Volume 60 — North Carolina Reports

Bryan, the applicant, petitioned to the Supreme Court, at the present term, for a writ of habeas ooepus, alleging that, being between the ages of eighteen and thirty-five years, he procured a substitute, who was duly received by Peter MaMett, then Major in command of the conscript camp, near Raleigh, and the chief enrolling officer of the State, and that the said Major Peter Mallett, on the 29th day of July, 1862, gave him a discharge for the war; that the age of the said…

<p>-A ¡substitute never liable to conscription, being 50 years of age, is not dii-charged from the service, by the conscription of his principal under the aet <»f Congress (t 4lh January, 1864.</p>

<p>A', dies in'wta'e seized of land in fan simple hi' t’ U Slate, which descend) to her heir fit law resident iri another fcfiate. IDs crodito'S here, me rat attnchmentrs _w! ioh tra levied on the land. and final judgments are obtained therein 'W.d writs cf Vendí tv-ni ICxfionas ism <i *ibelaud is sold by B, the adnji.v-trntor cf A. under ati order of the County Court, for the payroeni of the balds, of the intestate. - After pa\ ment oí them, the ad.«iin->tr,atoT is bound in equity to pay the rest due to the creditors who alian >.eu the land, qotwithstanding that the admiuh.tr.if nr has pui-I :t b; vr.fi r of the non-resident debtor to another bona fide creditor.</p>

<p>This was a writ of certiorari from this Court sued out hy Capt. Brawley in order to review the decision of Chief Justice Pearson on a writ of habeas corpus» at the .suit of Tobias Reidor against John M. Brawley, a captain in the army of. the Confederate ¡States, complaining of being illegally restrained of his liberty hy Capt. Brawley. It appeared on the trial before the Chief Justice, th/it the petitioner had been, enrolled under the act-of Congress of thft l^fh of February, 1864, at? one of the senior reserves*, he being then between the ages of 45 and 50, and that he .became 50 years old on the-7 of October, 1864, and he wo? discharged.</p>

<p>This was an appeal from an •interlbcutory order msde by '.Kbhe, J., at Fall Term 1862, of llowan Superior Court, dissolving- an injunction granted ia the vacation before.</p> <p>The order in the court below was made on motion upon the coming in of the answer.- Every part of the bill and answer necessary to the full understanding of the case is stated in the opinion of the court, except that the- answer contains a positive and direct denial of any fraud or imposition on the plaintiff, and of any agreement or understanding that the conveyance was* not to-be an absolute sale. •</p>

<p>Comía of Equity have no jurisdiction to reform a marriage settlement by which property is conveyed to the generate use of the wife, when the bill alleges no fraud, impisitiou, error or mLtake, in respect of the contents of the deed or its execution, and there is no allegation that any provision of the deed has been found to be hurtful to the fund, prejudicial to the interests of the parties, or of marked inconvenience in execution.</p>

<p>in the year 1852, a tract of land belonging-to one In gold, sui infant, containing ten acres on which there was a mil;, was sold by order of the Court of Equity of Alamance connty, and bought by John S. Fogleman at the price of $308, for which he gave his bonu payable to the Clerk and Master of the court with Henry Fogleman and others as his sure-" ties. . •</p> <p>• In 1.854 a tract of nine acres adjoining the ten acre tract, (which on Ingold’s death had descended to. his heirs,) was sold by order oí the same court, and was purchased by John S. Fogleman for $80, for which lie gave his bond with Henry Fogleman and others* a3 sureties.'</p> <p>In 1857 judgment having been recovered against John S. Fogleman by the Clerk and Master, on his bond for $306 and execution issued, the execution, and other-executions against the same defendant were levied on the nineteen acres ani on another tract of land belonging or supposed to belong'to the defendant; George McEay, one of the plaintiffs, was'the purchaser of- the nineteen acre tract from tho ■ Sheriff at the price of $405 ; ho assigned his bid to the other plaintiff, Michael 'ShnStuer, who paid the 'money to the Sheriff an 1 ionx a deed ib’’ the land, which did not set forth what interest in the land Jvn Fogleman hud at the time of the levy and sale, or what interest in the laud was convoyed to tSvo purchaser, except that it was bargai ed. and sold to him and his heirs. Shoilner too’" ■possession under the depd- . , ■</p> <p>In 1855 á bill was filed by Henry .Fugleman and. his eo-surotiei against John B. Fogleman, alleging that John having become insolvent, Henry had been forced to.pay the purchase money, except $50 paid by John, praying that the 'mill and ton acre tract bo sold tor his indemnity. On reference to the Clerk and Master, he, reported that Henry, had paid the sum of $377 94 as the surety of John, an order of s lie was made and William Hudson became tho purchaser at $306, for which be gave his note with a surety.</p> <p>Henry Fogleman also-filed a bill in respect to the nine acre tract, alleging that he had beea forced to pay the pur-«base money $95, and that he had assigned his equity to Patterson and .Bason ; whereupon it was ordered that tb« Clerk and Master make title to them; which he did.</p> <p>The plaintiffs charge in their bill that Henry Foglemaj® paid $15 as surety for the purchase'money of the ten acre® tract and the whole prise of the nine acre* tract; and the prayer oí the bill !is for a decree that Henry Foglomau and William Hudson release to the plaintiff Shoffncr, all claims, &c., to the ten acres tract upon the payment to Henry Fo-gleman of $15 and interest, and that the Clerk and Master execute a deed to the said pla nliff for the said tract in fee s>tapie; and for alike decree rato the nine acres tract .-¿guinst U. Fogleman, Patterson ufol »». cn tho payment ■„f $95 wdh interest; .vid therv is '> V; general prayer for rebel • •</p>

<p>The nature and facts of this- case are stated in 'Judge Battle's opinion. • #</p>

This was a writ of certiorari at flic suit of Lieutenant John N ■ Prior, Jfiurolling officer of the Sth Cougi ossimial district, directed to Chief Justice -Pearson,' for the' purpose of reviewing a judgment given by him in a writ of habeas corpus sued by Robert II. Smith against John N. Prior. * Besides the ibets stated iu the opinion of the Court,,'it appeared, by the return of the Chief.

The plaintiff filed this bill fo recover dower in †-'.e lands j here was no controversy except about a piece of laud celled the fan yard lot, stud some tracts of land devised to her Life husband by Janies YJ.

<p>field by a majority of the Court, that a bonded exempt is in the service of the Confederate States, by force of a constitutional act of Congress, 17th Feb., 1864, 10th sec., 4th clause, 1st, 2nd and 3rd paragraphs.</p> <p>And, therefore, he i» not liable to service in the Home Guard.</p>

In May 1842, Jonathan L. Carson and George M. Carson conveyed to William M. Carson. lands, slaves, and other personal property, by a deed which recites that it is made in consideration of the sum of one dollar,- and tljie farther consideration of the good will and “ affection the grantors have for Almyra Carson, the wife of William Carson, and the children of the said Almyra and William namely, John, Martha M, Mary M, Matilda A, and William, and such as they may have…

The plaintiff charges, in her bill that at the time of her marriage with her late husband, Bryan Smith, she was the owner of a tract of land in ' Johnston county, which her hnfeband was desirous of selling, and at Ms request sbe -■onsented to sell and convey it upon his agreeing that he would convey to her as a consideration for her land, another tract of land or slaves of equal value with her land, or in some other way to seeqre her from loss.

The biJl'.was filed to compel the defendant Freeman to convey certain parcels of land to a trustee for the sole and separate use of Mrs.- Hasldll. The facts of the case .are stated in the opinion of the court.

<p>Applii ation (nr < jwruplinn, oo account of being Hie owner ami manager or morseer of 15 ahle-bodicrf slaves, must bo made* in roa go on bio time after 1st Jan , 1864.</p> <p>Application on the 22mi Nor., 1864. is not in reasonable lime.</p>

<p>One ^.rolled in March, 1864, under the act of lYth February of that year, who was under 45 at the time of enrollment, is bound to serve in the regalar army during the war.</p> <p>A written paper, signed by the Enrolling Officer, ia its terms an exemption, is“ but a furlough or detail, if the officer had no right to grant a,a exemption.. ' •</p>

This was an appeal from the judgment of Readb, J., at Fall Term of Haywood Superior Court, 1864.

The bill is filed by Eebecca W. Turner, the widow of the late James A. Turner, and'states that an order of sale of á tract -of laud belonging to certain infants had been' made by, the Court of Equity for Granville county, and at the sale made in pursuance thereof, the plaintiffs late husband was the purchaser thereof, that the sale has been confirmed, and the purchase money paid by Edward G. Cheatham, his executor. ' So much of the will of James A. Turner as rer lates to…

<p>The poverty of an executor is not of itself a reason for a Court of Equity ! restraining him from administering the estate.</p> <p>There must be some maladministration on his-part, or some danger of loss from the misconduct or negligence of the'executor, for -which he will not be able to answer by reason of his insolvency. -</p> <p>The case of Fairbairn vs- Fisher, 4 Jones Eq. 390, cited and approved.</p>

Robert Kincaid by his will gave real and personal property to Ms wife for life or widowhood, the real property being land owned in fee by the testator, and made divers dispositions thereof to take effect after the death or second .marriage of' his widow.

This was an appeal from the judgment of Heath, J., •at ball Term of Iredell Superior Court, 1864. Tbe prisoner was indicted for arson in burning a barn with grain in it. Tbe State gave evidence tending' to prove'the guilt of the prisoner as charged in tbe indictment ; among other things his confessions, which one Kerr testified¿ were freely and voluntarily made.

<p>Equity will annul a contract for the purchase of land by a man whose mental faculties are greatly impaired, at a price double its value, ob» tained from him when he was deprived of the counsel of his friends, by the fraudulent practice of the vendor.</p> <p>The cases of Amis vs. Satterfield, 5 Ired, Eq. 173 and Freeman vs. Dwiggins, 2 Jones E. 162, cited and approved.</p>

<p>This was a suit, by bill in equity, to enforce the pay ment of a negotiable bond payable to the plaintiff, which, was in possession of the defendant, tlie obligor. AIL the máterial facts are stated in tlie opinion of tlie court.</p>

This was an indictment against the defendant for fraying of,'and # receiving from a slave,, .belonging to Ííh B. Moore, a certain quantity of corn, against the act of the General Assembly, (Bov, Code, ch. 34, sec. 85,) tried before _Heath, J.,at Iredell Superior Court, Fall Term, 1864. ■ On the part of the State, there was evidence tending to show that the «lave, in the night time, carried a bag of corn near to the defendant’s‘house, and threw two stones on the roof of the…

<p>Where land is purchased in fee by a partnership with partnership funds and for partnership purposes, and one partner dies, his share of the land, descends to his heir, in equity, as at law.</p> <p>And it seems that upon a dissolution of the partnership by effluxion of time or otherwise, all the partners 'being living, the land will be regarded as real estate, as between them.</p>

<p>It is not a ground for arresting judgment tbat the two offences, of permit* ting a siave to go at large as'a free person, and of permitting him to keep house as á free person, are joined in tho same count of an indictment.</p> <p>'If a siave living in \house to himself, keeps a hoarding house for his own livelihood, and the master knowing it, exercises no control over him or his 1 nsiness, this is an offence within the 107fh chapter,' 29th seo. of the Revised Code. ,</p> <p>The casts of -the State vs, Duckworth, I Winston’s Rep., 243,and Sratc vs. Allan, 4 Hawk^s, 250, cited and approved.</p>

<p>A Writ of Fi Fa can not continue by relation a lien on property created by a peevious writ, unless it purports on its face to be an alias.</p> <p>The cases of Yarborough vs. State Bank, 2 Dev. 23. Palmer vs. Clark, 2 Dev. 356, Den on clem. Arringtbn vs. Hodge, 2 Dev. 359, and Harvey vs. Spivey, 8 Ired. 03, cited and approved.</p>

<p>This was an indictment against Ellick, a slave, for the murder of another slave, Cornelius, tried before Frewch, J., at Fall Term of Granville Superior Court, 1864.</p> <p>. Micajah, a slave, a witne** on fclie part of the State, swore that one night in the last summer, he had a quarrel with the prisoner, about the prisoner’s, having been attacked by a dog, a week.before. He*and the prisoner fought — he threw the prisoner down, and seeing the prisoner feeling for his knife, he left him — shortly afterward# ■he saw the prisoner seated on the door sill with the deceased ; he heard some words pass • between the two,_ but did not hear what they were. He saw the prisoner get up, and immediately afterwards the deceased arose,; and as he rose, prisoner made a thrust at him with both hands, and witness .saw the blow strike on the left side, of •deceased, who, immediately after receiving the blow, reached his hand inside the door and took a stick and knocked prisoner down. The déseased died of the wound. The stick which the deceased -used was admitted by the State to be a deadly weapon. Other witnesses for the State swore to the same general effect as Micajah.</p> <p>Witnesses were examined on the part of the prisoner, who testified to the facts stated in the opinion of the Court.</p> <p>The counsel for the prisoner requested the Court to charge the jury, that if they had a rational doubt from the evidence, whether the 'killing was done with malice, that the prisoner was entitled to the benefit of that doubt, and they should find the prisoner guilty of manslaughter only. The Court refused to give the instruction. The counsel for the prisoner further requested the Court to charge the jury, that if the fatal blow was given by the prisoner, after he was stricken with the stick by the deceased, that it was manslaughter, only. The Court declined to give the instruction, because there was no evidence to Sustain it. The Court instructed the jury, ■ that apon the eyidence of the witnesses on the part of the State, or of the prisoner, the killing was murder.</p> <p>The counsel for the prisoner excepted to the charge of the Judge.</p> <p>The jury found the prisoner guilty. And from judgment accordingly the prisoner, appealed. '</p> <p>In substance and effect the Judge instructed the jury that according to the whole of the testimony and that of each witness, this was a case of murder, and that' there was no evidence, however slight, tending to prove a legal provocation. It is insisted, in behalf of the prisoner, that the charge is erroneous, and that it is in conflict with the act of T796, and the views of this Court in the case of the State vs. Allen, 3 Jones, 25T. In that case the Chief Justice, in delivering the opinion of the Court, uses these words : “A Judge is not at liberty-to express an opinion as to the sufficiency of the eyidence. When there is a defect, or entire absence of evidence, it is his duty so to instruct the jury ; but if there be any competent evidence, relevant and tending to prove the matter in issue, it is ‘ the true office and province of the jury to pass upon it; although the evidence may be so slight that any one will exclaim, ‘ certainly no jury will find the fact upon such, insufficient evidence,’ still .the Judge lias no right to put his opinion in the way of the free action of the jury, even should he deem it .necessary to do so, in order to prevent them from being misled by the arguments of counsel or their own. want of apprs-hension.”</p> <p>Before commenting oñ tbe evidence set forth in tbe bill of exceptions, I will make a remark or two on tbe law of murder and manslaughter in connection with this case. If a distinction of any practical importance is to be recognized between homicide committed with malice, and a killing where the fatal act is the result of a sudden transports passion which may be'regarded as an incident to human infirmity,’ if theye be any /substantial difference between a killing from the wickedness of the heart, anda killing under the influence of the' ordinary frailties of our nature, it must follow, upon principle,-that an assault with a deadly weapon will extenuate a homicide to manslaughter, even though the party slaying may use a deadly weapon himself.</p> <p>What is an assault ? If A advances in a threatening attitude towards B to strike him, and is stopped just before he is near enough for his blow to take effect, it is an assault. Stephen' vs. Myers, English Common Law Reports, vol. 19, page 414. This case is cited as authority by enlightened elementary writers. See Arch. Criin. Pleading, 417 ; Greenleaf on Evidence, 3 vol., 57. It is-also referred to with respect and approbation by Judge Gaston in the case of the State vs. Davis, 1 Ire., 135. If the law is truly stated in .the case of Stephen vs. Myers it must follow, upon prineiple, that if A reaches after a stick and turns round to strike B with it, who is already within striking distance, it is an assault, .though B may strike him before he can accomplish his purpose.</p> <p>There is evidence in the statement of the witness, Harriet, tending to show that the deceased committed an assault; with a deadly weapon, upon the prisoner immediately before the mortal wound ivas given. She says, “the prisoner sat on the door sill by tire deceased. Witness beard some words pass between them, but does not resol-loet what they were. The prisoner got up .first. Cornelius rose up and reached his harfd'inside the door and got his stick. As he was turning round prisoner'struck him. on the left side. Witness heard the rip.” The prisoner, to use the language of the Court in the ease of the-State vs. Allen, has a right to insist-that the testimony should-he taken in the point of view most favorable to him ; and thatlfim any aspect of the evidence, ic is consistent with his being guilty of manslaughter only, there whs error in the manner in which the caso was put to'tlm,jury. In reference to the evidence of Harriet, if she- had been .the •nly witness, the proper charge would have been that if the prisoner had reasonable ground to believe that the' deceased reached after the stick and turned round to .strike him with it, it was manslaughter. .</p> <p>Such an instruction would have been proper upon the whole of the evidence together-. That the deceased -reaehed his hand inside of tli'o-door for his stick (admitted to be a deadly weapon) is proved by Micajah, George and' Harriet. T-hat it was his purpose to strike the prisoner, with it', is proved by Micajah and George, both of whom «ay, that he knocked him down three times with the stick. Jack also proves that-the deceased struck the prisoner with it. . Micajali and George state that the stick was reached for after the wound was inflicted on tiie deceased, but .Harriet’s evidence, if believed, shows that it was before. Whether the reaching for the stick was before or after the wound was inflicted, was a question of fact and not a question of law ; a question for the jury, and not one for the Court, A jury ¡hay believe a witness in part, and disbelieve other parts of his testimony, as founded in mistake or porjury. . They may, and often do,' believe ene witness as to a part, of a transaction, and reject bis statement, and adopt i-ixai of another witness as to other j-s.ris of th< tranruoít-m. Hn«noao that íhoy should believe Harriet in, to the tNi” vie ;i ? \ slick ; resumed after. 'Suppose they should. then reject the improbable statement of George’ «s io tóiu conversation which preceded any acts oí vickuiee on either side. They might well do so. for lio say’s. he heard prisoner say to deceased you hare all laid up f'e w-h’sp’we about that dog,” to whom the deceased !'opli3sfí<whomdoy...u raran by you ah?”' Prisoner replied, 'u i mean yep and nobody eke, and 1 will fix you for it now.' Suppose thee, that they should beliteye Micaja'la, (ieorge^and Jack as to the purpose for which the stick was obtained ano amxi, wo Slum hare this case : A reaches after a deadly weapon in gire’t), who is very near' him, a violent blow. B anticipates him, and stabs bim with a dirk in'the loft sido, whereupon-A, not deterred by the wound, knocks 4own three time:' with a bludgeon. Here would certainly be a case hi which the party slaying cannot be guilty of anything more than manslaughter. The question. 4s, not whether an intelligent jury would come to-the conclusions on the facts of the case which I have mentioned, or whether the' weight of the evidence would warrant them in so doing, hut whether they had. nota right, as triers of the facts, to come to such conclusions, or whether, in other words, there was any proof,' however slight, tending to establish these views of- the transaction. * • • ‘</p> <p>I have said that Harriet’s evidence, if believed, show® that the reaching after the stick was before the wound was given. It is true, that she does not, in the case made out by the Judge, say, in so many words, that it wa® before, hut it is clear that such was her meaning. She mea-tions that fact before the' other. In common conversation, and in almost every narrative, we mention facts in the order in which they occurred in point of time, 'and if we do not do SO' we show in what order we mean to state them as having occurred, because, without any explanation, the presumption is, that they occurred in the order in which they are stated. It would be in a case like this, either gross ignorance or palpable perjury in a witness, not to mention facts in the order of time in which the.y took place, and to make no explanation as to when they occurred, só that the real order of events may be accurately understood.</p> <p>In the ease of th.e State vs. Allen, the Chief Justice says that suppose the jury should disbelieve Magee and Hicks, and should believe Hob good. These were the witnesses present at the killing. It does not appear from the case that either was impeached, and the probabilities were strongly against Hobgood’s evidence containing the true view of the transaction. Suppose that in our case the jury should disbelieve all but Jack and Harriet. An intelligent jury, with a correct exposition of the law from the bench might, in that event, well acquit ef murder. The prisoner has a right to have the case decided in this Court, as if the J udge had pronounced it murder, according to the evidence of each witness.</p> <p>The charge of His Honor is still more open, to just exception in another particular of deep and vital importance. It invades (of course unintentionally) the right of the jury to determine upon the eredibility of the witnesses. He says that, a upon the evidence of the witnesses upon the part of the State or the prisoner, it was a case of murder,” without saying whether they should believe the witnesses' or not, or using any words of equivalent ini-port. The omission is a grave and serious one, and renders the instruction clearly and fatally erroneous. A jury being told by the 'Court that, upon the evidence on both sides, it was a case of murder, would consider their .task á mere matter of form; and would think that .they had nothing to do in the matter but merely to retire for a few moments, and then return with a verdict of guilty, in conformity with the'views of the Judge, whatever notions they might have as-to the facts of the cage-or’ the credibility of the witnesses. I deny the right of a Judge in North Carolina to charge in this manner, no matter what may be the evidence in the cause. ■</p> <p>In my opinion the Judge ought to have "instructed the jury, in substance, as follows ; If the jury shall believe, that the deceased reached alter his stick just before the-mortal wouud was inflicted, and the prisoner had reasonable ground to believe that he did so for the purpose <#" striking him with the stick, then it was. a case of manslaughter. He certainly ought to have told them that it was their exclusive right to pass on the credibility of the witnesses-</p> <p>I wi.il, with the indulgence of the Court, add a word or two »n the doctrine'of reasonable doubt. I am aware that this Court, sustained, as I admit, by high authority, and probably deeming itself bound by it, has held.that the doctrine applies merely to the fact of killing. If the question is not,, in the view of this Court, too far settled by authority, now to bo reviewed in the light of principle, I would, with great deference, suggest that the rule,- that, doubt .must be followed by acquittal, results from the hu-. mane maxim, that it is better that ten guilty persons shall escape than that one innocent man shall suffer, and* that the principle on which’ the rule is ■ grounded is as much, applicable to the grade of the homicide as it is ire the fact of the homicide.</p>

<p>A person.' actings as an officer of tlie law under a judibial order or judgment ought not to ba made a patty defendant to a bill for an injunction, to restrain the execution of tuch order or judgment.</p> <p>The State Courts have no jurisdiction to restrain persons from acting under the orders or judgments of the Confederate Courts, unless they have been obtained by fraud. Whether they have jurisdiction then, this court decline^ to express any opinion. They have no jurisdiction to review the proceedings of the Confederate Conrts.</p> <p>The cases of Edney -vs. King. 4 Ired. Eq. 465,, Lackay vs. Curtis, 6 Ired. Eq. 199 and Witherspoon vs. Carmichael, 6 Ired. Eq. 143, cited and approved.</p> <p>The court can not give relief on the ground of frauds, unless it be positively and distinctly alleged.</p>

<p>In taking an account under a decree which directed that the mortgaged property in. possession of the mortgagee should be retained by him in satisfaction of the mortgage debt at a valuation to be fixed by the Clerk, the valuation must be made according to what the propeity would bring in specie.</p>

The petitioner was. a blacksmith, and had worked at the trade for ton years. Iu May, 1862, he quitted his shop and went to work in the armory of one B. Weathersbie, who was engaged in working for the State of North Carolina. On the 8th of July, he was enrolled as a conscript, and shortly thereafter, was detailed at Weathersbie’s request to work in bis armory, where be remained until the contract was abandoned in the latter part of March, 1863.

<p>A Inquest in these words (after a bequest to A. a daughter of Mary Pickett) “ I give arid bequeath to all the rest of my nieces Mary Pick-rtfs childien that she now has or may hereafter have Maria-and Jim to sh'.ire equaljy, the above negroes to remain in the hands, &c.” Mary Pickett haying, at the time when the witl was made, no other daughter than A. but two sons, is a gift to all file children of Mary Pickett which she then had (except A.) or might at any time thereafter have, whel her in the life time of the testatrix, or after her death. *</p> <p>The cases of Shin vs. Motley; 3 Jones Eq., 491, and Shull vs. Johnson, 2 Jones Eq., 202, cited and approved.</p>

<p>.This was a suit brought in the’Court of Equity of Cumberland county.</p> <p>The bill states' that tbe plaintiffs have their places of business ill tbe town, of Fayetteville, and reside with tbeir families in the county of Cumberland, in. the neighborhood of said town. The plaintiff, Worth', is a commission merchant, and agent .of the Cape Fear Steam Boat Company. The corporation dem«,nds from him a tax on money on hand, dividends received- from money invested in Steam Boat Company, salary as Steam Boat Agent, and a riding vehicle. The plaintiff, Lntterloh, is-a merchant, and the owner of ¡1 steam boat plying between Fayetteville and Wilmington. The corporation demands from him a tax on money on hand, capital in Steam Boat Company, dividends received from money invested in Steam Boat Company, riding* vehicle, State bond, money in Beaver Creek. Cotton Factory, l@eated out of town, and dividends received from money invested in -that factory, The plaintiff, Steel, is a merchant. The tax demanded from him is on some of the articles above-mentioned.’</p> <p>The bill charges that the right to tax the plaintiffs, ie. respect of these articles, is iounded on an act of the General Assembly, ratified on the 28th day of May, 1864, entitled an act to enlarge the powers of the Mayor and Commissioners of the town of Fayetteville, the fourth section of which, enacts, “that the Mayor and Commissicncrs-of the town of Fayetteville bo, and they are hereby, empowered to impose the same taxes, for pnuuicipal purposes, upon all persons whose ordinal'} avocations are pursued within the corporate limits of the-town, although resident beyond the corporate* limits, in like manner, and to the sanie exfgnt, .as upon persons resident within the corporate limita : ProviPai7,, tluvt ron-re.indents, thus, taxed, shall have the right to voto ai municipal elections add the act of ]862~’68, ch. -IS, entitled an ££ Act to enable nil the incorporated [owns in this State to lay additional taxes.’'</p> <p>The hill v/ui tiled by tK plaintiffs on -behalf of themselves, and others having the same interest.</p> <p>The prayer of the" bill was for an injunction.</p> <p>The defend.:.!)!; demurred ; and the cause was removed to this Court foi argument. . ;</p>

<p>This uva» a scire facias to show cause why an execution-should not issue on a forfeited recognizance, and was tried before Rea.de, J., at the Superior Court of Buncombe county^ Term 1864, on the plea of nid tiel-remrd.</p> <p>The State gare in evidence a record of the Superior Court of Law of Buncombe county, setting forth that at Spring Term of that Court, £<B. J. Smith and ,W. W. McDowell, Justices of the Peace of said county, brought into Court paper writings of the tenor following, to wit: (Here was inserted the petition of J. A. Shock and five others, addressed to the Hon. William M. Shipp, one&c-., praying for a writ of habeas corpus, in order that they might be bailed.) The record then ■ proceeded, “ Upon the facts stated in this petition, I‘think the parties entitled to bail. Therefore, b.y the suggestion of the .Solicitor, without the formality of a writ, and to save trouble and expense, I suggest that they be admitted to bail in the sum of two thousand dollars each, and that B. J. Smith and W. W. McDowell take bond for iheir appearance at the first Superior Court to be held after this time. If the suggestion is not adopted, the writ must -issue above' my name which- is signed near the bottom of this sheet.</p> <p>February.5th, 1864. ‘ W. M SHIPP.</p> <p>W/ M. SHIPP, J. S. C. L. E.</p> <p>Know all men by these presents, that we, J. A. Shock,. Carol Walton, James T. Holbert, Daniel Mayberry, G. W. Walker and B. M. Edney, are held and firmly bound to the State of North Carolina in the sum of two thousand dollars, for the faithful payment whereof we hereby bind ourselveá, our heirs, executors and administrators.</p> <p>The condition of the above obligation is such : Whereas,' the. above inunden, J. A. Shock, Carol Walton, James T; Holbert, Daniel Mayberry ant G. W. Walker, hare been regularly committed to the common jail in and for the county of Bun'combo in said State, charged with the crimes of larceny, robbery and'burglary ; and, whereas, on application to the lion. W. M. Shipp, one of the Judges of the Superior Courts of Law and Equity in and for said State, he has ordered that said last named parties be allowed bail in the sum of two thousand dollars eaeh, the bond tó be received by B. J. Smith and W. W. McDowell/Justices of the Peace: now if the said J. A. Shock, Corol Walton, James T. Holbert, Daniel May-berry and G. W. Walker, and each of them, shall well and truly make their and his personal appearance before the Judge of the Superior Court of Law, to he held in and for the county of Buncombe' aforesaid, on the 6th Monday after the 4th Monday in April, A. D., 1864, and if-they and each of them shall well and truly make their and his personal appearance before the Judge of any Court of Oyer aud Terminer that 'may bo ordered to try criminal cases in aud for the county of Buncombe aforesaid, at any time before the. said Superior Court, and not depart the Court aforesaid until lawfully discharged, then the above obligation to be void. Otherwise to remain in, full force and effect; and it' is expressly understood that the above bond is for the several appearance of the last named parties ; and that the forfeiture is to be the forfeiture of the said sum of two thousand dollars for the default of each and every one of said last named parties.</p> <p>'Test:</p> <p>P. 0. WALTON, [seal.]</p> <p>JAMES T. HOLBERT, < [seal.] ,his</p> <p>DANIEL M MAYBERRY, [seal.] mark</p> <p>•J. A. SHOOK, • . [seal.]</p> <p>O. W. WALKER, [seal.]</p> <p>B. M. EDNEY,. [seal.]</p> <p>Approved:</p> <p>W. M. McDowell, J. P.</p> <p>Approved:</p> <p>B. J. Smith. J. P.</p> <p>And the said papers and recognizance were ordered by the Court to be entered;of record and were, duly entered accordingly, and at the same term of the Court the following proceedings were had, to-wit:</p> <p>THE STATE 1 vs. > JAS. A. SHOOK. )</p> <p>The said defendant is called on his recognizance and failed to answer and appear. Let scire facias issue according to law. Judgment ni. si. against defendant and his surety B. M. Edney, for the. sum of two thousand dollars.</p> <p>The Oburt adjudged that there was no such record as is supposed by the scire facias.</p> <p>The State appealed.</p>

<p>The facts are stated in the opinion of'his Honor.</p>

This was a petition for a habeas corpus by the plaintiff, who is a citizen of Person county. The facts of the case appear from the opinion of the Court.

Petition for a Habeas Coepus, before the Supreme Court, Elias Ritter, the petitioner, on the call on the State of North Carolina for troops, was drafted on 25th of February, 1862, to go into actual service. He then hired a substitute over eighteen years of age, by the name of Medlin, for three years or the year, who was received by Col. Richardson, an officer authorised by the government to receive substitutes.

’• This cause was removed from tbe Court of Equity Tor Columbus County,- to this Court for trial. The bill states that in tbe year 1862, Robert.

, at tbe Pall Term, 1860, of Onslow Superior Court. Tbe plaintiff, as-the widow of James GL Wallis, was appointed by the county court of Onslow, administratrix. ’ It appeared that at the time of this appointment, she was only about seventeen years old.

<p>It is eot burglary to break ami outer 7a amoke house thirty-five steps from a dwelling house, the .1 welling houss having no inelosure around it.</p> <p>A log cabin'belonging to Mu; owners of a tobareo faetory; in which the Superintendent of the factory usually slept, -ii a dwelling house, iu. which burglary may be committed.</p> <p>The cases of State vs. Langford, 1 Dev. 253, Stab. rs. Jenkins, 6 Jones, 430, and State jij. Curtis, 4 Dev. end Tbi. 222, So-' r,i .ip'ro-’v!. .</p>

<p>Where one, by will,'gave all Ms slaves, equally to be divided among his four children, and afierwards, by deed of gift, gave two of them, by name, to one of his children, there is no rule of law preventing the donee of the two from coming in for an equal share of the residue.</p> <p>Where, on a petition for the partition of slaves, the County Court ordered that partition should be made in certain proportions, and appointed commissioners to make it accordingly, and on an appeal to the Superior Court, the order was reversed and the division ordered in different proportions, it was held that the Superior Court was not in possession of the whole case, by the appeal, and that a procedendo to the county court was proper.</p>

This was a suit removed from the Court of Equity for New Hanover county to this Court for trial. • Dr. Frederick J. Hill died in the year 1861, having made his will, which has been proved by his executors, of whom the plaintiff,- Thomas C Miller, is one.

This was a motion to dismiss an appeal in the Superior Court of Moore County, Fall Term, 1862, His-Honor, Judge-Baxley, presiding. ' Tbe facts of the case are fully stated-in the opinion of the-Court.

<p>The ease is stated in the opinion of the Court.</p>

<p>This cause was removed from the Court of Equity for the county of New Hanover.</p> <p>The nature and facts of the case are stated in the opinion of the Court.</p>

AgtioN of detinue for a slave, tried before Bailey, J., at the last Term of Johnson Superior Court. On the 8th of November,. 1854:, Henry R Nelson made to the plaintiff,, as trustee, a deed for six slaves, valued at about $4:000, to secure debts amounting to about $190, among which' slaves-was-the man Hinton, now in controversy. In November following, the plaintiff, as trustee, put up the slaves to auction, and they were bid off by divers persons.

<p>The declarations and admissions of a party to a suit, civil or criminal, pertinent to the issue, may be givoti in evidence against him by the other party.</p> <p>It is not the belief, simply, of a man that he is about to be stricken, which will justify him in striking first, but his belief founded on reasonable grounds of apprehonsion.</p> <p>.One who seeks a fight, or provokes another to strike, him, canDot justify returning the blow on the ground oí self-defence.</p>

<p>This was a demurrer to a bill in the Court of Equity, for Greene county. ■ Thtf cause was removed to this Court for argument. The object and allegations of the bill are stated in the opinion of the Court,.</p>

This was a hotigN to set aside a judgment and execution, beard before Heath, J., at Spring Term, 1859, of Robesort Superior Court. An ejectment had been brought against the defendant,- in which there was a count on the demise of the plaintiffs. In the suit, the defendant prevailed, and a judgment was- rendered against the lessors of the plaintiff for costs, on which the execution issued.

This cause was removed from the Court of Equity for Wayne county to this Court for trial. The bill alleges that Scarborough Spivey died in April, •1864, having made her will, of which the plaintiff was appointed executor, and that he has qualified as such.

<p>This wás an action of ejectment tried before French, J., at Spring Term of" Anson Superior Court.</p> <p>The case is fully stated in the opinion of the Court.</p>

This was a suit in Equity in the Court of' Equity for Haywood county, removed to this Court, after being set for hearing on bill and answer. The^purpose of the suit was to have a settlement'of the estate jojf Amos Plott. ■The only contrpversy was on the construction of two clauses in the will of Plott. The opinion of the Court contains a statement of everything relating to thp questions decided.

Debt on Sheriff’s official bond, tried before Bailey, J., at >the Fall Term, 1862, of Richmond Superior Court.

This was an action of trover for slaves, tried before PRENCir, J., at Stanly Superior Court, Fall Term, 1863. There was a verdict for the defendant, by the direction of the' Judge. The plaintiff appealed.

Debt oh the official bond of a sheriff, tried before Sauit-ders, J., at Spring Term, 1861, of Richmond Superior Court. The breaches of the bond assigned, were the failure to collect a note on one Isabella McKay, placed in the hands of one Moorman, a-deputy of the sheriff, for collection. 2ndly. Collection of the money and failure to pay it over.

This cause was removed from the Court of Equity of Eowan county to this Court.

This was aa indictment for the murder of John C.. Howard, tried before Gilliam, J., at Fall Term, 1864, of Moore Superior Court. - The indictment charged that the deceased, John C. Howard, was killed by the prisoner, and that others, to the jurors unknown, wore present, aiding and abetting him in the a*t of killing. “In forming the'jury, the prisoner challenged one Donald McDonald, and assigned for «au.se that he had formed and expressed an opinion that the prisoner was…

This qause was removed from the. Court of Equity of ■ Haywood county to this Court for argument, upon a demurrer to the bill. So much of the pleadings as is necessary to the under-. standing of the case is stated in the opinion of the Court.

<p>This was an action of debt, trred'before OsborNE, J., at the-Eall Term, 1860, of McDowell Superior Court.</p> <p>The plaintiff declared as successor on a bond-, payable “to-Thomas II. Robinson, treasurer of the trustees of Davidson-College and his Successors,” and-on the trial below, the Judge-ordered a nonsuit, from which plaintiff appealed.</p>

Tms was a petition in behalf of the widow of the defendant’s intestate for a year’s provision ont of her husband’s estate. A decree theretofore had boen duly had in the County Court of Onslow. Commissioners were appointed to make the allotment; the allotment, was mad'e andreturnedto court, and on motion, the same was confirmed anda decree-made accordingly. Whereupon defendant appealed, on-the-ground-, that the allotment was excessive.

This was a cause removed from tbe Court of'Equity ef Gaston county to this Court for trial. «• In 1816 Mary J. Scott, a widow, living in» Lincoln, «otmty, married J®hn Moore of the State of Georgia.

<p>MotioN for summary judgmcmt, tried before OsbobNE, J., at the Pali Term, 1860, of Buncombe Superior Court</p> <p>This was an action beginning by motion, brought by plaintiff, as county trustee of Buncombe, to recover of the defendants as sureties to the official bond of W. T. Coleman, late clerk of the Superior Court of Buncombe, for monies paid to their principal at April and October Terms, 1851, in his official capacity. Mr. Coleman was sworn in as clerk at October term, 1819, for four years. He went out of office in October 1851, and died soon after. The amount alleged t'o be due was ascertained by an investigation and report of a committee of finance, which was admitted as proof, but no report of money, in the office, had been made by the clerk, and it was contended that the form of proceeding did not apply in this case, and the Court being of this opinion, the plaintiff submitted to a nonsuit and appealed.</p>

This was an indictment against the prisoner for the murder of one Hosea Little, tried before Heath, J,, at ' Fall Term of Mecklenburg Superior Court, 1864. On the trial --■ Ringstaff testiAed, that before, and at,. the time of the homicide, he was a lieutenant in the army of the Confederate States •; and in obedience to a written order directed,to him, purporting to be from.General Gf.

Trespasss Q. C. E. tried, before IíowARb, J., at Fall Term, 1861, of Forsyth Superior Court. The plaintiff offered in evidence a State grant for the tract E, F, O, D, covering the locus in quo, dated in December, 1S59, the defendant admitted the trespass by clearing one acre of the land, included within the boundary of the said grant since the issuing thereof.

Action of EJECTMENT, tried before BAieey, J., at the Pall Term, 1862, of Cumberland Superior Court. The counsel for the parties; -respectively, agreed on the following case: ' CASE AGREED.. In the year 18,03,.

This eause was transferred to this Court for trial from the Court of Equity of Forsyth county. The bill-was filed by the plaintiff as executor of A. J. Stafford, and prayed the advice of the Court'as to the construction and execution of his will. The material parts of the will are : tc 3dly.

Action of hjkcTMKNt, tried before Heath, J., at the Eall Term, 1802, of Northampton Superior Court. The .action was brought to recover a “saw-mill and fixtures situate on the land of John ~W Stephenson,” and of which the defendant had possession.

This ‘was an action of detinue for slaves named, ■ &c., and was submitted to the decision of Saunders, J., at Halifax Superior Court,’ Fall Term, 1864, on the following case agreed. About the year 1852, Samuel- W. Branch, the plaintiffs’ testator placed the slaves for which this suit is brought, by parol, in the possession of Edward Tillery who had married his daughter, Rebecca.

This was an action of assumpsit for goods sold and delivered, tried before Osborne, J., at the Eall Term, 1861, of Buncombe Superior Court. .The plaintiffs were partners, dealing in drugs in the city of New York.

This cause was transferred to this Court for trial from the Court of Equity of Rowan county. The bill was 'filed by the administrator, with the will annexed, of George Horah against the testator’s widow, and his brothers and sisters and the children of deceased brothers and sisters.

This, was an indictment tried before Rbade, J., at Fall Term, 1864, of the Superior Court of Transylvania county. •The indictment charged John Summey, William Sum-mey, and Samuel Johnston with- distilling spirituous liquor from corn. Johnston was not taken. The two ether defendants appeared .and pleaded, not guilty.

ActioN ON tee case for negligence-, tried before- KeeR, J.,. at the Eall Term, 1862;. of Iredell Superior Court.

<p>The performance of a trust created by a conveyance of property to a tear-tec for the uso of an insolvent person upon an inadequate consideration, or gratuitously, will be e-.forced aiainst the trustee, at the suit of thq cestui que trust.</p>

This was a writ of certiorari at the suit of Major Mai-, lett, for the purpose of reviewing the decision of Battue, J., in a writ of habeas corpus sued by the plaintiff against the defendant as commandant of conscripts in this State. Judge Battle, on the trial before him, ordered the petitioner to be diseharged, on the authority of Russell vs. Whiting. The-facts of the case are stated in the opinion of Judge Battle.

This was an-action of'assumpsit, tried before Diok, J., at the-Spring Term, 1861, of Jackson Superior Court. The suit was commenced before a -justice of the peace on a book account, for $2,50, and an order purporting to be given by the defendant to the plaintiff. The account was- admitted by the plaintiff, but the order was disputed.

ActxoN OR ejectmeNt, tried before Howabd, J., at the Fall Term, 1861, of Montgomery Superior Court..

AotrioN of ejectmeNt, tried before Howaed, J,, at the Fall Term, 1861, of Harnett Superior Ooprt. The plaintiff’s declaration included three tracts or pieces of land.

This was action of debt, brought on a constable’s bond, tried before Osboeito, I., at Pall Term, 1860, of Henderson Superior Court. It appeared that at October Term, 1856, of Henderson County Court, the defendant was appointed constable for one year and filed the bond on which' this suit was brought. The bond was in the ordinary form, with a condition to perform the duties of constable, without specifying the term of his office.

ActioN of ejeCTMbnt, tried before Dick, J., at the Spring Term, 1861, of Haywood Superior Court. Tiie lessor of the plaintiff add need his title regularly to John Leatherwood, whose will, conveying the same to her, was offered in evidence, but objected to for the want of a due probate.

<p>This was a writ of certiorari for the purpose of reviewing tbe judgment of the Chief Justice, in a writ of habeas carpus,, sued out by Matthew Johnson and returned before him. The Chief Justice discharged‘the petitioner.</p> <p>■The facts of the case are stated in the opinion of the Court. •</p>

<p>Where a person suspected of a murder was arrested and brought before a jury of inquest as a witness and subjected to a rigid examination, it was held that this examination was not competent evidence against him on a trial for the offense..</p>

This was-an indictment for murder, tried--before Kerr,.. J.,at the Fall-Term,. 1862, of-Rowan Superior Court.

<p>This was a writ of certiorari at the suit óf John. A. Bradshaw, .to bring into this Court for review the judgment of Heath, J., in a writ of habeas corpus sued out by David L. Bringle against John. A. Bradshaw, .an officer ofthe Home Guard.' .</p> <p>The facts are stated in the opinion of the Court.</p> <p>Judge Heath discharged the petitioner from custody.</p>

This was a writ of certiorari at the suit of Joseph J. Cox, directed to Heath J., for the purpose of reviewing his judgment in a writ of habeas corpus, at the suit of Cox against Major Gee commandant pf the military post at Salisbury. Judge Heath, dismissed the .writ and remanded Cox.

<p>This was a writ of habeas corpus returnable before Shipp, J., and by him adjourned into the Supreme Court.</p> <p>The facts are stated in the opinion of the Court.</p>

INDICTMENT'for trading -with a slave, tried before 'Osboenu, J., at the Fall Term, 1862, of Davidson Superior Court.' The indictment was for trading with Miles, a slave, belonging to one Eobert B. Jones, for a piece of bacon.

<p>A man between the ages of 17 and 50, is exempt from military servios under the act of Congress of 17th ‘February, 1864, by becoming tha 1 employee of the editor of a newspaper, at any time before enrolment;</p>

INDICTMENT for MURDER, tried before Saunders, J., at -the Fall Term, 1862, of Rutherford Superior Court. The cause had been removed, on affidavit, from .Burke.

This was an indictment for murder, tried before Saueders, . J'., at the Ball Term, 1862; of Buncombe Superior Court. The defendant, William B- Garrett, and the other defendants, ten in number, were p-ut upon-their trial for the -murdbr-' of Uriah G. Burns.

<p>INDictment for laRoent, tried before Howard, J., at the Fall Term, 1861, of Bladen Superior Court.</p> <p>The defendant introduced witnesses to prove his general character. The defendant’s counsel asked them as to his general character at the time the offense was supposed to have been committed. The solicitor then asked them what his character was then (at the time of the trial). The defendant’s counsel objected to the question, but it was allowed by the Court. Defendant excepted.</p> <p>Yerdict for the State — Judgment and appeal by defendant.</p>

<p>Rabeas Corpus.</p>

<p>Habeas Corpus.</p>

<p>Habeas Corpus.</p>

<p>Habeas Corpus.</p>

<p>Habeas Corpus.</p>

<p>Habeas Corpus.</p> <p>The facts are : Einley is a native of Baltimore, in Maryland, and had for many years been a merchant in Baltimore. In May, 1861, his political sentiments being on the side of the Confederate States, he left Baltimore and came to Ashe-ville, North Carolina, with no intention of changing his do-micil, but with the intention of staying in Asheville until the War was over, and, in the mean tipie, of collecting or securing debts due him in this State and in Tennessee, Georgia and South Carolina : he has been, the most of the time, in Ashe-ville, where he boarded at a hotel by the month, and visited other places in the above named States as business required ; he is 36 years of age and a single man.</p> <p>In October, 1863, he was ordered out to do military service as one of-the “ home guards,” by Major J. W. Woodfin, and upon his refusing to serve, he was arrested and sued out the writ of habeas corpus.</p> <p>assumed the grounds:</p> <p>1. The act of the Legislature is unconstitutional for the reason, that a regular army and the militia are the only military organizations recognized by the Constitution of the Confederate States, or of this State, and the act, in question, makes a new military organization, which supersedes the militia and defeats and makes of no effect the power of the Confederate States over the militia.</p> <p>2. The petitioner being a foreigner, who has not acquired a domicil in this State, to subject him to military service, would be a violation of the law of nations and international comity, which it will not be taken that the Legislature intended to commit.</p> <p>3. The petitioner is a subject of a country with which we are at war; an “ alien enemy,” and is not embraced by the act of the Legislature.</p> <p>I. The constitutionality of “ the act in relation to the militia and a guard for home defence,” although presented by the facts, is a question which it is not necessary to decide in order to dispose of the case according to the view I take of it, and I do not, therefore, enter upon its consideration.</p> <p>II. Assuming that according to the law of nations and international comity, the subject of another government, who is a resident, but has not acquired a domicil here, cannot be re-’ quired todo military service, in order to repel invasion and aid in establishing our independence, and assenting as I do fully to the position, that when the words of a statute will admit of any other construction, it will not be taken that the Legislature intended to violate the law of nations and of international comity, still there i§ no provision, either in the Constitution of the Confederate States, or of the State, which prohibits the Legislature from doing so, and if words are used, showing cleaily and unequivocally that such is the intention,the law is valid, and there is no ground on which the courts can decline to give effect to it from respect to the law of nations. In putting a construction on the Conscription Acts,, the general words, “ all white men who are residents of the Confederate States,” &o., are held not to embrace subjects of another government, who are residents, but who had not acquired a domicil here. The statute under consideration, besides the general words, “all white male persons residents in this State,” adds the words, “ inel-uding foreigners not naturalized who have been residents in the State for thirty days.” These words are clear and unequivocal, and as it seems to me, admit of no other construction than that it was the intention of the Legislature to include foreigners who had been residents here for 30 days, without reference to the fact of domi-cil, on the ground, that to repel invasion and prevent our subjugation, the principle of comity, on which the law of nations is based, should be, to a certain extent, disregarded; and it is the intention to require foreigners, who are' residents, as, distinguished from itinerants or travelers, to take up arms and aid in our defence. So, my construction is, that an Englishman or a Frenchman, who had resided here for thirty days, would be embraced by the act.</p> <p>NI. The petitioner is not simply a foreigner, who is a resident here, like an Englishman or Frenchman, but he is an “ alien enemy,” here by the permission of our government. Should he bring an action and to the plea, “ alien enemy,” take issue, it would be found against him, and he could only avoid the plea by confessing and putting in a special replication that he is a resident here by the permission of the government. “ Foreigner,” the word used in the statute, in its general sense, includes all persons who are not citizens of this State or the Confederate States; but in the law books, state papers, histories, and in conversation, it is commonly.used to signify citizens of other countries, neutral in their relations to us. In order to designate the citizens of a nation, with which there is a state of war, the word, “ enemy,” or “ alien enemy” is appropriate. So, upon the principle of construction above referred to, which applies with increased force in the case of an alien enemy, for reasons, which I will state, I am convinced that the statute, under the general word, “foreigner,” does not embrace an alien enemy, for, in that ease, it is not a mere question of comity, bnt other considerations are involved, which may deeply concern the safety of the State, and which force upon us a different construction, to avoid a violation-of the immutable principles of justice. A soldier has to be trusted — a faithless sentinel may sacrifice a whole army ; or an alien enemy, acting as a soldier, may desert and give information of vital importance. So, nothing short of direct words will justify the conclusion that it was the intention to make soldiers of them, and it should only be done by voluntary enlistment, with the express sanction of the government and full notice of the fact. "Would we trust a citizen of Massachusetts, who had resided here thirty days, as a soldier in our army ? In the eye of the law, a citizen of Massachusetts and a citizen of Maryland are on the same footing.— Again, if a citizen of Massachusetts or of Maryland, takes up ¡inns and fights in our defence,'ho will not, even in the view of the subject taken by our government, be entitled to be treated as,a prisoner of war. The IT, States would have a right to deal with him as a traitor, and -not a citizen of a belligerent nation. TJnder the general word, “ foreigner,” can it bo taken that the legislature intended to force a man to incur the guilt of treason, where the words are .plainly susceptible of a construction which excludes “ alien enemies ?” IJere, the rule of construction is pressed on us, not to avoid a -violation of comity, bu.t to avoid the commission of a positive wrong — a crime. Instances of the application of this rule of construction are to be met with in all of the works. A familiar one : A., haying an estate in fee simple, enfeoffs B, for life; it is taken to be for the life of B, as most beneficial to him ; but if one having an estate for his own life, enfeoffs B, for life, it shall be taken for the life of the feoffor, because if. would bo wrong to make a.11 estate for the life of B — -a forfeiture would bo incurred. In our case, the word, “foreigner.” is satisfied by confining it to the subjects of neutral nations, and cannot be taken to embrace a citizen of Maryland — an alien enemy — without forcing men to commit treason, and thereby incurring the highest forfeiture known to the law.</p>

<p>Rabeas Corpus.</p>

Tiu-- w:i¿ i-.n indiclnsciit for uukulaRy tried before Suipiv •J., at trie Court of Oyer and Terminer, for the County of Lincoln, on the first day of February, 1804.. i3o much of the ease as is material is stated in the opinion ot the Court.

This was a Fiera Facias to charge the defendant as se-®-eial bail of one Campbell tried before Osborne, Judge, at Fall Term of Orange Superior Court 1862, upon the following statement of facts agreed on. by the parties.

TMs was a petition to discontinue a cartway tried before Shipp, J., at Spring Term of Buncombe Superior Court,. 1864. Tbe defendant bad obtained an order for laying off a cartway leading to bis mill through the plaintiff’s land and tbe way had been laid off accordingly. . This petition was filed in the County Court to discontinué the way and came to the Superior Court by appeal.

This was an action on the case tried before Shipp,, J., at th*e Fall Terra oí Macoii Superior Oourt, 1863. The plaintiff declared against the defendant as a common carrier for the loss of Ms trunk aud its contents.

<p>Testator gave to Lia wi(e g, tract of-land for, ber.life, and after disposing Of'sever&l other articles.of property and sums of money says: “ All my prope> ty that is not named, both real and personal, is to be sold and alter paying all my just debts, to be equally divided" between my lawful heirs in such a- way as to make them all equal." The reversion in the land devised to ihb wife for life falls into the residue and must be sold foran'equal division.</p> <p>No action can be sustained on a covenant made by one of the heirs who had received more than his share, to secure the excess so received by him, until the reversion has been sold.</p>

This was an action of ejectment tried before Gii.uam, j. at the So-iug Tern: of Grange Superior Court, 3 864. Hugh Currie oi' Orange count}* made hi.- will in 1849 where by lie devised, as follows : 1 give and devise to my son William Currie, if lie be living and returns to the County of Orange, the plantation whereon I now live, containing.

<p>If the general issue be pleaded together with special pleas and tlijurev fin'd all the issues in favor of the defendant, the Supreme Court can not reverse the judgment for error in the charge of the Judge respect ii,g the matter of the special pleas.</p> <p>It can not be assigned for error time the Judge did not charge the jury on anoint which the party did not make at the. trial.</p> <p>The cases of Morisey vs. Bunting, 1 l>t«v. Rep. 3. Ma.-iin vs,. Waugh h Dev, and Bat. Rep. 517. Cole vs. Cole 1 Jivd. Hop. 4H0. cited and improved.</p>

<p>This was a suit begun by warrant before a Justice of the Peace and tried before Heath, Judge at Pall Term of Johnston Superior Court, 1860.</p> <p>The denfedant wastho obligee of a bond executed by one Moore. He indorsed it to the plaintiff.by writing these words on the hack, “Eli Olive, for sixty days, 19 Nov., 1858.” The warrant was brought on the 25th Dec. 1859, a demand having been made on. defendant a few days before. No evidence was offered of any communication between the parties concerning the import of the indorsement or of any consult ration o'her tln^n what is' implied by the indorsement. A verdict was taken lor the plaintiff subject to tbo opinion of ty 3 Court, ami the. «.fudge being of opinion with the doibiubuit on tin* «¡mistión of law reserved, the verdict was sot asido and the plaintiff nonsuited. From ibis judgment, the <lc‘bud-ant ’¡¡puiied.</p>

<p>Where toe proprietors !Ulfl mar.agers of .1 <-honl o: bein' applied to by a parent, to rev ive his svis as ícn dars, iuCrui him rtf their willingness tc receive t.h.:m, and send him a statement of their terms, o.ie of which is “when i placo is ongigo-l,t.h-¡ sussi m's chargeis considered due, unless the boy he prevented from coming by net of God,” and the parent, by letter expresses his acceptance, of !!->■ terms, tinngh he does nut send his sons to tb ¡school, he is liable to p,.y fr a session’s board and tuition,- , Tho prop;! ¡tors proving their ability and wiliiugnoss to comply ■' ith tho contract on their pirfc.</p> <p>It there be >i:ly one event on which ra-noy is to become payable, and tc re is no adequate means oí ascertaining tho preciso damage that may result to the plaintiff from the breach of the contract, it is competent lor the parties to fix a given amount of coiopu.eation m ordor to avoid tho difficulty.</p>

This was an action oí assumpsit for money' had and received, tried before Osborne, Judge attbe Fall Term, 18(53, of Cumberland Superior Court, on the general issue.

Tbe prisoner was índice; in rim Suporh ; Court o! Tv. for Wake County ami tno cane was re, loved to Cm >Snpm-ior Court for Johnston County, vnereir, was tried at toe bn, ,-ug Term, 186-1. before Death Judge, The transcript, of the r On his trial one Patrick, a witness for the State, nvoie that on tho day of the homicide, Dec. 12th, 1861, Kennedy, the deceased, and Harwood, the prisoner, were at Ins house in the county of Wake.

<p>This was an indictrhent tried at Fall Term of Burke’Superior Court, 18f>3, before Howard, Judge.</p> <p>■The defendant was indicted for selling spirituous liquors by the small measure without license. (See Iiev. Code, eh, 34, s. 94, and eh. 19, s. (1.) He admitted ictailing in November, 1862, and produced, in justification of his doing so, a Pcense to retail from the Sheriff of Buike-io one \V. C. Good from February, 18G2, to February, 8(13, ami a japer writing from Good to himself in words and figures as follows, viz. : Know all men by these presents tl at 1, AV..C. Good have employe d J, C. Me Nee ley to act for me in my absence and to'manage my grocery store and to retad epir-ituous liquors for me in the town of Morgan ton, and if he prefers doing so he may have the one-half of the profits instead of the salary I have promised him. Given urcler my hand and seal this Octohev 1st, 18(12.</p> <p>W. C.\ GOOD, u. S.</p> <p>It was proved that at the date of this instrument Cood was taken into the army as a conscript, where lie had remained all the tune since, and that the instrument was executed for the purpose of continuing his business in Morgan ton.</p> <p>The Court charged the jury that the business of retailing must be under the control and supervision of the person-licensed, and that be Lad no right to delegate another to retail in bis stead during such an absence as that of a soldier enlisted for three years or the war. The defendant excepted to the instruction.. Verdict of guilty and judgment.</p>

<p>A conveyance of latiíl tvs a man and his wife and thek heirs, vests the eti* iirety lu each of them, and upou the death' of one of them, the survivor takes the who!;? iu severalty,</p> <p>The case of Denoo, demise of Ms (¡ley vs. Whitmore, 2 Dev. and Bit. 68T, cited and approved.</p>

<p>The defendant was indicted for stealing cotton cloth from the storehouse of the prosecutor. The goods had been «stolen about six weeks, when they were found in a house rented by the defendant, in which he and his wife and no other person lived. The defendant staid at a store adjacent to that of the prosecutor, and there was an opening in tho partition wall between the two stores, through which » man might pass from one to the other. The prosecutor lost many other articles besides the cloth, some of which .were mens’ wearing apparel. One of these garments bad been stolen á short time before the finding of the cotton cloth, and was found in the defendants’ house at the samet time. The cotton cloth was identified by the prosecutor by s, mark put upon.it in the course of business.</p> <p>The Court charged'lite jury that the goods being foupd in the bouse of the defendant were presumed to he in hia possession.; hut, owing to the length- of time which bad elapsed from the stcalingof the goo Is until the discovery of them in the possession of the defendant, no presumption .could arise that he had stolen them, hut the fact of his haying them in possession was evidence which they would consider with the other evidence in the cause in determining his guilt or innocence. Verdict guilty and judgment'accordingly.</p>

This was an indictment against three persons fpr a forcible trespass in taking and carrying away the .p’a’ntiff'a corn tried before Osborne, Judge, at Spring Term, 1864, of the Superior Court for Davie County.

<p>A1! indictment. upon the 29th smmI'o of rh. 107, of R>v. Cede,is sufficient if if uvors that the defendant tit 1 “ per nit the said slave I’.iygy to ket>p h-ima ti h-rsilf as a fro.') p>rs>r;." • A i I in the second Court, did “ connive at mid negro f,lav<* keeping hons» to herself as a free person."</p> <p>A, Iving the owner rtf a fiuile sIav-% Isft, fcna county several years befrw® fit - ti -di i» of the indictment. At the time of going away ha convty<i! the h' .us» *nd lot in which the s! «vs livid, t« the defen I mt, and give him s'so a nuts fir $50. in ronsideiation that the defendant w-tild sup-pn-t the slave am? her husA-and, hath being old, mr the rest of their lives,, T «is is a sala of the slave from A to the defendant.</p>

<p>Ar. imlirtirent at- common' lav1 for a forcible entry into ■“ tbe. house of John Bel!. Mary Bol! being then and there present, and forbidding Ibes une ’’ is fa tally defectivo for waht of an averment that it is the dwelling home of J. B , or that M. 13. i< the v it, daughter or other rra tid'er of the family of .1. IS.' ' . • •</p>

<p>If a man break* ami entera into a dwelling; house by night with intent to commit a felony, the crime <jf burglary is consummated, though after entering the house he desists from an attempt to commit the felony, through fear or because he is resisted.</p> <p>The intent to commit a fdony tniy apocar from antecedent circumstances, an 1 if there be a 'broib'-' .-ncry into- the house in the night, the intent so appearing, it is burglary.</p>

<p>A bond for a certain sum of money payable to A or order with interest from a day preceding its date, is payable immediately, although it purports to be given for the price of bricks to be delivered at a subsequent day. The case of Goodloe vs. Taylor, 3 Hawks, 458, cited and approved.</p>

<p>This was a petitioner 'for the division of slaves.' The only materia] fact in the case is stated in the opinion of the Court.</p>

<p>Tbis was an action of debt on award tried before Heath, Judge, at Fall Term of Orange Superior Court, 1863.</p> <p>It appeared on the. trial that the plaintiff and defendant, on the 23d of March, 1859, chose John U. Kirkland and John Berry to settle a'dispute between them by arbitration, and executed an instrument under seal of which the following is a copy:</p> <p>Know all men by these presents that James R. 8. Walker and Sally Walker, both of the County of Orange and State of North Carolina, acknowledge themselves indebted in the sum of five thousand dollars to any person suing for the same good and lawful currency of .North Carolina, of which we bind ourselves and our heirs and assigns. In testimony whereof we set our hands and affix our seals, this .the 23d March, 185.9. „■</p> <p>The condition of the above obligation ,is such whereas James R, S. Walker and Salh Walker have agreed to leave a matter <b dispute i.o referees,^as they cannot settle it themselves,- viz: John U. Kirkland and John Berry, they are their referees to settle the matter in controversy ; James R. 8.- Walker having his letters examined on trial with other testimony. Sally Walker having the privilege to produce .testimony on the trial to rebut the evidence in said letters, with the understanding that the said James R. 8. Walker is to leave the mills which is in -dispute, surrender to Sally Walker the mill key and leave within ten days after this paper is signed. Then, after the referees hearing the testimony on both sides, shall decide that James R. S. Walker is entitled to'damages whatever" the damages shall be laid at, the said Sally Walker is to pay to the said Jemes R. S. Walker; but should the referees find, upon examination, that Sally Walker is damaged, instead of James R. S. Walker, then the said James R. S. Walker is to make it good to Sally Walker, whatever it be.</p> <p>The arbitrators found that the plaintiff had removed from Tennessee to this State at the solicitation of the defendant and in expectation of pecuniary advantages promised by her, and that he had suffered a loss thereby of $500, and that he was not indebted to her on the mill books or otherwise, and they award that she pay him $500, and that he deliver to her the mill books. The plaintiff proved the performance of what he was required to do, both by the dead and the award. The defendant contended that the arbitration had been corruptly conducted, and as evidence of this allegation showed that she had offered evidence before the arbitrators of a battery committed on her by the plaintiff, whereby sbe insisted sbe was greatly injured; which the arbitrators refused to hear. The plaintiff contended that this matter was not submitted to arbitration, and offered to show that the only matter submitted was a question of damages alleged to have arisen from the plaintiff’s having removed from .Tennessee to North Carolina, .because of promises made by the defendant to him, which were alleged to have been broken. To the reception of this evidence the defendant objected, on the ground that as the submission was by deed, parol evidence could not be given to show what was submitted. The Judge permitted the evidence to go the jury, reserving the question of its corn-potency, and giving leave to the defendant to move, to enter- a nonsuit in case he should be of opinion that the evidence offered by' the defendant was competent. Under the instructions of the Court, the jury found a verdict for the plaintiff for the- amount awarded and interest. The defendant moved to enter a nonsuit according to leave given. The Court refused the motion and gave judgment for the plaintiff upon the verdict.</p>

<p>“Where a person in his last sickness desired the physician to write his will and the physician declined to do it, but told him that A and B. were in the piazza and that he might'make his will by ora! declarations in their presence; and A and B were called into the sick man's presence by his direction, and addressina; A bv name, he stated to him1 in presence o f B and the physician, how he wM'vj-l his nr merty to bb divided, and named A and another as his ”s > ".u ; ■ -. th it, is i suffi •ic'.it, rojaiio teslhim to make a valid nuncupative will.</p>

<p>A husband cirm-t be convicted of a battery on his vife uijíckí :.o i fiicis a. permanent injury or asns Hiteh excessive \ile;;'.-e or eruoltv -is indicates malignity or vindictivem-s.-; and it make,- •'<) diffenric." tba! 'he husban l and wife are dvi; g .k p,'irate by agri-cnic.i t. '</p> <p>The casus-of the Stale vs Per.dcrgr.t.w, 2 I)-v. ¡.ud 15,it-, 3tió, snd .Jo;;* vs. Joyner, 6 Jones, Rq., Í525, oi:.-! and approved.'</p>

<p>This was a petition fora cartway over the defendant’s land, heard by Heath, Judge, at Northampton Spring Term of the Superior Court, 1863. .</p> <p>The facts are stated in the opinion of the Court. .</p>

<p>Whenever a testator shows an intention to dispose of ali hts property, and uses words sufficient for that purpose, any estates to which he is entitled in reversion will pass.</p> <p>Testator gave a tract of land to his wife for life1 and after several bequests of money and specific legacies, says, “my desire is that all the property that I have; not willed away, shall be sold after my death and equally divided between toy-six children," &c.</p> <p>The reversion in the land after the end of the widow’s estate for life passe# by the residuary douse. ” »</p>

<p>An aetion .on the ease brought by A against B for fraudulently removing a debtor is tried, and a verdict found for defendant. The same jury’ are tendered in a cause of C against R for the same act of removing, and are challenged by the plaintiff. This is a challenge to the polls and cot to the array.</p> <p>It is a principal cause of challenge, involving matter of law, and.therefore the judgment of the Court below upon it, may be reviewed in this Court.</p> <p>The jurors challenged, were under a legal bias by reason of having decided the case of Goodman vs. Harris, and the challenge ought to have been allowed.</p> <p>Jurors ought not to be asked either on oath or otherwise, whether their minds are in such a state that they can try a case fairly and impartially. Their answers can have no influence on the question of their competency, . but it is an improper practice to ask them.</p> <p>The case of Sehorn vs. Williams, 6 Jones, 515, cited and approved.</p>

This was a writ of mandamus at the suit of the Solicitor of' the Seventh Judicial Circuit, on the relation of Elijah Herbert against the defendants/ commanding them to procure a conveyance to the Chairman of the County Court ol Clay County, of a tract of land which had been selected as the writ supposed, by the commissioners appointed for that purpose, for, the County site of that County, or to show cause at the next term.

<p>This was an action of, trover, tried before Heath, Judge, at Pali Term of Orange Superior Court, 1863.</p> <p>The plaintiff proved that in' 185$ he was the owner .of a grey mare which was laid-off to him as a housekeeper by freeholders acting under the provisions of the Revised Code, ck. 45, secs. 8 and-9, and that a list of the; property so laid off, including the mare valued therein at $35.15, was made out and returned to the Clerk of the County Court, andthat within a fe.w weeks thereafter he exchanged the grey mare for a sorrel mare, being the one con.cerning which this suit was brought. - '</p> <p>The defendant proved that he had purchased the mare at a sale'made under a judgment and execution against the plaintiff. The Judge reserved the question of law as to the exemption of the mare from execution, and under Ms instructions the jury found a verdict for the plaintiff. The Judge being of opinion with the plaintiff on the question of law reserved, gave judgment according to the verdict, and the defendant- appealed.</p>

<p>Where a witness, who had an interest in a cause, gives or accepts a release in order to extinguish bis interest, which expresses to be given in consideration of a sum of money named therein, it is'competent for the other party to ask him whether there was in fact any consideration.</p> <p>A deed absolute on its face which is intended to operate as a mortgage, is void in law. i</p> <p>If any part of the consideration of a deed be feigned or fraudulent as to' creditors, the whole deed is void as to them,</p> <p>A and B were partners in trade-in. Í851 and 1852; an account is taken in 1857, by which a balance is ascertained to be due to B. - In 1855 A conveys his property to C without a valuable consideration, the conveyance is void as to B, for he was a creditor of A from 1852.</p> <p>A deed made with the intent to convey property in discharge of a supposed debt, which in law is not a debt, is void against creditors, although the alienor thought he owed the debt, and made the conveyance in discharge of’his supposed legal obligation.</p> <p>The cases of Halcombe vs. Ray, 1 Ired., 340, and Stone vs. Marshall, 7 Jones, 300, cited and approved. , '</p> <p>A conveyance of property, absolute on its. face, aad declared to be made in payment of a debt, is a mortgage ; if the suppesed debt be merely an obligation on the part of the vendor to indemnify the vendee against an event which has not happened, and may never happen.</p>

This was an. indictment against a slave, tried before Osbourne, Judge, at the Spring Term of Davie Superior Court, 1864. The indictment contained. three counts. The first, for carnally knowing and abusing a female child 'under the age of ten years'. The second, for assault on a white woman with intent to commit a rape.

This was an indictment for murder, tried before Osboríte, Judge, at the Fall Term of Richmond Superior Court, 1863. The defendant was indicted for the murder of one Angus Campbell.

This was an indiotme'iit tried at Spring Term of Rock-ingham Superior Court, 1864, before Howard, Judge. ■ The indictment ^charged that “ James Lewis, laborer, late of the County of Rockingham, on the first day of August, in the year of our Lord, one thousand eight hundred and sixty-three, and on divers other times, &c., with force and arms at the County aforesaid, did knowingly aid, assis.t, harbor and maintain one L. Gr.

This was an action on the cáse tried before Baimv, .Judge, at Fail Tenn of Davie Superior Court, 1863. The suit was brought to recover damages from tho defendants for so negligently using their machine for thrashing wheat, that the plaintiff’s wheat which they were thrashing ror hire was burned and consumes!. The plaintiff proved that- the defendants were employed to thrash his wheat and Basil Graither’s wheat with a thrashing machine.

.Oñ the firsl- day of tbe term -Bragg and Strong, on behalf of Gatlin, a Captain in tbe army of tbe Confederate.

A writ of certiorari was sued out by Capt. Gatlin, (see the case of Walton .us.- Gatlin on the'motion dor a-cer-tiorari,) returnable… Held: “ that a legislative act, declaring that certain lands which should be purchased for the Indians, should not thereafter be subject to any tax, constituted a contract which could not be rescinded by subsequent legislative act, such repealing act being void under that clause of the Constitution of the United States, which prohibits a…

<p>Raleas Corpus.</p>

<p> Habeas Corpus. </p>

<p>Saleas Corpus.</p>

<p>Habeas Corpus:</p>

<p>Haó<^s Corpus.</p>

<p>Habeas Corpus.</p>

<p> eas @orp\ís, </p>