated that the plaintiff was not entitled to recover in this action. Plis Honor refused so to hold but ruled that all the goods on hand when the plaintiff took possession under the proceedings in this action were covered the mortgage, and that the plaintiff was entitled to recover them.</p> <p>The following is a copy of the material portion of the mortgage under which the plaintiff claims:</p> <p>This deed, made, &c., witnesselh.: That for and in consideration of the sum of twenty-five hundred dollars, to said August Belsmeyer in hand paid by said Mary C. D. Kreth, the receipt whereof is hereby acknowledged, the said August Belsmeyer hath bargained and sold and he doth hereby bargain, sell and convey unto said Mary C. D. Kreth, her executors, administrators and assigns forever the following described property, to-wit: All the stock of cloth, clothing, tailors’ trimmings, sewing machine, desk, stove and pipe, tables, tailors’ utensils, lamp, chairs and boxes in the storehouse on Fayetteville street, lately occupied by Kreth & Weikel, being the property this day sold by said M. C. D. Kreth to said Belsmeyer, and all property of like character which the said Belsmeyer shall acquire for and in his business as a merchant tailor, until the mortgage shall be satisfied.</p> <p>And he covenants wfith said M. C. D. Kreth to buy for cash and to keep the stock of goods fully up to present value, and not to remove such stock from said city.</p> <p>To have and to hold the said property, &c.</p> <p>The conditions of this deed are such that whereas the said August Belsmeyer and one Bernard Greenwood, of Wilson County, are justly indebted to said M. C. D. Kreth in the ■sum of twenty-five hundred dollars for the purchase money of said articles of property bought by said Belsmeyer, as evidenced by the thirteen single bonds of said A. Belsmeyer and B. Greenwood, bearing even tenor and date herewith, said bonds bearing interest from date at the rate of eight per centum per annum.</p> <p>Now, therefore, if said bonds and interest thereon shall be promptly paid according to the tenor of the same, then this deed shall be null and void, otherwise to remain in full force and effect.</p> <p>And if default shall be made in payment of any of said bonds when the same shall fall due, or shall commit a breach in either of his said covenants, then in either such event .said Mary C. D. Kreth, her executors, administrators and assigns, are hereby fully authorized and empowered to take possession of and sell the above conveyed property at public outcry, at the court house in Raleigh, after advertisement for twenty days in some newspaper published in Raleigh, for cash, and out of the proceeds to deduct, first, the costs of advertisement and sale; second, the amount which shall then be due on said bonds, with interest accrued to day of sale; and if there should then remain any surplus, to pay the same over 10 the said A. Belsmeyer, his personal representatives or assigns. And in the event of a sale under this power, said M. C. D. Kreth, her executes, administrators and assigns, are fully empowered to execute all necessary deeds and instruments of conveyance to the purchaser or purchasers of said property.</p> <p>It is further expressly understood and agreed between the parties hereto, that if default shall be made in the payment of either of said bonds, when the same shall be due, then all of said bonds shall immediately become due and payable, whether due by their terms at the time of such default or not, and the said Mary C. D. Kreth, her executors, administrators and assigns, shall be at liberty to exercise the power of sale above given and conferred, notwithstanding the fact that one or more of said bonds shall not at the time of said default be due and demandable by their terms.</p> <p>And said A. Belsmeyer further covenants that he will pay all taxes that shall be assessed on said property while any of the money secured by this mortgage shall remain unpaid, and that he will keep the same insured in some insurance company in good standing, having a resident agent in the county of Wake, for the benefit of the mortgagee and her assigns, in a sum not less that $2,500, as long as anything shall remain due on the amount hereby secured. And if he fail to pay said taxes and to effect and keej) up said insurance, the mortgagee aforesaid shall be at liberty to pay said taxes and to effect and maintain said insurance, and any sum or sums by her or them so paid shall be added to the principal of the sum then due on the first of said bonds thereafter to become due and draw interest accordingly.</p> <p>In testimony whereof, &c.</p> <p>“ The Court, upon the facts set out in the case agreed, found as a conclusion of law and fact that the mortgage made by the defendant, A. Belsmeyer, to the plaintiff', dated February 21, 1887, was not made with the purpose and intent to delay, hinder and defraud the creditors of said Belsmeyer, or such person as should thereafter purchase from him. And upon the above finding, and other facts in the case agreed, it is considered ordered and adjudged that the plaintiff is the owner of and entitled to hold the goods and property described in the pleadings and in controversy in this action, and that plaintiff retain possession thereof and recover of the defendants her costs of this action.” Prom this judgment the defendants appealed.</p>

<p>Slander of Title — Arrest and Bail.</p> <p>1. An action for slander of title will lie only where a person has an interest or estate in the property, and another person falsely and maliciously impugns his title thereto, by reason of which some special damage is suffered.</p> <p>2. It is questionable if an order of arrest may be properly granted in an action for slander of title. '</p> <p>3. In an application for an order of arrest the applicant is required to set forth fully and with legal precision the facts which constitute his alleged cause of action; if they are of his own knowledge they should be positively stated, and if they are upon belief, he should state the sources of his information, so that the Court can determine if a proper cause of action exists.</p> <p>4. Where the defendant moves to vacate the order upon the ground that it was irregularly or improvidently granted, the plaintiff will not be allowed to offer additional evidence in support of his application; but if the defendant moves to vacate upon counter proofs the plaintiff may produce further evidence.</p> <p>5. If the order was properly granted it ought not to be vacated upon the simple denial of the alleged cause of action; but where the answer or counter affidavits meet the allegations of the plaintiff fully and in detail, and furnish convincing evidence of their truth, the order should be vacated.</p> <p>6. The findings of facts by the Judge — man action at law — upon which an order of arrest is made or vacated, are conclusive.</p>

<p>Pleading — Counter-claim—Plea since last continuance.</p> <p>In an action to recover possession of property, the defendant alleged in his answer matters which arose subsequent to the commencement of the suit, and upon which he demanded affirmative relief. On the trial, after the jury was empanelled, the plaintiff demfir-red, ore terms, to so much of the answer as referred to the said new matters : Held,</p> <p>1. That the objection came too late, and if it had any force it should have been made at the time the answer was filed.</p> <p>2. That although the matter was not strictly a counter-claim, yet, as it was pertinent to the subject of the action, and the Court had jurisdiction, by consent of parties or with the sanction of the Court, it was proper to consider the questions thus raised, and determine the action upon the merits, as uponaplea “since last continuance.”</p>

This is an appeal from the judgment of Shepherd, J., Refusing to allow a motion of the defendant to vacate an order of arrest made in an action pending in New HaNOVEB, Superior Court, heard at Chambers on January 27, 1888. The order of arrest was made upon the following affidavit: “ Henry W. Malloy being duly sworn, deposes and says: “ 1. That he is the agent of the plaintiff. “ 2.

<p>Administration — Statute limitations — Presumption—Devastavit.</p> <p>1. The seven years limitation prescribed by Rev. Code, Ch. 65, Sec. 11, was applicable only to demands against the debtor in his lifetime, but when such claims were reduced to j udgment, they became merged therein, and there was no statute of limitation against proceedings for its enforcement, either against the personal or real estate of the decedent. After the expiration of ten years a presumption of payment arose.</p> <p>2. Where there has been a devastavit the remedies against the personal representatives must be exhausted before resort can be had to the real estate of which the deceased died seized and possessed; but where the personal estate was lost without negligence or default of the personal representative, recourse may be had to the descended lands.</p>

<p>Penalty — Marriage—Register of Deeds — Negligence.</p> <p>Where a Register of Deeds issued a license for the marriage of a woman under the age of eighteen years, without the written assent of her parents, upon the application of a stranger, who, in response to inquiries put to him, stated the residence of the parties desiring to be married, their parentage and that the woman was 18 or 19 years old, but the Register made no further inquiry: Held, that he had made no such reasonable inquiry that there was no probable legal impediment to the proposed marriage as required by law, and he had incurred the penalty provided for the neglect of his duties in that respect.</p>

This is a civil ACTION, tried before Merrimon, J., at August Term, 1888, of LeNOIB. Superior Court. The action was brought to recover damages for the breach of the covenants of seizin and against incumbrances comprised in a deed executed by the defendant to the plaintiffs, conveying the lands mentioned and described therein, and the following are the facts agreed upon by the parties for the consideration of the Court : 1.

This was an application to have a homestead allotted, tried upon issue of fact joined, before Shepherd, J., at Spring Term, 1888, of Sampson Superiour Court.

Civil action, heard upon exceptions to report by Gilmer, J., at December Term, 1886, of Moore Superior Court. This action was brought to recover possession of the land described in the complaint The plaintiff’s title to this land, was derived from a sale thereof, under executions issued against the defendants, made on the 7th day of Auguát, 1879, and the deed of the Sheriff therefor, executed on the next day.

Civil ACTION, originally commenced before a Justice of the Peace for the county of Moore, and carried by appeal to the Superior Court of said county, and tried before Clark, J., at April Term, 1887. The material facts preseuted in the record are as follows: On the 11th day of September, 1875, John McKay, administrator of Malcolm Blue, commenced an action against M. C. Clark and A. R. McDonald, administrator of Arch.

This was a civil action for the recovery of land, tried before Connor, /., at the September Term, 1887, of RiciimoND Superior Court. The plaintiff claimed title to the land described in the complaint, by virtue of an execution sale and Sheriff’s deed made pursuant thereto. The defendant denied that the plaintiff was the owner of the land, or that he wrongfully withheld possession thereof. He admitted being in the possession.

This is a PETITION to rehear this appeal, the cause having been argued and an opinion filed and judgment delivered therein at last term. (See 99 N. C., 377.)

This is a MOTION to vacate a judgment rendered in an •action pending in Cumberland Superior Court, hea'd before Shepherd, J., in Chambers at Wadesboro, in the county of Anson, on October 4th, 1888.

This is a civil ACTION, tried before Boylcin, J., at Fall Term, 1886, of MONTGOMERY Superior Court. The following is a copy of the material portion of the complaint: “ 1. That on or about the 13th of February, 1885, the defendant W. F. Hudson assaulted and arrested the plaintiff under color of process sued out by the defendant W. W. Hailey, before the defendant D. C. Baldwin, and brought the plaintiff before the defendants, Baldwin and Turner, justices of the peace. 2.

<p>This was a motion for the appointment of a receiver, made in a cause pending in Davidson Superior Court, and heard before Montqomerii, J., at Chambers, in Concord, on December 22d, 1887.</p> <p>N. L. Stith died in February, 1878, having, on June 6th, 1874, made his will, which has been duly proved, and therein appointed as executors his son, the plaintiff, Frederick H. Stith, his daughter, the defendant Alberta B. Jones, and two others, of whom one died in the life-time of the testator, and the other refused to qualify, thereby devolving upon those named the execution of its trusts. The will, among other things, contains this provision : “ The debt due to Turner W. Battle (the refusing executor) for money borrowed, and for which he has my note, with A. B. Stith (the executrix) as security, for two hundred and fifty dollars ($250), with interest on it, I want paid as soon as practicable, and herewith make this debt a special charge oh my estate. I herewith direct my executors, hereinafter named, to sell my Ward Gold Mine and land embraced in same tract; also my gold mine and tract of land, known as the Hargrave land, as soon as practicable, and after paying T. W. Battle his debt, to pay a note to the Bank of Mecklenburg,” and’ other enumerated debts; and then he proceeds to say, after paying said debts, “the money arising frpm the sale of the Ward and Hargrave tracts of land I give to my son, Frederick H. Stith, and my daughter Alberta Bassett Stith, share and share alike.” Subsequent to the making of the will, on the 14th day of January, 1876, the testator executed a deed for the recited consideration of $800, to the said Alberta B., wherein he conveys to her in fee, by defining boundaries, the Ward tract of 350 acres, with full covenants of warranty and seizin, which deed has been proved and registered since the testator’s death, but the delivery by him is denied by the plaintiff.</p> <p>On May 15th, 1886, the contestant parties entered into an agreement to work the Ward mine on joint account, the terms of .which are set out in detail in the contract.</p> <p>On December 4th of the same year the contract was superseded by another, entered into by and between the defendant Alberta and John W. Tonkin for the working of the same mine, by what is called “a hydraulic process,” with conditions and provisions not necessary to be specified.</p> <p>The complaint alleges that the said Alberta, on May 10th, 1886, pretending to be sole owner of the Ward tract, made a deed therefor and attempted to convey the same to the defendants Wilson Kinley and wife, Mary A., they being aware of the want of title in their grantor. •</p> <p>It further charges that said Alberta has now possession of said land, valuable chiefly for its deposits of gold; is working the mine through irresponsible and insolvent tenants; using the proceeds for her own benefit; rendering no accounts of the operations going on; wasting and despoiling the property, denying all right and interest of the plaintiff therein — while she is insolvent and unable to make good to the plaintiff his share of the toll, and compensate for the deterioration in the value of the mine resulting from the manner of working it. The prayer is for an account, for an order can-celling and annulling the alleged dee! of the testator, for the appointment of a receiver, and that the trusts of the will be executed.</p> <p>The answer is full and responsive to these allegations, of which it is only necessary to say, that an interlocutory order for the appointment of a receiver to take charge of the property, and hold the same pending the litigation, was asked of Clark, J., holding the December Term, 1887, of Davidson Superior Court, who allowed the motion of plaintiff’s counsel, that the defendants show cause why such appointment should not be made, before Montgomery, J., of the Eigth Judicial District,-at Concord, on December 20th.</p> <p>The parties consenting to the postponement of the hearing until the 22d day of the same month, the Court directed “ that Truman Coman be appointed receiver of the Ward tract of land mentioned in the pleadings, except that he is not to disturb the defendant Jones in her possession of the dwelling-house, and houses connected therewith, or in her possession of the farming land, but he will permit her to reside there, cultivate the farming land, and use only such timber as may be necessary for fire-wood, and to repair the fences and vesting the said Coman “ with all the rights and powers of a receiver according to law and the rules and practices of this Court, upon his filing an undertaking pursuant to statute for the faithful performance of his duties.</p> <p>“It is further ordered, that said receiver continue to work said Ward gold mine; until the further order of this Court, and that he keep full and accurate account of all his acts and doings, as such receiver, and report the same from time to time to this Court, and that such receiver have leave to apply to the Court from time to time for such further order or directions as may be necessary.</p> <p>“It is further ordered that defendant Jones deliver to the said receiver possession of the said Ward tract of land, together with the machinery and fixtures used in connection with the gold mine; and the defendant Jones will retain possession of the houses and farming lands as above mentioned in this order, except that her farming operations are not to interfere with or obstruct the working of the gold mine on said tract of land.”</p> <p>The defendant objected to any action, upon the motion, for want of jurisdiction in the Judge to entertain it in a county not of the judicial district wherein the cause was depending',, which objection was overruled, and the motion being heard upon the pleadings, affidavits, exhibits, 'and after argument of counsel, the order was made as stated, and'the defendant appealed.</p>

This was a .motion to reinstate an action, and for other relief, heard before .Clark, J., at Fall Term, 1887, of MONTGOMERY-Superior Court. The facts are stated in the opinion.

This was a MOTION made by the execution debtor to set aside an allotment of personal property exemptions, heard before Avery, J., at Spring Term, 1888, of MONTGOMERY Superior Court. An execution issued from the Court of a Justice of the Peace to a Constable, in favor of the plaintiffs, and against the personal property of the defendant.

This is a civil action, which was tried before Merrimon, J., at April Terra, 1888, of GRANVILLE Superior Court.

This was a civil ACTION, tried before Merrimon, J., at May Term, 1888, of the Superior Court of Chatham; County. The action was begun before a Justice of the Peace to recover the balance due upon the promissory note of the defendants, made in favor of the plaintiff, for the sum of $150, dated the 26th day of August, 1880, on which was entered certain credits. The defendants pleaded payment, and particularly that Andrew J. Petty had paid on the same $63.75.

This was a civil action to recover land, tried before Gil-mer¡ J., at Eebruary Term, 1888, of Chatham Superior Court.

This is a civil action, for the recovery of land, which was tried before Boykin, J., at May Term, 1887, of Wilkes Superior Court. The plaintiff showed a grant from the State to one Hols-claw, and a conveyance from the latter to one Cousins. In order to show title out of Cousins, and in himself, he offered evidence of the following facts: Robert Munday was, in 1857, a deputy sheriff under D. C. McCanless, high Sheriff of Watauga County.

This was a special PROCEEDING to procession land, heard upon appeal from the Clerk, by Shipp, J, at Fall Term, 1888, of the Superior Court of Alamance County.

This is a civil action to recover land, which was tried before Clark, T, at Spring Term, 1888, of the Superior Court of Davie County. The plaintiff claimed title under a deed executed to him by M. R. Chaffin, administrator de bonis non, with the will annexed, of David Call, Sr., on the __ day of_, 1886, and in support of his title offered in evidence: 1.

CONTROVERSY, without action, submitted upon a case agreed, heard before Connor, J.,_at July Term, 1888, of Rock-ingham: Superior Court. This proceeding is under section 567 of The Code, and its object is to obtain the decision of the Court upon the question of the validity of a tax imposed on the plaintiff by a municipal ordinance passed by the defendant. The facts agreed are as follows: 1.

Civil ACTION tried before Merrimon, J, at Spring Term, 1888, of HeNdeesoN Superior Court.

This was a motioN for an injunction, made in an action pending in Burke Superior Court, heard before Montgomery, I, at Chambers, on the… Held: and was held, in the county of Burke, under the direction of the defendants— County Commissioners — on the 15th day of May, 1886, to take the sense of the electors of the county, upon a proposition submitted to them at that election to subscribe to the capital stock of the “Southern and Western Air Line Railroad Company,” as allowed…

This was a MOTION for an injunction made in a cause pending in the Superior Court of Surry County, heard before Connor, J., at Chambers, on August 9th, 1888. ' The complaint alleges that plaintiff borrowed of Wachovia Bank $8,300, for which he gave his note, with defendant Pulton as surety, and at the same time executed to defendant Buxton a deed conveying certain real estate in trust, with power to sell the same upon default of payment; that the deed was to indemnify…

<p>This was an issue, joined in a Special ProceediNg for Partition before the Clerk, tried before Clark, J., at Spring Term, 1888, of Davie Superior Court.</p> <p>Upon the trial it was admitted by the parties that Mary Markland died, intestate, in the year 1876, seized in fee simple of the lands in controversy.</p> <p>Mary Markland left surviving her Matthew Markland and Louisa Tucker, the plaintiffs, and Paulina Markland, the heirs-at-law of John Markland, a deceased son, who are defendants in this proceeding, and George Markland, another son, who, since the death of his mother, Mary, has also died intestate, without issue.</p> <p>George, and the defendant, Paulina, and the heirs-at-law of John, had the lands partitioned among themselves, the said Paulina being assigned one-fifth thereof, the heirs of John one-fifth thereof, and the said George three-fifths thereof, he alleging in said proceeding that he was purchaser and owner of the one-fifth that descended to Louisa and the one-fifth that descended to Matthew upon the death of their mother.</p> <p>Louisa and Matthew were not made parties to said proceeding for partition.</p> <p>The defendants allége, in their answer, that George had purchased, and plaintiffs, Tucker and wife and Matthew, had sold and conveyed their one-fifth interest, each, in the land descended from their mother, Mary, to him, which was denied by plaintiffs, and the Statute of Frauds was set up by them in their replication. The defendants admitted there had been no conveyance from plaintiffs to George, nor had there been any written contract executed between plaintiffs and George for their interest in said lands; but they alleged that during the life of the said George, and of his mother, Mary, the former, by parol, bought and paid the said Tucker and wife and Matthew for their expectancy in said lands. As to the purchase from Mrs. Tucker, the defendants’ evidence entirely failed, and the Court directed the jury to find the issues submitted, as to her, “ No.” ></p> <p>The following issue was submitted to the jury as to Matthew Markland, to-wit :</p> <p>“ Did George Markland purchase, under parol contract, the one-fifth expectancy of Matthew Markland in the land; and if so, what was the consideration paid ?”</p> <p>Answer: “Yes; $800.”</p> <p>The personal representative of George Markland was not a party to the proceeding.</p> <p>The plaintiffs asked the Court to instruct the jury:</p> <p>1. This being a transaction with regard to an expectancy, before the jury can answer the issue in favor of the defendants that there was a patol contract and payment of money thereunder, they must be satisfied by a preponderance of the testimony that the alleged sale was fair, and that the consideration paid for their land was full and fair.</p> <p>2. That this being a parol transaction with regard to an ■expectancy in the lands of his mother, Mary Markland, •George acquired no estate therein, either legal or equitable.</p> <p>Both of which instructions were refused by the Court, and the Court instructed that it was not necessary that defendants should allege and prove that the transaction of George with Matthew Markland for his interest in the lands was fair and for a full consideration, but was like any other transaction; they only had to show that the trade was made and that there was a consideration therefor. Plaintiffs excepted.</p> <p>The Court gave judgment, directing that the land be partitioned, and as to the appellant Matthew Markland, it adjudged that his share thereof be charged with the payment of such sums as may be found due the estate of George Markland as the purchase money paid and the improvements placed thereon by the said George Markland, deceased, and to that end it is ordered that the cause be referred to take and state an account.</p> <p>The appellant assigned grounds of exception to the judgment as follows:</p> <p>1. That no estate in the land, either legal or equitable, passed from the plaintiff, Matthew Markland, to the said George Markland in the parol contract as to his expectancy in his mother’s estate, and there could be no claim thereon for betterments or for purchase money.</p> <p>2. If any such claim did exist it would be personalty, and belong to the personal representative of the said George Markland, and not to the defendants as the heirs-at-law of the said George Markland, and the same cannot be enforced and collected in this way and in this proceeding.</p> <p>3. That as the said George was one of the tenants in common with the plaintiffs and the other defendants, if he placed valuable improvements on the land so held in common, all he could have claimed in the partition would have been to have the part he had so improved, without estimating the value of such improvements. And upon his death that is all his heirs-at-law can claim, and his share descends to them thus enhanced in value; therefore there should be no account as to betterments.</p> <p>4. That as the said George occupied the one-iifth he inherited from his mother, Mary, as well as the two shares he claimed to have purchased from the plaintiffs, Mrs. Tucker and Matthew Markland, all three of these shares having been assigned to him in one lot or body, it cannot be determined, as a fact or as a proposition of law, that the improvements were placed on the one-fifth of the plaintiff Matthew, but the presumption of law is that he placed them upon his own interest.</p> <p>5. The reason the law charges for betterments, is that bargainor gets the benefit of them, and it would be inequitable for him to do so without paying for the same. But in this case Matthew Markland is no more benefited than each of the other heirs of the said George.</p> <p>Prom the judgment rendered the plaintiff Matthew appealed.</p>

<p>Appeal — Amendment—Jurisdiction—Dockets—Records—Parties— Vacating Judgments— Void and Irregular Judgments.</p> <p>1. As a general rule the Supreme Court, in the exercise of its appellate functions, cannot acquire jurisdiction of a cause and the parties thereto until a proper transcript has been brought up and duly-docketed therein.</p> <p>2. While it may be the Supreme Court has power to direct or allow amendments to the record below of a cause while an appeal is pending, it is clear that it has no such power after a final judgment therein has been rendered.</p> <p>3. The purpose of the Civil Issue Docket is to have there stated the issues joined between the parties to an action, and only such notes and memoranda as are pertinent to such issues and their preparation for trial should be entered thereon.</p> <p>4. The Minute Docket is intended to and should contain a record of all the proceedings of tlie Court, and such other entries as the Judge may direct to be therein made.</p> <p>5. While in the absence of entries on the Minute Docket those made on the Civil Issue Docket should not be disregarded, yet where there is a conflict between them, nothing else appearing, those on the former must prevail.</p> <p>6. Under the practice-prevailing before the adoption of the present procedure in’relation to appeals, the trial Judge, without the intervention of the parties to the action, made up and stated the case on appeal,-and when filed and transmitted to the Supreme Court it was treated as a part of the record; and where the record proper and the case on appeal — though the latter was not certified as a part of the record — were in conflict in 'respect to a statement of the fact, the case on appeal was allowed to prevail, the records of the- Supreme Court containing some evidence that that Court had proceeded in its decision upon the statements therein made.</p> <p>-7. A case on appeal stated by the parties and intended as a substitute for that prepared by the Court, found among the files of a case disposed of at former term of this Court, will not be recognized in the absence of affirmative proof that it was adopted by the Court.</p> <p>8. The Court 'will not allow amendments to be made in its records — particularly after the long lapse of time — unless the proofs offered in support thereof are strong and convincing.</p> <p>9. While any person having an interest in the subject may attack collaterally a judgment which is void, or may move to strike it from the records as a nullity, yet the general rule is that, only parties to the action will be heard to assail a judgment or record for irregularity.*</p>

This is a civil ACTION, which was tried before Clark, J., at Spring Term, 1888, of Davie Superior Court. Upon a petition filed in the late Court of Equity of the county of Davie by the heirs-at-law of John.

This is a civil ACTION, which was tried, before Clark, J., at Spring Term, 1888, of the Superior Court of Wilees County. The complaint alleges, in substance, that in 1860 the defendant, Daniel Jennings, made and executed a deed, conveying the lands mentioned in the complaint to his son, D. 5.

<p>Processioning — Appeal.</p> <p>1. Appeals to the Supreme Court will only be entertained from final judgments, or from such interlocutory orders or decrees that put an end to the action or seriously imperil some substantial right of the axipellant.</p> <p>2. In a processioning proceeding the defendant filed exceptions to the report of the freeholders, which were overruled, but the Court directed an issue to be submitted to the jury in respect to the location of the disputed land: Held, that an appeal from the judgment overruling the exceptions before the trial of this issue and the final judgment of the Court thereon was premature.</p>

This was a civil aotioN by plaintiff to recover damages for personal injuries, suffered by defendant’s alleged negligence, tried, before his Honor Clark, J., at October Term of McDowell Superior Court for the year 1888. By consent, the following issues were submitted to the juTy: 1. Was tlie plaintiff injured by the negligence of the defendant, as alleged in the complaint ? 2. Did the plaintiff contribute to his injury by his negligence ? 3.

This is a' civil ACTION, commenced in 1877, and tried before Clark, J., at January Term, 1888, of the Superior Court of Rocking-ham County, upon exceptions to referee’s report.

This is a civil ACTION, which was tried before Clark, J., at Spring Term, 1888, of Wilkes Superior Court. John C. Hamby, in the year 1852, conveyed the tract of land described in the complaint, and containing about one hundred acres, to J esse C. Summerlin, then the plaintiff’s husband, from whom, under an execution sale and the Sheriff’s deed, the defendant claims to derive his title.

<p>This is a civil ACTION heard by Clark, J., upon exceptions to report, at Spring Term, 1888, of Allegi-iaNY Superior Court.</p> <p>This action is prosecuted by the numerous plaintiffs mentioned in the complaint on behalf of themselves and others next of kin, and as such entitled to share in the distribution of the personal estate of A. B. McMillan, deceased, r.gainst the defendant F. J. McMillan, his sole surviving administrator for an account and settlement thereof.</p> <p>In the course of the action before the Clerk of Alleghany County, he proceeded to hear the evidence and state an account of the administration, from which it appears the administrator is charged with the aggregate sum of $21,470.76, to be reduced by uncontested vouchers for sums disbursed in the amount of $9,538.72 (by written agreement of counsel filed),, instead of $8,591 94 set out in the transcript.</p> <p>Exceptions taken by both parties were heard and passed upon by the Judge, and upon a recommittal for reformation of the report in accordance with the rulings, it was returned amended 'accordingly and confirmed. The only matter ' brought up for review relates to the vouchers for expenses incurred in prosecuting a suit to establish title to a tract of land bid off by the administrator, as shown in the report, and are, with the added interest, as follows :</p> <p>No. 1.</p> <p>By receipt of G. W. Folk, attorney in sundry cases, May 26, 1877_$ 60 00</p> <p>By interest to January 17, 1888-- 38 31</p> <p>No. 2.</p> <p>By receipt of J. R. Wyatt, Sheriff, for cost in Edwards’ case, October 8,1878- 549 00</p> <p>By interest, January 17,1888- 305 51</p> <p>No. 3.</p> <p>By receipt of R. F. Armfield, attorney, May 20, 1877_ 55 00</p> <p>By interest, January 17,1888- 35 20</p> <p>No. 4.</p> <p>By receipt of J. R. Wyatt, cost Whitted case, September 2,1873- 92 96</p> <p>By interest, January 17, 1888- 79 93</p> <p>No. 5.</p> <p>By receipt of J. R. Wyatt, for cost, October 8, 1877 93 34</p> <p>By interest, January 17,1888_ 57 40</p> <p>No. 6.</p> <p>By receipt of R. F. Armfield, attorney, May 19, 1877_ 30 00</p> <p>By interest, January 17,1888_ 19 20</p> <p>The report of the Clerk in reference to these expenditures finds the facts following, to-wit:</p> <p>1. That the defendant McMillan bid off the “Archibald or Morgan Edwards and McGrady lands,” in his own name, but under a judgment in which his estate was not interested, and prosecuted the suit in his own name, but for the benefit of the estate of A. B. McMillan, for which the costs were incurred, as shown by contested vouchers Nos. 1, 2, 3, 4, 5 and 6.</p> <p>2. That the defendant McMillan purchased said lands, when sold under the Whitted judgment, for the benefit of A. B. McMillan’s estate, and that voucher No. 4 is the receipt Tor the same, taken by him on his said purchase.</p> <p>Upon the foregoing facts, I hold, as a matter of law, that the defendant F. J. McMillan is entitled to credit for said vouchers, to-wit: Nos. 1, 2, 3, 4, 5 and 6.</p> <p>The plaintiffs excepted to this ruling of the Court, and the same was reversed by the Judge and the charges disallowed, and the defendants appealed.</p>

This is a civil ACTION, which was heard before Boykin, J., at August Term, 1888, of BuNCOMBB Superior Court, upon a case agreed. “ The plaintiff is a corporation, created by an act of the General Assembly in 1845, and duly organized in that year, and has existed and acted as such corporation, under the control and management of a board of trustees, from that time until the present. “ The defendant, the Bank of Asheville, is also a corporation, (duly chartered and organized…

This is an appeal from an order made by Boykin, J., setting aside a judgment, at Fall Term, 1888, of SwaiN Superior Court.

This is a Civil action, which was tried before Boykin, J., at Fall Term, 1888, of Haywood Superior Court, upon exceptions to referee’s report.

This is a civil action, which was tried before MacRae, /., at Spring Term, 1888, of Haywood Superior Court.

This is an appeal, from a judgment of Boykin, J.,at Fall Term, 1888, of Haywood Superior Court, adverse to the plaintiff, upon a motion made by defendant to re-tax costs, based upon an affidavit of the defendant, that W. D. Norvell, a witness for plaintiff, had charged mileage from Richmond, Ya., to Waynesville, N. C. The motion was made at Spring Term, 1888, at which term, by an order, it was referred “to J. K. Boone, Clerk of the Court, to hear evidence and report to the…

This is a civil actioN, which was tried before MacRae, J., upon complaint and demurrer at February Term, 1888, of BuNCOMbb Superior Court. The following complaint was filed: 1.

<p>This is a civil action, which was tried before MacRae, J., at June Term, 1888, of Buncombe Superior Court.</p> <p>The Western North Carolina Railroad Company, formed and organized tinder an Act of the General Assembly, ratified on the 15th day of February, 1855 (Acts 1854-55, chap. 228), was invested with “ the same powers to condemn all such lands” (needed in the construction of the road) “ belonging to individuals or corporations as may be needed for the aforenamed purposes as were granted to and conferred upon the North Carolina Railroad Company by their act of incorporation, and shall proceed to condemn such lands in the same manner and to the same extent under the like rules, restrictions and conditions as are prescribed in the charter aforesaid for the government of the said company,” &c.; and, further, that “ in the absence of any contract or contracts in relation to lands through which said road may pass, it shall be presumed that the land over which said road may be constructed, together with 100 feet on each, side thereof, has been granted by the owner or owners to the company, and the said company shall have good right and title thereto, and shall have, hold and enjoy the same so long as it shall be used for the purposes of said road, and no longer, unless the owner or owners shall apply for an assessment of the value of said lands, as hereinbefore directed, within two years next after that part of said road has been located.”</p> <p>This section (29) -has a saving clause in favor of “ infants, Jemes covert, .persons non compos or beyond seas,” and that referred to in the charter granted to the North Carolina Railroad Company (Acts 1848-49, chap. 182, sec. 27), superadds a concluding proviso in these words: “ That the right of condemnation herein granted shall not authorize the said company to invade the dwelling-house, yard, garden or burial ground of any individual without his consent.”</p> <p>The defendant company, in the asserted exercise of the power conferred, entered upon plaintiff’s land and laid out, by stakes placed in the central line, in 1878, designating the course of the track, and late in the year 1880 proceeded, by excavation and banking, to level the ground for the laying the cross-ties and iron rails. In doing this*the servants of the company, under an overseer in charge, entered upon and passed through a garden of the plaintiff, near to his dwelling, within thirty feet thereof, and committed the trespasses for the redress of which this action was instituted on the 15th day of August, 1882.</p> <p>No other proceeding has been brought to obtain compensation from the company for the land thus taken and appropriated to its uses as a railway, and the demand now preferred is for compensation for the damages committed in the alleged trespasses.</p> <p>There was a verdict for the plaintiff, and from the judgment rendered thereon the defendant appealed.</p> <p>The other facts necessary to an understanding of the questions presented are stated in the opinion.</p>

This is a civil action which was tried before Clark, J., at Fall Term, 1888, of McDowell Superior Court.

This was a motion to recall an execution and have satisfaction of a judgment entered, heard before Meriimon, J., beard upon appeal from the Court of a Justice of the Peace, at Spring Term, 1888, of Bukice Superior Court. The plaintiff, in an action begun by the issue of a summons, recovered judgment on March 27, 1886, before two Justices of the Peace of Burke, acting in concert, upon which subsequently execution issued to the Sheriff of said county.

This was an inquiry, as to damages, upon a judgment by default, tried before Merrimon, J., at Spring Term, 1888, of Burke Superior Court.

This was a proceeding to establish a cartway, heard upon a motion to dismiss an appeal from the Board of Commissioners, before Clark, J., at August Term, 1888, of Burke Superior Court.

This is a civil actiox, which was tried before MacRae, J., at March Term, 1888, of Buncombe Superior Court. The material facts of the case, so far as deemed needful to be reproduced in order to a correct understanding of the rulings and exceptions brought up for review by the present appeal, will be found in the opinion of our late Associate, Mr .Justice Akiik, delivered when it was formerly before us— Brittain v. Daniel, 94 N. 0., 781.

The plaintiff, endorsee of a note under seal, executed on April 18th, 1874, by Loyd R. Welch, the defendant’s testator, to W. A. Parker, in the sum of $125, payable three .years after date, sued the obligor and recovered judgment thereon before a Justice of the Peace of the county of Cherokee, on July 17th, 1877, with interest thereon, and for costs.

Special proceeding- for sale of land for partition, tried before MacRae, J., upon issues sent up by the Clerk, at Spring Term, 1888, of the Superior Court of Ci-ierokee County.

This is a Civil action, which was tried before MacRae, J., at March Term, 1888, of Buncombe Superior Court. The following is the case settled on appeal: “ Plaintiff sought to recover of the defendants the price of certain beef cattle alleged to have been sold by him and delivered to defendants as partners in trade, and a sum of money advanced by plaintiff to defendants to pay the freight on said cattle, all of which plaintiff alleged that defendants-promised to pay.

<p>This is an appeal from an order of Gilmer, J., made at August Term, 1888, of the Superior Court of Mecklenburg County, in the matter of the will of Rebecca Annie Haygood.</p> <p>The following is the case settled on appeal for this Court :</p> <p>“This was a petition for probate of a nuncupative will before the Clerk of the Superior Court of Mecklenburg County.</p> <p>Rebecca Annie Playgood died at her residence in Mecklen-burg County, N. C.,' on the 25th day of September, 1887, having, on the day before her death, as alleged by petitioners, made a nuncupative will, in which the petitioners were named as legatees.</p> <p>There was no executor named in the will.</p> <p>On the day of the filing of the petition for the probate of the will, to-wit: on the 23d day of March, 1888, the Clerk, in conformity with the prayer of petitioners, caused the witnesses to said will to be brought before him, and said witnesses then and there reduced the will to writing, and made before him the affidavits which appear in the record.”</p> <p>All the other material facts appear in the following order, made by his Honor Judge Gilmer, at the August Term, 1888, ■of the Superior Court of Mecklenburg County:</p> <p>“ This cause coming on to be heard upon the appeal by the propounders from the order of ihe-Clerk of the Superior Court refusing to allow the propounders to introduce testimony tending to establish and prove the said will, the Court finds the facts to be as follows:</p> <p>That the said will was made on the 24th da,§ of September, 1887; that said will was reduced to writing on the 23d day of March, 1888; that on the 23d day of March, 1888, a petition was filed in due form of law for the probate of said will before the Clerk of the Superior Court by the propound-ers; that on said day and at the time of the filing of the application for the probate of the will, an order was made by the Clerk citing the next of kin of the testatrix to appear to contest said will, should they think proper, as required by law, which citation was duly published for six successive weeks in the ‘ Charlotte Democrat,’ a newspaper published in the city of Charlotte; that at the expiration of the said publication of the citation, the propounders appeared in Court and offered testimony tending to establish and prove the said will; whereupon, certain of the next of kin appeared before the Clerk and objected to the introduction of testimony to establish the said will, upon the ground that the said alleged will was not put in writing within ten days from the making thereof; and, further, that the order of publication made in the cause within six months from the making of said will, calling in the next of kin of the testatrix to contest said will, if they saw proper, did not expire within six months from the making of said will, which objection was sustained by the Clerk, who, thereupon, refused to allow the propounders to introduce testimony offered for the purpose aforesaid; and the matter having been debated in open Court by counsel for the respective parties, it is thereupon ■ordered, adjudged and decreed by the Court that the said will was offered for probate within the time required by law, and the case is hereby remanded to the Clerk of the Superior Court to the end that the said will may be admitted to-probate and that further proceedings may be had thereon according to law.”</p> <p>From this order the parties interested in opposition to the will proposed for probate, having excepted, appealed.</p>

<p>This is a civil ACTION, which was tried befqre Boykin, J., at February Term, 1888, of UNION Superior Court.</p> <p>This action, commenced in January, 1886, is prosecuted to recover compensation for trespasses alleged to have been committed by the defendant upon land particularly defined and described in the complaint, belonging to the feme plaintiff, and to prevent their threatened repetition by a perpetual injunction. The plaintiffs state that at a special term of the Superior Court of Union, held in August, 1884, in an action there pending, in which they were plaintiffs and the present defendant and others were defendants, and there tried, it was adjudged that the plaintiffs were the owners and entitled to recover possession of the same land as that on which the trespasses were committed and the title to which the defendant now claims under a grant from the State issued to him on December 10th, 1885, for a larger tract of which that now controverted forms a part.</p> <p>Upon the trial the plaintiffs introduced the record of the former suit, and after proving the trespasses, it being admitted that they were upon the same land that was recovered in the former action, rested. The defendant undertook to show title in himself, and for this purpose offered the grant in evidence.</p> <p>The plaintiff objected, on the ground that the adjudication in the previous suit operated as an estoppel, and was conclusive between the parties as to the title. The Court sustained the objection, aud the defendant excepted.</p> <p>The complaint in the former suit sets out in full the will of Richard Nash, the first and fifth clauses of which, embracing the land in dispute, are as follows:</p> <p>“ 1. I give my wife Julian the house and land whereon she now lives; also the crop that is on hand, two cows and calves, two sows and pigs, and ten head of the first choice head of hogs, twelve head of sheep, one beef cow, and all of the geese, all household furniture, the thresher and fan to remain where it is.</p> <p>“5. I give unto my son James Nash the land whereon I now live at my wife’s death; also for James to live on said land, one horse and fifty dollars in money, one cow and calf and ten dollars in money.”</p> <p>The complaint further alleges, in article 3, that at the time of the death of the said Richard Nash he was seized and possessed in fee simple absolute of the tract of land more particularly described in the eighth article, and in article 4? that the tract is embraced in the devises made in the articles recited.</p> <p>It alleges that the two devisees survived the testator, and afterwards the said James Nash died intestate, leaving him surviving, his widow, the plaintiff Elizabeth E., since intermarried with Nimrod J. Bickett, and an infant child of her first marriage; and thereafter said infant Sarah died, leaving no brother or sister, and thence her estate descended to her mother under the law of descent — The Code, § 1281, Rule 6— and that the widow of the testator died in the year 1881. Thus the plaintiffs derive their title — or rather that of Elizabeth E. — to the land.</p> <p>In the answer it was admitted, in article 1, that the allegations made in articles 1, 2, 3 and 5, are true, and then it denies that the tract in dispute “ is included in the land' mentioned in items 1 and 5 of the will.” It, for want of information, denies that James Nash is dead ; or if he is, that his death preceded that of his infant daughter, and that the intestate ever owned the land, or had any interest therein other than as a tenant in common with the heirs-at-law of the testator, and proceeds to controvert other averments in the complaint.</p> <p>There is a separate and additional answer put in by the defendants, to which we advert only to say that the defence, or counter-claim set up as a defence, seems not to have been considered in the further conduct of the cause.</p> <p>The record, wdthout setting out the issues raised by the pleadings —if, indeed, any were drawn in form and submitted to the jury — states in general terms that all the issues, that is, matters in controversy, were found by the jury in favor of the plaintiffs, and upon the verdict judgment was entered up in the following terms:</p> <p>“ This eause coming on to be heard before his Honor Jas. O. MacRae, Judge, and a jury, and being heard, and issues having been found in favor of the plaintiff, and that the feme plaintiff is entitled to the possession of the land in controversy, it is adjudged that the plaintiffs are entitled to the immediate possession of the following described land .{giving the same boundaries as in the plaintiffs’ complaint in the present action), and that the plaintiffs do recover of the defendants the costs incurred for the attendance of their witnesses. It-is further adjudged that a writ of possession issue,” &c.</p> <p>From the judgment rendered in the present action, adjudging that plaintiffs are entitled to possession and perpetually restraining the defendant, the latter appealed.</p>

This is a CONTROVERSY, submitted to the Court without action, as allowed by the statute (The Code, §§ 567-569), and heard before Boykin, J., at February Term, 1888, of Meoic-ltcNrurg- Superior Court. It appears that the testator of the defendants, William Patterson, died in the county of Mecklenburg, leaving a last will and testament which was duly proven.

<p>Civil action, tried before Boykin, J, at Spring Term, 1888, of Mecklenbueu Superior Court.</p> <p>This action, commenced on July 10th, 1885, by the service of a summons on H. W. Harris and R. H. Harris — as to the last named of whom a nolle prosequi, was entered before the trial — is prosecuted to recover a balance alleged to be due for goods, wares and merchandise sold and delivered, the items whereof are set out in an exhibit annexed to the complaint. The complaint was met by a demurrer, and this being overruled, the defendants put in separate answers-in each of which respondents deny their liability to the-plaintiffs, and aver that the debt demanded has been paid.</p> <p>The only witness who testified in behalf of the plaintiffs-was R. N. Tiddy, one of the plaintiffs, whose testimony tended to show that the plaintiffs, Tiddy & Bro., had sold merchandise to A. M. Waddell and the defendant H. W. Harris, as set out in the complaint, and the defendant and A. M. Waddell were indebted to plaintiffs, as set forth therein.</p> <p>The defendant, seeking to establish his plea of payment, introduced as a witness one H. A. Deal, who testified, on his direct examination, that he asked R. N. Tiddy, in the fall of 1883, if the debt sued on had been paid, and he said it had; he didn’t say how it was paid, nor by whom. On his •cross-examination, the witness said : “ This was in September, 1883, in Tiddy’s office. H. W. Harris said he had not paid it. Waddell and I had had a conversation, and he said this debt was paid.” And on his re-direct examination the witness said : “ I saw Col. Waddell at Warm Springs ; he said to me he had retired from the newspaper; that he was a public man and could not afford to leave an unpaid debt.” ' ‘</p> <p>The defendant testified : “ I went to Mr. Tiddy’s office in June, 1884, and said: ‘I understand, Mr. Tiddy, that all that debt has been paid.’ He replied: ‘ You know how that is,’ and went on to talk about his not being a free agent. I told him I didn’t know; that I had been informed it had been paid. He did not deny it.” And on his cross-examination this witness stated that H. A. Deal had told him that this debt was paid.</p> <p>This was all the testimony introduced by the defendant, to establish his plea of payment.</p> <p>The plaintiffs replied thereto by recalling R. N. Tiddy, who said : “ I said to Deal that the debt had been paid, because I wanted Col. Waddell’s interest in the contract. I toldfone W. C. Morgan to give Waddell his check for $1,000, and¿I would cover it. I gave him my check. Morgan gave Waddell his check and Waddell gave it to me and I got his interest. I have not received any money.from any party on ithis'account.” And on his cross-examination, he said: “I-put the Waddell check iu bank to our credit. I credited part to the book-store account and part to the paper-mill account in settlement of these claims. I will not say I did not tell Deal the debt was paid. We got credit in bank on Waddell’s check. I charged the debt up again when I signed my cheek. I marked the claim satisfied in order that I might get Waddell’s interest.”</p> <p>There was no other evidence relating to the payment of the debt, except what is above stated.</p> <p>After close of the testimony and during the argument of counsel, his Honor stated to the counsel th'at he should charge the jury that if they believed the testimony, the defendant had established his plea of payment, and the jury should find that issue in his favor, and thereupon the plaintiffs asked to be allowed to enter a nonsuit, which request was granted, and judgment of nonsuit accordingly entered, and the plaintiffs appealed.</p>

<p>This is a civil action, which was tried before Boykin, J., at February Term, 1888, of Mecklenburg Superior Court.</p> <p>The action was brought to recover a tract of land, the plaintiff claiming the same under a clause of the will of Wm. Patterson, in which he devises to her “ the plantation on which I now live,” and the feme defendant claiming the same under another clause of said will in which he devises to her his “ Reid plantation.”</p> <p>There was evidence introduced by the plaintiff tending to show that the testator considered the locus in quo a part of the plantation on which he lived, and intended the same for the plaintiff, while there was evidence introduced by the defendants tending to show the contrary, and that it was considered by him as part of his Reid plantation and intended for the defendant Leonora.</p> <p>The contest was mainly over the question as to what lands were embraced in the “ Home ” and “ Reid ” tracts, and where was the dividing line between them.</p> <p>The jury rendered a verdict for the defendants, and from the judgment thereon the plaintiff appealed.</p> <p>The other facts necessary to an understanding of the points decided in the appeal are stated in the opinion.</p>

<p>This is a civil action for the recovery of land, which was tried before Gilmer, J, at Fall Term, 1888, of Mecklenburg Superior Court.</p> <p>It was in evidence that the plaintiffs were the children and heirs-at-law of Josiah McCall, who died in 18G4. They introduced (1) a deed from John E. Moore to Josiah McCall, their father, dated October 22d, 1858, and registered September 2d, 1884. This was in form a fee-simple deed and the lands described therein are the lands in dispute; and (2) a deed from A. M. Moore, the widow of John E. Moore, to the defendant, William S. Wilson, and M. C. Wilson, the ancestor of the other defendants. 'Phis deed was dated the 16th day of February, 1882, and registered two days thereafter. It was in fee-simple and described the lands in dispute, and added that the same was made subject to the dower of C. C. McCall, who is the widow of Josiah McCall.</p> <p>The defendant then introduced testimony tending to show that John E. Moore purchased the land at a sale under execution as the property of Matthew McCall, and that he exe-cutéd a deed conveying the land to said Matthew McCall, and that the defendant W. S. Wilson purchased the land from A. M. Moore, the widow of John E. Moore, in 1882. It ■was also in evidence that Josiah McCall was a very poor man and never owned any land. The defendant introduced a deed from W. C. Maxwell, administrator of John E. Moore, deceased, to A. M. Moore and her heirs, dated February 16th, 1882, reciting a sale made November 1,1880, under proceedings to make assets, and the proceedings finder which the land was sold. This deed embraces the land in dispute. Also a deed from S. C. McCall, the widow of Josiah McCall, dated February 3d, 1882, conveying to the defendant, W. S. Wilson, all her right of dower and interest in the land in dispute.</p> <p>Plaintiffs then introduced S. C. McCall, who testified “ that she saw the deed from John E. Moore in the possession of her late husband Josiah McCall. He had Ian-1 in Union County, sold it, brought back the money. She saw him start off with the money and bring back the deed. This was objected to by the defendant, under section 590 of The Code, but admitted, and defendants excepted.”</p> <p>“ D. H. McCall, one of the plaintiffs, testified that he had not resided on the land since the war. That he saw Pen-ninger pay his father $175 for the Union laud. Objected to by defendants. Objection overruled, defendants excepted.”</p> <p>“The defendants insisted that -they were entitled to judgment because the deed from Moore t> Josiah McCall * * * * was not registered within the time prescribed by law,” and was void as against the dee 1 from the administrator of Moore, under which they claim as innocent purchasers for value. His Honor reserved his opinion ón this question till after verdict.</p> <p>There was a verdict finding the issues in favor of the plaintiffs and judgment for the plaintiffs, and appeal by the defendants.</p>

This is an appkal from a judgment of Boykin, J., rendered at Spring'Term, 1888, of the Superior Court of Mkokxenjbuik; Cóuntjr, setting aside an order of reference to arbitrators, made at Spring Term, 1887. The order of reference was as follows : “ In this case it is agreed between the parties that the whole matter in dispute, law and fact, be submitted to the J. II.

<p>Constitution — Mechanics’ and Laborers’ Liens — Contractor and Sub-contractor — Application of Payments.</p> <p>1. In the application of payments the creditor may, and if he does not, the law will, appropriate them to the most precarious debt, in the absence of any direction to the contrary from the debtor.</p> <p>2. Where payments are made upon a running account they will be applied to the preceding debit items in the order of their date.</p> <p>3. The constitutional provision for giving to mechanics and laborers liens for their work, and the statutes enacted in pursuance thereof, and also giving liens for materials furnished, extend to and embrace contractors who do not themselves perform the labor or furnish the materials used, but procure it to be done through the agency of others.</p> <p>4. The lien given to sub-contractors by the statute of 1880 — The Code, §§1801-1803 — does not supersede that in favor of the contractor, but only gives it a preference to the extent of the amounts which may be due the sub-contractor, provided it does not exceed the sum which may be due the original contractor.</p>

<p>Contem.pl — New Trial — Slander—Damages—Pleading.</p> <p>1. Where the party to an action upon the trial was guilty of such gross misbehavior as induced the Court then to issue a rule against him to show why he should not be attached for contempt: Held, that whatever prejudice he may have suffered thereby in the minds of the jury was attributable to his own fault, and it was not error to refuse him a new trial.</p> <p>2. In an action by a woman for slander, for words alleged to have been spoken, amounting to a charge of incontinency, the plaintiff may, in the absence of proof of actual special damages, recover compensatory damages; and upon proof that the words were spoken with malice, or that the conduct of the defendant was marked by gross and wilful wrong, or was oppressive, vindictive damages may be awarded.</p> <p>3. In such action it is not necessary that the complaint should allege that the words were “wantonly and maliciously ” uttered.</p>

This is a SUMMARY proohediNü for the assessment of damages, heard by MacRae, J., upon case agreed, at August-Term, 1887, of CLEVELAND Superior Court.

This is a civil ACTION, pending in the Superior Court of MeckleNburg County, heard upon a motion for an injunction before Boykin, J., in Chambers, on March 2d, 1888.

This is a civil ACTION, which was tried before Boykin, J., at Spring Term, 1888, of Polk Superior Court.

This is a civil ACTION, which was tried before Clark, J., at Pall Term, 1888, of Bukkl Superior Court.

<p>Specific Performance — Contract—Statute Frauds — Pleading — Joinder of Causes of Action — Tendtr.</p> <p>1. The plaintiff brought an action for the specific performance of a contract to convey land; the defendant answered, setting up an abandonment and rescission of the contract; the plaintiff replied, admitting the rescission, but alleged that the defendant agreed to reimburse him for improvements made while he was in possession,, and demanded judgment therefor: Held, that this was not such, a departure from the original cause of action as to warrant the dismissal of the action, and as the two demand the same transaction, they might be determined in the same action.</p> <p>2. That the contract to reimburse the expenditures for improvements, &c., was not within the operation of the Statute of Frauds.</p> <p>3. In an action for specific performance, where the defendant denies the-equity of the plaintiff, after a trial upon the issues joined, a tender of deed and demand for payment of purchase money comes too. late.</p>

Civil action, to recover possession of land, tried before Merrimon, J., at Spring Term, 1888, of Burice Superior Court. The case on appeal is as follows: “ To show the location of the land in dispute the plaintiffs introduced as a witness D. F. Denton, who testified that he was County Surveyor of Burke; that he surveyed the calls of the grant under which plaintiffs claim in the fall of 1881. Witness was then handed a map of the survey made by him in 1881.

This is a civil action, which was tried before Merrimon, J., at Spring Term, 1888, of Burkk Superior Court. This is an action to recover the land specified in the complaint. On the trial the plaintiffs put in evidence and relied upon a paper writing purporting to be a Sheriff’s deed founded upon a sale of the land in question under executions in his hands made on the 16th day of April, 1870.

This action was begun on February 26th, 1887, and prosecuted to judgment before a Justice of the Peace of Burke-County, and removed by defendant’s appeal to the Superior Court of the county, and was tried before Merrimon, J., and a jury, at March Term, 1888.

This is a summary PROCEEDING, to establish a road, heard upon a motion to dismiss defendant’s appeal from the order of the Board of Commissioners, before Clark, J., at August Term, 1888, of Burkic Superior Court.

Civil aptiox, tried before Merrimon, J., at June Term, 1888, of Durham Superior Court. The action is to recover the balance due on an alleged contract for the sale and deliver}' of a lot of lumber by the plaintiff to the defendant. The latter denies that any such contract was entered into, and further sets up a counter-claim, based upon allegations of fact contained in his answer, not material to be stated. Two issues were submitted to the jury : 1.

<p>From Davidson Superior Court.</p>

IndictMENt for selling liquors without license, tried before MacRae, J., at Spring Term, 1888, of the Superior Court of Macon County. The indictment contained three counts: 1. The first charged the defendant with unlawfully selling and retailing spirituous liquors to Joseph Beasley, by measure less than a quart, to-wit: by the pint, not having a license, &c. 2.

Indictmicxt for violation of the Local Option Law, tried before Montgomery, J., at September Term, 1887, of Tran-.sylvaNIA Superior Court. Held: as alleged in the bill of indictment, there was-seventy-four votes cast for license and eighty-four for prohibition, and this was the return of the judges of said election.

Inpictmekt for slander of an innocent woman, tried before Meares, J., at October Term, 1888, of the Criminal Court of Mecklenburg- County.

<p>This is a CRIMINAL ACTION, which was tried before Clark, J., at Fall Term, 1888, of McDowell Superior Court.</p> <p>The defendant is indicted for the crime of perjury.</p> <p>The following is so much of the indictment as is necessary to report here:</p> <p>“The jurors for the State, upon their oath, present that, heretofore, to-wit: on the 22d day of September, A. D. 1884, at and in the county of McDowell, a certain criminal action, wherein the State of' North Carolina was plaintiff and George Turner, John Turner and Mary Turner were defendants (the same being an indictment against said defendants for an assault and battery upon one George Murphy with deadly weapons, to-wit: a gun, a rock and a pistol), was pending and at issue in the Superior Court of McDowell Count}', and at said Fall Term of said Superior Court of said McDowell County the aforesaid criminal action was tried by and before his Honor J. A. Gilmer, Judge presiding, at said Superior Court, and a jury, said Superior Court having competent jurisdiction to try said criminal action. And that upon the said trial, so then and there had as aforesaid, one Eliza Murphy, late of the county aforesaid, appeared and was produced as a witness for and in behalf of the said State of North Carolina, the plaintiff aforesaid, and was then and there duly sworn and took her corporal oath on the Holy Gospel of God, before the said J. A. Gilmer, so being Judge as aforesaid, to speak the truth, the whole truth and nothing but the truth, touching and concerning the premises aforesaid, to-wit: the matter then'in question on the trial and action aforesaid., the aforesaid J. A. Gilmer, as Judge of said Superior Court as aforesaid, then and there being sufficient and competent power and authority to administer the said oath to the said Eliza Murphy. And that then and there, upon the trial and action aforesaid, it became, and was a material question in the same, whether the said John Turner, one of the defendants aforesaid, had and used, or attempted to use, a certain pistol in committing the assault and battery charged against the said defendant in the indictment.and criminal action there being tried as aforesaid And the jurors aforesaid, upon their oath aforesaid, present that the said Eliza Murphy, being so sworn as aforesaid, not having the fear of God before her eyes, but being moved and seduced by the instigation of the devil, and wickedly devising and intending to prevent the due course of law and justice, and unjustly to injure and aggrieve the said defendant John Turner, then and there, on trial and action aforesaid, upon her oath aforesaid, unlawfully, falsely, corruptly, knowingly, wilfully, feloniously and maliciously, by her own act and consent, before the said Judge and jury aforesaid, did depose and swear and give in evidence (amongst other things) in substance and to the effect the following, that is to say, that the said John Turner, in committing the assault and battery aforesaid, had and used or attempted to use a certain deadly weapon, to-wit: a pistol, whereas in truth and in fact the said John Turner did not have or use, or attempt to use, any pistol in committing the assault and battery as charged in the indictment and criminal action as aforesaid,” &c.', &c.</p> <p>The defendant pleaded not guilty to this indictment. On the trial there was a verdict of guilty. Thereupon her counsel moved in arrest of judgment and assigned as grounds of his motion:</p> <p>1. She avers that the proceeding in' which the false oath is alleged to have been taken is not substantially set forth in the indictment as required by the act in such case made and provided.</p> <p>2. That the alleged false oath is not sufficiently negatived.</p> <p>3. That the alleged faRe oath is not stated with sufficient precision in simply averring that the defendant swore that said .John Turner had and used in the assault a pistol, without showing how she swore that he used it and for what purpose he used it.</p> <p>The. motion was denied, as was also a motion for a new trial, and there was judgment against the defendant, from which she appealed to this Court.'</p> <p>The following is so much of the case stated on appeal as-it is necessary to r’eport:</p> <p>Upon the trial the State introduced several witnesses who swore that on the trial of the case of the State against John Turner and others, stated in the indictment in this case, the defendant appeared as a witness, and some of them swore that defendant stated that John Turner presented a pistol at her, and others stated that she swore that he presented the pistol at her and also at George Muiphy, George at the same time being in the hands of the defendant, and was attempting to get to John Turner, but was detained by the defendant.</p> <p>Defendant’s counsel insisted that if she swore that said Turner presented the pistol at her she would not be convicted on this trial, as the oath would not be material, and if she swore that it was presented at both it would not help the matter, for the reason it would not support the charge in the indictment, and asked his Honor thus to submit the question. But his Plonor declined to do so, and the defendant •excepted.</p>

INDICTMENT for cruelty to animals, under § 2482 of The Code, tried before Boykin, J., and a jury, at August Term, 1887, of Watauga Superior Court. The fads are sufficiently stated in the opinion.

<p>Larceny — Evidence.</p> <p>Upon the trial of an indictment for the larceny of a horse, there was testimony tending to show that the horse was stolen at night; that the defendant lived near ; that he and one S. were seen in the vicinity the day previous ; that tracks leading from the stable from which the horse was stolen, accompanied by those of one person, joined the tracks of another and a mule in a road near by ; that next day the horse and a mule were seen in the possession of S. some twenty miles distant, where the defendant met him, and without inquiring as to where the horse and mule were obtained, or for what purpose they were being' taken away, agreed to assist in conveying them to a distant point, and did aid in removing them : Held, to be sufficient evidence to be submitted to the jury to be considered upon the question whether the defendant had stolen or aided in stealing the property.</p>

Indictment, for unlawfully selling spirituous liquors, tried before Connor, J, at July Term, 1888, of the Superior Court of Rockingham County.

This is an appeal, by the Clerk of the Superior Court of the county of Sukry, at Spring Term, 1888, from the refusal of his Plonor, Clark, J, to allow a motion to retax costs. The appellant is the Clerk of the Superior Court of the county of Surry. In the criminal action of State v. Johnson, pending in that Court at the November Term thereof of 1887, a nolle prosequi was entered.

<p>Assault and Battery — Deadly Weapon — Serious Injury — Jurisdiction.</p> <p>Where the indictment charged an assault and battery “ with a deadly weapon, to-wit: a certain stick, to the great damage of the said,” &c., but did not set forth the dimensions of -the stick, nor the extent and character of the damage, and it appeared upon the trial that the offence was committed less «than six months before the finding of the bill: Held, that the Superior Court did not have jurisdiction.</p>

INliotment, for trespassing on land after being forbidden to do so and without license therefor, under § 1120 of The-Code, tried before Clark,■ J., at Spring Term, 1888, of the Superior Court of .Stokes County.

INDICTMENT, charging the defendant with being accessory before the fact to the crime of arson, tried before Philips, J., at August Term, 1888, of the Superior Court of Rowan County. One William Thrasher was charged with the felonious, wilful and malicious burning of the dwelling house of one Theo.

This is a CRIMINAL action, tried before Avery, J, at Spring Term, 1888, of MontgoMerv Superior Court.

INDICTMENT for embezzlement, tried at May Term, 1888, of Rowan Superior Court, before Montgomery, J. The defendant is charged with the offence of embezzlement in the form following:' The jurors for the State, upon their oath, present: That Bettie Wilson, late of the county of Rowan, on the 1st day of September, in the year of our Lord one thousand eight hundred and eighty-seven, with force and arms, at and in the county aforesaid, being then and there the agent and servant…

The defendant is charged with being the father of a bastard child, in a proceeding originally commenced before a Justice of the Peace in the county of CUMBERLAND, and carried by appeal to the Superior Court and tried before Philips, «71, at Fall Term, 1888, of said Court.

This was an indiotment against the defendant, who was one of the policemen of the city of Wilmington, for an assault and battery, tried in the Criminal Court of New Hanover County, before Hears, J., at September Term, 1888.

INDICTMENT for false pretence, tried before Shepherd, J., at Spring Term, 1888, of Onslow Superior Court.

This is a CRIMINAL action, which was tried before Merrimon, J., at June Term, 1888, of Durham Superior Court.

INDICTMENT, for unlawfully selling spirituous liquors, tried before Merrimon, J., at Spring Term, 1888, of the Superior' Court of Durham County. The defendant was indicted for selling spirituous liquors on Sunday. The indictment was in proper form, and there-was a verdict of guilty.

<p>Indictment — Entering House with Felonious Intent — Evidence— Larceny.</p> <p>1. An indictment for entering a house with an intent, to commit a felony or other infamous crime — The Code, § 996 — is not defective because it charges an intent to commit'more than one offence.</p> <p>2. Where the testimony tended to show that money was missing from a drawer of a bureau in a bed chamber; that the drawer was usually locked, but frequently was not thus secured; that the domestic servants of the family had access to the chamber; that the defendant was a journeyman carpenter, and had often been employed upon jobs about the house and was familiar with its construction,. and knew where money was kept; that on one occasion, when not employed at work, he was discovered in an unoccupied chamber, behind the door and a box in such a position that he could observe the door of the.room in which the money was deposited ; that upon being discovered, he said he had come to get a balance .due for work; that there was nothing so due him, and that there was found on his person a key which would unlock the drawer in which the money was deposited : Held, that while none of these •circumstances, standing alone, were sufficient evidence of the defendant’s guilt, yet, when taken together and as a whole, they did constitute evidence which was properly submitted to the jury upon the question of the intent with which defendant entered the house.</p>

INDICTMENT for murder, tried before Avery, J., at September Term, 1888, of the Superior Court of Wayne County. There was a verdict of guilty, and the defendant appealed. Only two questions are presented in the record: 1.

<p>This is an indictment for larceny, tried before Connor, J., at Spring Term, 1888, of Greene Superior Court.</p> <p>The defendant was charged with stealing a hog belonging to one Eli Dorgan, and upon the trial of his plea of not .guilty was convicted of the offence, and sentenced to confinement in the State prison for the term of five years, beginning with the 2d day of April, 1888. After the return of the verdict his counsel moved to set it aside for alleged misconduct of the jury, to prove which he examined orally one Thomas Harney, whose testimony, under the findings of the Court, established the following facts :</p> <p>The witness was a regular deputy of the Sheriff, and after being sworn was put in charge of the jury. On several occasions he was in the room where the jurors were, and heard part of their deliberations and witnessed the taking of several ballots, in all of which a majority were for a conviction of the defendant, but no unanimity was reached. One of the jurors then proposed that the majority should rule, and this was assented to. Upon a ballot then following, one of the jurors who had favored an acquittal changed his vote and gave it against the defendant, two of them adhering still to a vote for an acquittal. They then “ reasoned together,” during which the witness left, and another -deputy, one Edwards, took his place and stood at the door of the room. After an absence of about five minutes the witness blarney returned and resumed his charge, and soon thereafter he was informed by the jury that they had agreed upon a verdict. The jurors then came into Court, and the foreman, on their behalf, gave in a verdict of guilty. They were thereupon polled at the instance of the defendant’s counsel, and each for himself gave the same response.</p> <p>At one time eleven of the jurors, under the officer in charge, left for dinner, and one of their number remained in the room in charge of another sworn deputy. There was no evidence lending to show, nor was there any suggestion that either deputy conversed with any juror in respect to the testimony, the defendant or the verdict.</p> <p>The counsel then offered one of the jurors to testify in reference to the verdict, which the Judge refused to permit.</p> <p>The counsel further proposed to prove by a witness, not of the panel, that during the retirement of the jury some of them were improperly approached' and spoken to about the case by an outside party. In the exercise of his discretion, the Judge declined to hear further testimony, and refused to set aside the verdict, for the reason that it did not appear that the jury had rendered a majority verdict, nor that the jury had been tampered with, the Court being of opinion, however, that the conduct of the officer was not proper, and so stating.</p> <p>The grounds upon which the Court .was asked to set aside the verdict, in order to a new trial, are:</p> <p>1. For that the verdict was the result of the surrender of the convictions of the dissenting jurors to the opinion of the larger number of them, and was not in reality unanimous.</p> <p>2. For that the Judge refusd to hear the affidavit offered to show a tampering with the jury.</p> <p>3. For that he did not rule that the separation of the one juror from the body does not vitiate the verdict; and</p> <p>4. That the testimony of a juror was refused to show misconduct.</p>

Indictment for murder, tried before Merrimon, J., at Fall Term, 1888, of the Superior Court of Sampson County. 'I here was a verdict of guilty, judgment, and appeal. The prisoner, Amma Ellis, was charged in the indictment with the murder of James Allen Ellis. It was in evidence that he went to the house of the deceased, who was his father, on the evening of September 4th, when the sun was about one and three-quarters or two hours high.

This was an indictment for forgery, tried before Avery, J., at July Term, 1888, of Wake Superior Court.