Volume 61 — North Carolina Reports

<p>Ejectment, tried before Saunders, J., at Fall Term, 1864 , of Halifax Superior Court.</p> <p>The plaintiff claimed title under the will of John Branch, deceased ; the tract in question being that described in the second clause, as follows: “ Then I give to my daughter, Martha E. Bradford, the following negroes, viz., &c., also my plantation between Burnt coat and Beaverdam swamp.” The words in italics were afterwards erased, and cancelled by tbe testator, who made a memorandum thereof, at the foot of the will, in his own handwriting. Upon the probate of the will the cancelled words were rejected by the court as part of the will, and the rest admitted to probate.</p> <p>The defendant claimed title to the land, under the following clause of the same will: “ Then I give to my executors, in trust for the benefit of my daughter, Sally Hunter, &c., all that portion of my Enfield tract of land lying north of the old road leading from Old Enfield to Halifax town, together with,” &c,; and offered evidence tending to show that the Enfield tract of land embraced the land in controversy. This evidence was objected to by the plaintiff, and rejected by the court.</p> <p>The court charged the jury that, although the clause devising to the executors in trust, &c., might have included the land in controversy, if there had been in the will, as originally written, no clause devising it to Mrs. Bradford, yet, that inasmuch as the land was not devised to the trus- • tees before the cancellation, the will could not, after that, operate to convey the land. The defendant excepted. Verdict and judgment for the plaintiff. Appeal by the defendant.</p>

This was an appeal from an order by Warren, J., at Spring Term, 1866, of the Superior Court for Craven county, made in a contest for administration upon the estate of one Raymond Castrix, deceased. The facts were, that at December Term, 1865, of Craven County Court, letters of administration upon that estate were granted to the defendant, and he was duly qualified.

Original Attachment: from an order in which, by Buxton, J., at Spring Term, 1866, of New Hanover Superior Court, (the return term,) the defendant appealed. The facts appear sufficiently in the opinion of the court.

Trespass on the case, tried before Shephard, J., at Fall Term, 1859, of Nash Superior Court. The facts were, that at November Term, 1851, the County Court of Nash county hound a base-born free negro child as an apprentice to the plaintiff.

Misdemeanor, in not rendering an account of their business, &c., as required by the ordinance of the 18th of October, 1865, concerning Revenue, &c., tried before Warren, J., at Spring Term, 1806, of Craven Superior Court. The defendants wore merchants who had done business in Newbern as partners, from 1863 to 1866, and in January, 1866, they refused to render any statement of their business during 1865, to one Harper, who demanded the same as sheriff of Craven.

Repievin, before Buxton, J., at Spring Term, 1866, of the Superior Court for New Hanover county. The facts are sufficiently stated in the opinion of the court.

Ejectment, tried before Bailey, J, at tbe Fall Term, 1862, of Moore Superior Court. The plaintiff introduced a grant to Daniel Thompson for the land in controversy, and proved that Thompson died before the date of the demise, (viz. 29th January, 1858,) and that the lessors of the plaintiff were his heirs at law. He further proved that the defendant was in possession at the time of the service of the declaration.

This was an appeal from an order made by Mitchell, J., at Spring Term, 1866, of Rowan Superior Court. The facts are sufficiently stated in the opinion of the court.

<p>If, pending an appeal in a criminal' case, the statute authorizing the indictment is repealed, judgment will he arrested.</p>

Assumpsit, tried before French J., at Spring Term, 1864, of New Hanover Superior Court. The following is the substance of the case agreed, submitted to his Honor, and then transmitted to this court: The plaintiff, under a special permit from the President the Wilmington and Charlotte Eailroad Company, in February, 1863., travelled sixty-five miles on the road of said company as “a dead-head,” paying nothing for fare.

Debt upon a bond, brought up by successive appeals from the judgment of a justice of the peace for Oleaveland county. The following is the case agreed, submitted to Shipp, J., at Spring Term, 1866, of Cleavelaud Superior Court. The plaintiff, on the 3d of March, 1865, exposed to public sale a cow, and the defendant Miller became the purchaser, and, in accordance with the terms of sale, gave the following bond for the purchase money : $11.00.

Trespass on the case, tried before Kerr, J., at Eall Term, 1862, of the Superior Court of Union county. The case; .stated by his Honor, was as. follows: This was an action for deceit and false warranty in the sale of a mule. The plaintiffs declared as partners acting and trading under the style and firm of Jacob Little & Company.

Petition for a certiorari, brought up by an appeal from an order dismissing the petition j, made by Osborne, J., at Fall Term, 1864, of Rutherford Superior Court. The proceedings in.the courts below are sufficiently stated in the opinion.

Petition por a cartway, filed at December Term, 1862, of Davie County Court. At March Term, 1863, tbe petition was dismissed, and thereupon the petitioner prayed an appeal to the Superior Court. Afterwards, during the same term, the petitioner moved to amend his petition, and this ■was allowed by the court.

Debs, upon a promissory note, returned to Rowan Superior Court, at Fall Term, 1864. At Spring Term, 1866, no pleas having been entered, the plaintiff moved for judgment according to the note. The defendant resisted this motion upon the ground that the stay law of 1866, (Acts of 1865-’6, c 16,) gave the defendant further time to plead. Mitchell, J., refused to give the judgment prayed for, and thereupon the plaintiff appealed to the Supreme Court.

Murder, tried at Spring Term of Rowan Superior Court, before Mitchell, J. The prisoner was convicted and sentenced, and thereupon appealed to this court. It is unnecessary to make any statement of the case.

Murder, tried at Spring Term, 1866, of Eockingbam Superior Court, before Gilliam, J. Upon tbe trial, the jury found by special verdict tbe following facts: ‘‘the prisoner, Thomas Broadnax, was a slave, and in January, 1865, was the property of Dr. E. T. Brodnax, of Eockingham county, and the deceased was the overseer of the said Brodnax, and entrusted with the management of the prisoner at the time of the commission of the homicide ; that late in the evening of the 2d day of…

<p>Burglary, tried before Mitchell, J., at Spring Term, 1866, of Cabarrus Superior Court. The prisoner was convicted, and, the rule which had been obtained for a new trial having been discharged, judgment was pronounced according to law. Thereupon he appealed to this court.</p> <p>The following is the case stated by his Honor, so far as the opinion of the court renders it necessary that it shall be given.</p> <p>The prisoner, Lawson, then a slave, and George, a free man of color, were indicted at Fall Term, 1864, of Cabarrus Snperior Court, for a burglary, committed upon the dwelling house of John Petre. „. * On the second day after the burglary had been committed, several persons came together at the house of the prosecutor, to aid him in detecting the perpetrators and recovering his lost property. Information indicated George and Lawson as the criminals. The former lived-about three-quarters of a mile from Petre, and Lawson lived about a mile distant in the opposite direction. One of the party went to apprehend George, and two others after Lawson. George was brought first and tied- at the house of the prosecutor, and soon afterwards Lawson was produced.</p> <p>The- party endeavored by threats, and hy severe whipping,. to extort from George a discovery of the stolen property. During a-pause in this whipping Lawson said: If you will not whip me, and will go with me, I will show you the property. The party who had apprehended Lawson had not tied him. They found him at work, and he denied all knowledge of the burglary, and denounced, in strong terms, any one that would rob such a man as old Mr. Petre. He walked with the party to the house of Petre, and was not more than fifteen yards distant from where George was confined, hut was the object of very little attention, until he made the remark above recited. Nether threats nor promises had heen made to him. After he made the offer, two of the party went with him, and, at the distance of about four hundred yards from the house of the prosecutor, he showed them the stolen property, concealed under a covering of brush. As they returned with the goods, Lawson, without any incitement, stated voluntarily, that he and George had broken open the window of the room from tohich the goods were taken, with an axe and iron wedge ; that George had entered through the window and handed him the property at the window; that George kept nothing but one bale of cotton-yarn, and he, Lawson, undertook to conceal the remainder of the property until he could sell it for their joint benefit.</p> <p>The evidence of the remarks made by Lawson previous to his going for the stolen property, and of the statement made by him after it was found and the party was returning, was objected to by the counsel for the prisoner, but was admitted by the court. And for this the prisoner excepte' -.</p>

Rape, tried at Spring Term, 1866, of McDowell Superior Court, before Shipp, J. Prom the judgment in the case, the defendant appealed to this court. The person upon whom the crime was committed, Sarah Rooker, was a girl of between 13 and 14 years of age, and stated that having been upon a visit at a neighbor’s house in Rutherford county, about 3 or 4 o’clock she started to her father’s house, which was a mile or so distant.

Indictment, charging, in one count, a ‘larceny of “ five bushels of corn, &c., the property of,” &c.: in the other, that the defendant, “ five bushels of corn, &c., the property of W. R., feloniously did receive, knowing the same to have been stolen.” Upon the trial at Mecklenburg Superior Court, Spring Term, 1866, after a-verdict of guilty, there were motions for a new trial, and in arrest of judgment, which having been overruled by Mitchell, J., the defendant appealed to…

Petition, for a public road, filed at October Term, 1856y of Mecklenburg County Court. After a judgment in that court the case was carried to the Superior Court, iu which at Fall Term, 1858, another judgment in favor of the petitioners was made, and a procedendo awarded to- the County Court. By virtue of said procedendo- the County Court issued a writ to the sheriff, and under an: alias thereof a report was filed at October .Term, 1859, but set aside by the-court.

<p>In deciding questions which arise under writs of Saleas Corpus, the judiciary may review and control the action of the Governor m regard to points of law; but cannot interfere with such action in regard to any matter within the discretion of the Governor.</p> <p>The clause in the Constitution of the United States requiring that fugitives from justice charged with treason, felony or other crime, shall be delivered up, &c., is to be construed so as to include acts made criminal by amendments in the laws of the several States, and is not to be limited to such only as are crimes at common law.</p> <p>Where the prisoner had already once been delivered up by the Governor for the crime in question, and thereupon, having been allowed bail, forfeited his bond, and was again a fugitive, held, that it was clearly within the power of the Governor to order a second arrest and surrender.</p> <p>The provisions in the State Constitution for the call of a Convention do not profess to extend to every case in which such a call may be required.</p> <p>The anarchy in North Carolina, resulting from the close of the late war, having, for the time, annulled the provisions under the State Constitution for such a call, it was competent and proper for the United States to afford to the people an opportunity of electing delegates to a Convention.</p> <p>The delegates thus assembled composed a rightful Convention of the people.</p> <p>The authority of that Convention is not affected by the fact that some oí the citizens of the State, not having been then pardoned, were not permitted to vote at the election.</p> <p>The elections had and the officers chosen, by virtue of the ordinances of that Convention, are such, de jure.</p>

<p>A retrospective law, taxing the business of citizens during the whole of the current year in which such law is passed, is not unconstitutional.</p> <p>A law punishing a prospective refusal to render for taxation an account of business done before the passage of the law, is not ex post facto.</p> <p>It was competent for the State, in October, 1865, to pass a law taxing business done at any time during that year, at any place within its boundaries, even although within what were called “ the Federal lines,” and at places where there were then no civil officers.</p> <p>The functions of a court in respect to statutes are but two: 1st, to ascertain their meaning: and, 2d, to decide upon their constitutionality.</p> <p>Except as restrained by the laws of the United States, and the Constitution of the State, the taxing power of the State extends to all objects within its territory, and has no limitation except in the responsibility of the representative to his constituents.</p> <p>A tax upon the past business of the current year is not “a capitation tax."</p> <p>Persons licensed under the revenue laws of the United States, are not thereby “ officers” of the United States, or withdrawn from the operation of the taxing powers of a State.</p> <p>The occupation, during the late war, of parts of the State by the forces of the United States, cannot be regarded as an occupation by a “public enemy.”</p> <p>The ordinance of the 1st Oct., 1865, entitled “ An ordinance to provide revenue,” &c., in some sections, operates retrospectively for the whole of that year; such operation is valid, and binds persons even during such time within that year as they did business in places “ within the Federal lines.”</p>

<p>In deciding upon a question of false imprisonment, raised under a writ of Saleas Cm-pus, the Judge may investigate the validity of any order of court relied upon, as here, to prove the petitioners to be apprentices of him who detains them.</p> <p>A County Court has no power to bind as apprentices persons who have no notice of the proceedings for that purpose: and it is prudent in the court to require that such persons shall be present when bound.</p>

<p>'Citizens of North. Carolina, who authorize a suit to be brought in Texas, are personally liable for the costs adjudged against them upon their failure in such suit, although they may never have been, in that State; and a judgment therefor may be enforced in North Carolina as a valid foreign judgment.</p> <p>In an action upon a judgment g-iveu in another State, after it is seen that the person against whom such judgment was given was regularly made a party to that suit, no question can be made whether that court ought to have rendered such a judgment; but full faith and credit must be given to it.</p> <p>■Costs awarded upon retaxation are virtually included in the original judgment in a cause.</p> <p>Notice of retaxation, if necessary at all, may be served upon an attorney in the suit to which the costs are claimed to be incident.</p> <p>After an attorney has been admitted by the court to represent a party, he cannot, unless with the consent of the court, be discharged before the end of the suit.</p> <p>A suit does not end before complete satisfaction of, or discharge from, the judgment given therein.</p>

Replevin, to recover possession of a steamboat, tried before Buxton, Ji, .upon the pleas, General issue Property in the defendant, at December Special Term, 1866, of the Superior Court of Chatham.

Assault, tried before Buxton, J., at Fall Term, 1866, of the Superior Court of Rowan. The assault was charged to have been committed upon one Shaver, as the latter was walking to and fro in the street in front of the door of defendant’s grocery; The evidence showed that at this time the defendant, stood in his door with a pistol in his hand presented, sometimes bearing upon Shaver and sometimes not, and swearing that if Shaver came in he would shoot him.

Motion, to set aside an execution, made before his Honor, Warren, J., at Fall Term, 1866, of the Superior Court of Hertford. The facts were as follows: The plaintiff, at Fall Term, .1864, had obtained a judgment by default against the defendant, A fi. fa., tested of that term, had issued February 14th, 1865, being returnable to Spring Term, 1865.

Trespass vi et arms, brought to Fall Term, 1866, oí ,ihe Superior Court of Pasquotank ; Plea, Not Guilty. The case agreed showed that the plaintiff a resident of the State, purchased in Virginia, of a resident there, two hundred gallons of whiskey, and brought it into the county of Pasquotank, and there sold it.

<p>An act incorporating a Perry or Toll-bridge, is a private act: therefore,</p> <p>The court cannot take judicial notice of the act of December, 1866, which amends the charter of the Washington Toll-bridge Company.</p>

Caveat, tried before his Honor, Ba-raes, J., at Fall Term 1866, of the Superior Court of Carteret. The will in question had an attestation olanse, bnt no .•subscribing witnesses: and it was duly proved to be in the ¡handwriting of the deceased, one W. S. Ward.

<p>The right of suing a sheriff to recover taxes that have been paid under protest, does not apply to taxes that have been collected by virtue of a tax list.</p> <p>A tax list is of the nature of an execution.</p> <p>Distinction as to the above right in cases where the tax is collected by a sheriff without a list, and with one, stated and explained.</p> <p>The only remedy for a person who has been improperly assessed by the list-takers is that provided under the Revenue Acte.</p>

<p>The act of 1846, c. 1, (Code, c. 46, s. 44,) giving to an executor a right to file a petition to sell real estate, &c., does not apply to a case in which he has full power to sell such estate under the will.</p> <p>Nor does it apply in such case, even if the executor has by accident lost the personal estate of his testator, and, for that reason alone, desires to resort to the realty, his remedy in such case being only in equity.</p> <p>The remedy provided by the act applies only to cases in which otherwise the creditor would be compelled to resort to a scire facias against the heirs.</p>

Assault, with intent to kill, tried before his Honor, Barnes, J., at Fall Term, 1866, of Duplin. The indictment charged that both of the defendants made an assault upon Lipman Aarons, with an intent to kill him. The evidence showed that whilst Aarons and his wife, daughter and son, were sitting one night upon the front piazza of his house, during the fall of 1866, a gun was fired at them, the shot passing between them, and lodging in the wall of the house.

Motion to set aside a judgment, allowed by Barnes, J., at Fall Term, 1866, of the Superior Court of Wayne.

Highway Robbery, tried before Mervimon, Ji, at Fall Term, 1866, of the Superior Court of Wake. The prisoner was indicted for robbing one Solomon Greeson. The indictment was in two counts, one charging the offence to have been committed in, and the other near, the public highway. It was proved that Greeson was assaulted and robbed by three persons, while walking along.the North Carolina Rail Road, near the city of Raleigh.

Malicious Mischief, tried before Merrimon, J., at Fall Term, 1866, of tbe Superior Court of Wake. The defendants were indicted at Common Law for maliciously killing a mule, the property of one Robert Williams. The bill was found at Fall Term, 1863.

Robbery, tried at Fall Term, 1866, of the Superior Court of Columbus, before his Honor, Gilliam, J. Upon the trial it was shown that the defendant, with three others, armed with guns, went to the .house of one Stanly, in his absence, his father and his wife being there, and asked if Stanly did not have a pistol, a gun and a sword. Upon being answered that he had a sword, but no gun or pistol, they ordered it to be delivered, which was done.

Amendment of an original attachment, allowed before his Honor, Merrimon, J., at Fall Term, 1866, of the Superior Court of New-Hanover. The note, which was the foundation of the attachment, was signed by one “ C. E. Thorburn,” and the description of the defendant in the affidavit and process was the same.

<p>Larceny, tried before his Honor, Merrimon. J., at Fall Term, 1866, of tbe Superior Court of New Hanover.</p> <p>The facts were that one Tony Quince took a bucket of peas to market in Wilmington, and set it down in a cart, mistaking- the cart for that oí a friend. He then left it and went some distance to enquire about the price of peas in the market. Returning, he passed the defendant with a bucket of peas in his hand which he thought was his own, but said nothing. Finding his bucket gone, lie retraced his steps and found the defendant in possession of it, with beets and lettuce upon it, and took it from the defendant, who was insolent and unwilling to surrender it.</p> <p>The owner of the cart (introduced by the defendant) showed that upon finding the bucket in his cart, being about to move the latter, he placed the bucket upon the ground, and shortly thereafter, as he was leaving the market, he raised the bucket and enquired of the by-standers, “ Whose are they ?” adding that they did not belong to him; thereupon the defendant came up, put his hand upon the bucket and took it from the witness, who told him, “ You must give it up to the owner when he comes and calls for it.”</p> <p>The court below charged the jury that if the tacts were as stated Tony had not abandoned the bucket of peas; that the bucket was in his constructive possession; and that if the defendant in taking it had a felonious intent to steal it he was guilty.</p> <p>Verdict, “ Guilty;” Rule for a new trial; Rule discharged; Judgment, and Appeal.</p> <p>A trespass is a necessary ingredient in every larceny. 2 East P. C., 554; 1 Hawk. P. C., 33, s. 1; 1 Russ., 95; State v. England, 8 Jon., 399.</p> <p>The bucket, when taken by the defendant, was not in the actual or in the constructive possession of Tony. The owner of the cart could have maintained Trespass for it» 2 Saund. R., 47e; Blackman’s case, 1 Salk., 290. He had assumed exclusive dominion and control over it, and directed what should be done with it, having himself obtained possession bona fide. If the owner of the cart had stolen the p>eas, the defendant could not be found guilty under this charge, because the taking possession from Tony was an act completed before defendant had any part in the transaction. King’s case, Russ. & Ry. Cr. Gas., 332.</p> <p>The bucket being lost, and the owner unknown, it was not the subject of larceny. 3 Inst., 108; 1 Hawk. P. C., c. 3, s. 32; 1 Piale, 506; Tyler v. People, 6 Breese, 227; State v. Boper, 3 Dev., 473. The bucket was lost, tor the owner had put it in a different place from that in which he had supposed. The defendant received it openly, and with a trust in behalf of the owner, publicly accepted, which renders the case one in which a felonious intent could not be ascribed. $ee Wharton Cr. L., (3d ed.,) 653, note 2.</p>

Forcible Entry and Detainer, brought up by writ of recordari before Qilliam, J., at Fall Term, 1866, of the Superior Court of Columbus, and then by him quashed. Upon the return of the proceedings the petitioner assigned several errors therein.

' Forcible Entry and Detainer, before his Honor, Gilliam, J., at Fall Term, 1866, of the Superior Court of Robeson. The justice of the peace, before whom the proceedings had been, allowed the defendants to appeal to the Superior Court. On motion in that court to dismiss the appeal, the defendant proposed, on the contrary, to make an affidavit for writs of certiorari, mandamus and supersedeas.

<p>The statute upon attachment must be construed strictly.</p> <p>A plea in abatement is the proper mode of taking advantage of a defect in the affidavit for an attachment.</p> <p>The creditor’s affidavit under c. 7, s. 1, Rev. Code, must state that the removal or the absence from the county or State, or the concealment, on the part of the debtor, was for the purpose of avoiding service of ordinary process.</p>

Mandamus, heard before Barnes, J., at December Special Term, 1866, of Wake Superior Court.

Scire Facias, before his Honor, Fowle, J., at Fall Term, 1866, of the Superior Court of Alamance. The writ had been sued out of the Superior Court, returnable to Spring Term, 1864, and recited a judgment in the County Court of Alamance. At Fall Term, 1866, the plaintiff moved to dismiss the writ at the costs of the defendant, but his Honor ordered it to be dismissed at the costs of the plaintiff, and from this judgment the latter appealed.

<p>"Previously to the act of 1866, in relation to Evidence, the relatin', in an action brought in the name of the State, was not competent as a witness.</p>

Motion to set aside an execution, which, by successive appeals, had come up from an order by the County Court of Caswell.

Motion, heard before Buxton, J., at Fall Term, 1866, of the Superior Court of Rowan, upon an appeal from a decision on the same in the County Court of that county. In the County Court, at November Term, 1866, it was shown that notice of the proceedings had been served upon the defendant, as mother of the apprentice, and the person in whose custody he then was; and upon such notice a motion was made that the sheriff commit the apprentice to the custody of the master.

Ejectment, tried before his Honor, Mitchell, J., at Special Term, December, 1866, of the Superior Court of Davidson. The facts necessary to understand the opinion are sufficiently stated therein. There was a verdict below for the plaintiff’, and a rule for a new trial having been obtained and discharged, and a judgment given for the plaintiff, the defendant appealed.

Burglary, tried before Fowle, J., at Fall Term, 1866, of the Superior Court of Caswell.

Motion to strike out an entry upon an Execution Docket, and to set aside an execution; allowed by Buxton, J., at Fall Term, 1866, of the Superior Court of Iredell. From that order the plaintiff appealed to this court. The facts are sufficiently set forth in the opinion of the court.

Trover, for corn, tried before his Honor, Fowle, J., at Fall Term, 1866, of Forsyth Superior Court. The facts were that the plaintiff’s testator, on the 23d June, 1865, executed to the defendant a deed in fee for a tract of land on which there was a growing crop of corn. Evidence of various acts and admissions was given to show that the crop had been reserved by the vendor. The defendant was shown to have converted it; and a demand and refusal were also shown. . .

Larceny, tried before Buxton, J., at the.Spring Term, 1866, of the Superior Court of Sampson. Before the trial, the defendant moved to quash the indictment: 1st. because it charged the horse, which was stolen, to be the property of “ Redding Cowell, a person of color,” and 2d. because it did not conclude “ against • the form of the statute.” After they had been convicted, they moved the same objections in arrest of judgment.

Indictment for receiving stolen goods, tried upon the plea of Not Guilty, at Spring Term, 1866, of the Superior Court of Wilkes, before Mitclidl, J. The goods alleged to have been stolen were described as “ten pounds of bacon, of the value of sixpence.” The defendant was convicted, and having moved without success in arrest of judgment, afterwards obtained a rule for a new trial, which having been discharged, he appealed.

Original Attachment, before Buxton, J., at Fall Term, 1866, of Rowan Superior Court, upon a motion to quash.

<p>Debt, tried before Shipp, J., at Fall Term, 1866, of the ■Superior Court of Buncombe.</p> <p>The bond upon which the suit was brought was for $2,000, dated 2d January, Í865, with condition reciting the hire of two slaves until the 25th of December, 1865, for the sum of “ two hundred dollars,” &c , and concluding as usual. Upon the trial below it was agreed that the slaves remained in the service of the defendant until the Federal troops reached Asheville, about the 25th day of April, 1865, when they went oft' with, or under the influence .of those' troops; also, that it was proclaimed by the plaintiffs at the hiring that such money would be required as would pay the debts against the estate, and that none other would be required; and in this connexion a large debt to the Bank of Cape Fear at" Asheville was referred to, and perhaps other debts; it was also agreed that'the notes oí that bank could, at the time of the trial, be purchased at 25 cents in the dollar.</p> <p>The parties submitted to his Honor the question as to the amount that the plaintiffs were entitled to recover, especially, whether they were entitled to recover for the entire year, or only for the time that the slaves served; also, whether defendant could pay in such funds as would pay the bank debt as above.</p> <p>His Honor gave judgment, to bo discharged by the payment of fifty dollars in specie, &c. From this judgment both parties appealed.</p> <p>1. “ Dollar ” means the representative oí 100 cents;'Bou.vier, and Webster, title Dollar. Such must be taken to be the meaning of that word in .this bond, a meaning not to be varied by parol.</p> <p>2. The ordinance of the 18th of October, 1865, so far as it affects this fundamental law oí written contracts, is in direct conflict with the Federal Constitution. See Federalist, No. 44, Elliott’s Debates passim; Bburges v. CrowninsMeld, 4 Wheat., 122; Greeny. Biddle, 8 Wheat., 1; Baltimore <&e., v. Nesbit, 10 How., 395; Curran v. Arkansas, 15 How., 304; Hicks y. Hotchkiss, 7 Johns. Ch., 297; Commercial Bank v. Chambers, 8 Sm. & M., 9; Smith v. Morse, 2 Cal., 524; Quackenbush v. Darks, 1 Denio, 128, S. C., 1 Comst., .129; Planter's Bank v. Sharp, 6 How., 301; Golden v. Prince, 3 Wash., C. C., 314; Bruce v. Schuyler, 4 Gilm., 221; McMillan v. McNeil, 4 Wheat., 209; 1 Kent Lect., 19; 2 Pars. Con., 509; Barnes v. Barnes, 8 Jon., 366.</p>

Arson, tried before Werrimon, J.; at Spring Term, 1866, of the Superior Court of Buncombe. The prisoner, late the slave of Robert L. Gudger, was indicted for burning a barn belonging to one John Reeves, in Madison county, where the indictment was found and whence the trial was removed. The evidence of the prisoner’s guilt consisted mainly in his confessions, made while he was tied and under -the charge of one T. R. James, who was acting as an officer.

<p>'The clause of the-Ordinance of the Convention of June, 1866, entitled “An Ordinance to change the jurisdiction of the courts,” &e., which provides •that no scire facias should he thereafter issued to revive dormant judgments, and that every scire facias then pending should he dismissed at defendant’s cost, is not unconstitutional.</p>

Murder, tried before Buxton, J., at Fall Term, 1866, of the Superior Court of Iredell. The prisoner was indicted as principal, and one Ann Melton as accessory before the fact, in the murder of one Laura Foster, in Wilkes county in May, 1866. The bill was found at Fall Term, 1866, of Wilkes Superior Court, and upon affidavit, removed to Iredell.

Debt upon a note, carried by appeal from the County Court of -Robeson to Fall Term, 1866, of the Superior Court, Gilliam J., presiding. Upon Oyer at the appearance term in the County Court it appeared that the note declared on, bearing date November 3d, 1865, was for $135; and there were endorsed credits of $50 and $16, dated December , 1865, and July 14th, 1866, respectively.

Motion, to allow a constable to amend his return of a levy upon land, made before Gilliam, J., at Fall Term, 1866, of the Superior Court of Northampton. The motion was refused and from this judgment, and from a judgment denying a motion for a vendi. exponas, the plaintiff appealed to this court.

Indictment, in three counts, charging the defendant ivith UNLAWFULLY TRADING WITH -A SLAVE, LARCENY, AND RECEIVING STOLEN goods, knowing they were stolen, tried before Merrimon, J, at Spring Term, 1866, of the Superior Court of Nash. The indictment was found at Fall Term, 1868. - The article of which the defendant was charged in the several counts to have come into the criminal possession was a set of buggy harness.

Murder, tried before Shipp, J., at Fall Term, 1866, of the Superior Court of Buncombe. The prisoner, a person of color, was indicted with two others for the murder of “one John Wilson, a person of color,” in the county of Yancey, whence the trial was removed. It was proved that the homicide was committed in March, 1865, and that at that time the deceased was the slave of one Edney, who had purchased him of one Wilson.

<p>Petition for dower, heard, upon a case agreed, by Gilliam, J., at Fall Term, 1866, of the Superior Court of Person.</p> <p>The material facts set forth in the case agreed are as follows:</p> <p>The petitioner is the widow of one Solomon Royster, who died in the year 1865 in Person county. One Prudence Mason, the aunt of Solomon Royster, before her death in 1852, published a will, which has been duly admitted to probate, containing the following clause: “ I give and bequeath to my nephew, Solomon Royster, all of my monied estate after my just debts have been paid, for the special purpose of purchasing a tract of land, for a home for himself his mother Nancy Royster, my niece Mary Ann Royster,” &c. “For his mother Nancy Royster, as long as she may live, and for my nephews and nieces named above, as long as they may remain unmarried, and after my nephew Solomon Royster shall have complied with and performed the above special purpose, then the sole right and title shall vest in him, the said Solomon Royster, his heirs and assigns forever.” In 1854 Solomon Royster, in pursuance of the provisions of that clause, purchased a tract of land of one Willis T. Royster, who executed a deed for the same. After the premises, in which Solomon Royster is described as “ administrator of Prudence Mason,” the deed proceeds: “ That whereas the said Willis T. Royster has sold a certain tract of land hereinafter described to Solomon Royster, administrator of Prudence Mason, deceased, for valuable consideration, to wit: five hundred dollars, the said tract said to contain one hundred and six acres, &c., (describing it.) The said land is to be Mary Royster’s during her lifetime, after which time the right and title belongs to Solomon Royster, his heirs forever.” A clause is added warranting the title “ to Solomon Royster or his heirs.”</p> <p>Solomon Royster owned an interest at the time of his death in no other land than that conveyed to him as above. His mother, Nancy Royster, survived him, and is one of the parties defendant. He left two children who are also parties.</p> <p>His Honor was of opinion that the petitioner was not entitled to dower in the land, and gave judgment accordingly; whereupon the petitioner appealed.</p>

<p>A colored woman, the mother of a bastard child, has such an interest in proceedings in bastardy, within the meaning of the act of 1866, c. 40, s. 9, as to render her a competent witness against a white man, whom she alleges to be the father.</p>

Rape, tried before Buxton, J, at Fall Term, 1866, of the Superior Court of Mecklenburg. The prosecutrix, who was a widow advanced in life, testified that the prisoner pursued her, seized her by the throat, threw her down and “ acted with her as a man acts with his wife,” and that he had “full connection” with her. The prisoner was a person of color.

<p>Murder, tried before Fowle, J., at Fall Term, 1866, of the Superior Court of Forsyth.</p> <p>The points in the case sufficiently appear from the opinion.</p>

<p>Although, no bill of exceptions be filed, and it do not appear that there was any motion in arrest of judgment, the Supreme Court will examine the record to see whether there be error.</p> <p>An indictment, charging that the defendant and another “ did commit an affray, by fighting together by mutual and common consent, in public view,” includes a charge of a mutual assault and battery, and the defendant may be convicted under it, though the grand jury endorsed Nat a true hill as to the other.</p>

Ejectment, commenced in the Superior Court of Burke county, at Fall Term, 1857. The defendant, Colonel C. M. Avery, was killed in battle in June, 1864, and at Fall Term, 1867, of the Superior Court of McDowell, whither the suit had been removed, his Honor, Mitchell, J., on motion by the counsel for the defendant, adjudged that as two terms of the court had elapsed since the death of the defendant, the suit had abated. From this judgment the plaintiff appealed.

Recordari, removing the proceedings in an inquisition of forcible entry and detainer before a justice of the peace to the Superior Court of Mecklenburg, and heard before French, J., upon a motion to dismiss, at Fall Term, 1860. His Honor refused to dismiss and ordered the cause to be placed upon the trial docket, for trial by jury. The defendants appealed.

<p>Affray, tried before Mitchell, J., at Fall Term, 1866, of the Superior Court ol Caldwell.</p> <p>The four defendants convicted in this case, together with twelve others, had been^indieted for unlawfully assembling together and committing an affray.</p> <p>All of the original defendants were citizens of the Slate, and all, with the exception of one Jesse Moore, claimed to be enlisted soldiers in the Federal service. Jesse Moore and four others, who were members of the home guard organization of the State, were assembled at the house of one Carroll Moore, in Caldwell county, on the night of the 7th January, 1865. Early the next morning’the defendant Blalock, ■with a squad of men, who were some of the original defendants, approached the house armed, and, upon an attempt on the part of Jesse Moore and those with him to escape with guns in their hands, fired upon them and ordered them to halt and surrender. The fire was returned and Jesse Moore and Blalock were wounded.</p> <p>There was evidence that Blalock had been a Federal soldier for some time, and that the others about a month before this occurrence had attempted to reach the Federal lines; that while on their way they met one Davis, who claimed to be a major in the Federal service and a recruiting officer, and upon his proposing that they should enlist j as soldiers they took the oath usual upon enlistment and re-1 ceived at his hands one and a half days’ rations. Failing to reach the lines, they returned to their homes. A witness testified that he had seen Davis with the army in Tennessee, and that he was acting as a recruiting officer.</p> <p>It was further in evidence that one Hartley, a lieutenant I" in the Federal service, ordered Blalock to take a squad of men and capture the home guards at Carroll Moore’s; also that the defendants subsequently received clothing and rations as Federal soldiers.</p> <p>His Honor charged that if the defendants had never been connected, or done duty with the Federal army, the mere fact of taking the oath before Davis and receiving one and a half days’ rations would not justify the affray, although Hartley had authority to command a squad of Federal soldiers and gave the order for the capture of the home guards, at Carroll Moore’s. Prisoners excepted. ^</p> <p>Verdict, Guilty; Judgment, and Appeal.</p>

Caveat, tried before Merrimon, J., at a term of the Superior Court of Chowan, specially appointed for that purpose, begun at Edenton upon Wednesday, 1he Gfhdavof February last, and continued under special acts of the Assembly, iorfour weeks The paper writing was as follows: “I, James G. Johnston, resident in Chowan county, State of North Carolina, make this my last Will and Testament, in manner following, to wit: — I give, devise and bequeath to my friend, Mr. Edward Wood,…

<p>Tie 5ti section of tie Ordinance of 1866, entitled “An Ordinance to ciange tie jurisdiction of tie Courts,” &c., does not apply to prevent tie issue of a writ of venditioni exponas, to enforce a levy upon land made ' more tian a year and a day previously.</p> <p>That construction of a statute wiici attributes to tie Legislature tie exercise of a doubtful power, will not, in tie absence of direct words, be readily adopted.</p> <p>(Discussion of tie doctrine in Smith v. Speneei’, 8 Ire., 256.)</p>

<p>A conveyance of land to a son-in-law is not to be reckoned as an advancement to tte daughter, wto, at the death of her father, wag married to a second husband.</p> <p>A gift of slaves accompanied by a wan-anty of the title forever, (made some years before the late war,) constitutes an advancement of the value of them when given, without reference to their subsequent emancipation by the results of the war.'</p>

Motion to dismiss an attachment, heard before Shi The process was issued February 22d, 1865, by the Clerk of the Superior Court, and directed “To any lawful officer to execute and return within thirty days from the date hereof, (Sundays excepted,) ” but in the body of the writ it was returnable to the succeeding March Term of the court. It was placed in the hands of the sheriff, who levied the same February 24th, 1865, on certain property oí the defendant, real and personal.

Scire Facias, requiring defendant to show cause why a venditioni exponas should not issue, tried before Shipp, J., at Spring Term, 18 67, of the Superior Court of Pasquotank. The plaintiff had recovered judgment against the defendants for a large sum at Spring Term, 1861, of that court. A writ of fi. fa. was immediately issued, and was returned to the next term, having been levied upon certain land.

Scire Facias, tried before Warren, J., at Fall Term, 1866, of the Superior Court of Camden. The case here came up by appeal from the County Court.

, at Spring Term, 1867, of the Superior Court of New Hanover. The defendant had been arrested upon a ca. sa. from the County Court of New Hanover, and at September Term, 1859, of that court, issues of fraud were made up, and upon trial by a jury he was found guilty of fraud and concealment. From the judgment in that court the defendant appealed to the Superior Court, when the cause was continued till Spring Term, 1867.

Motion, for an execution for costs, and a writ of re-restitution upon a certificate of the judgment of the Supreme Court, in a case of forcible entry and detainer, before Fowle, J., at Spring Term, 1867, of the Superior Court of Columbus.

Ejectment, tried before Foiole, J., upon a case agreed, at-Spring Term, 1867, of the Superior Court of Stanly. The lessor of the plaintiff claimed title to the land in dispute by virtue of a deed from the administrator of Evan Stoker, deceased, executed under a decree of the County Court in a petition to make real estate assets. Evan Stoker-claimed under a deed made by the trustee in a deed in trust executed by John Stoker.

Indictment under the statute, Rev. Code, c. 34, s. 5, for carnally knowing and abusing a female child under ten years of age, tried before Meares, «7., at April Term, 1867, of the Criminal Court of New Hanover. The jury found a verdict of guilty; motion in arrest of judgment; motion overruled; rule for a new trial; rule discharged; judgment of death, and appeal. The facts sufficiently appear in the opinion of the court.

Motion to set aside a judgment by default final, beard before Mitchell, J., at Spring Term, 1867, of the Superior Court of Craven. An action of assumpsit, for an unliquidated money demand, was brought by the plaintiff against the defendants to Spring Term, 1866.

Motion, to amend a constable’s return upon an execution, and for a ven. ex., heard before Barnes, J., at Spring Term, 1867, of the Superior Court of Northampton. The case has already been before this court, — see ante, p. 217.

Exception to a report under a petition for a canal to drain lands, heard before Barnes,'J., at Spring Term, 1867, of the Superior Court of Pitt.

<p>Although, one believes the allegation to which he testifies, yet unless he has probable cause for such belief, he may be convicted, of perjury.</p> <p>Although it be error to charge that the doctrine of “reasonable doubt” does not apply in trials for misdemeanors, yet where the instructions taken altogether gave the prisoner the benefit of that doctrine, and informed the jury that they must be “fully satisfied” before convicting, held that there was no error.</p>

Scire Facias, issued from January Term, 1867,’ to- the present term of this court, upon a judgment rendered at June Term, 1864, on which only one writ of execution (returnable to December Term, 1864,) had been issued.

Trespass, Q. C. F., tried before Fowle, J., at Spring Term, 1867, of the Superior Court of Robeson. Both parties claimed under one John L. McArthur.

Motion to dismiss an appeal from an interlocutory order in the County Court, heard before Warren, J., at Spring Term, 1867, of the Superior Court of Granville. A petition had been filed in the County Court of Gran-ville under c. 71, s. 1, of the Rev. Code, asking for the condemnation of aii acre of land belonging to the defendant, for a mill site.

Motion to remand proceedings in bastardy which had been brought up from the County Court, heard before Barnes, J., at Spring Term, 1867, of the Superior Court of Northampton. Upon the return of the proceedings before the magistrate into the County Court of Northampton, the defendant’s counsel moved to quash because the proceedings did not show an affidavit by the mother, or that the child had been born within three years before the examination.

Motion, to set aside a judgment, &c., heard at Spring Term, 1867, of the Superior Court of Granville, before Warren, J. At Spring Term, 1863, of that Court, the plaintiff had recovered judgment against the defendant for $621. Upon this judgment a writ of sci. fa. issued returnable to Fall Term, 1866, and at that term judgment was taken by default.

<p>A Constable, in whose hands a claim was placed for collection on the 16th March, 1861, and who took no steps to collect till January, 1863, when he collected in Confederate currency, is responsible after a demand in 1866, for the full amount of the claim, notwithstanding the Stay Laws of May and September, 1861.</p>

Trover, for a mule, tried before Barnes, J., at Spring Térm, 1867, of the Superior Court of Franklin. The description and the circumstances attending the mule were such that each party had reasonable cause to believe it to be his.

Indictment, for Assault and Battery, tried before Mitchell, J., at Spring Term, 1867, of the Superior Court of Lenoir. The defendant pleaded autrefois convict and not guilty.

Murder, tried before Buxton, J., at the Spring Term, 1867, of the Superior Court of Burke. No statement of the facts of the case is necessary. Under the charge of the court the jury found a verdict of Guilty, and the defendant appealed. The form of the indictment is sustained by Wharton’s Prec., pp. 51 and 71; 3 Chit. C. L., 761; Arch. Cr. PL, 314 and 395. See also Given s case, 1 Mur., 452; 1 Russ. Cr., 466; Roscoe, 706; 1 East. P. G, 341; 2 Hale P. G, 185. '

Trespass, for an assault and battery, tried before Gilliam, J., at Spring Term, 1867, of the Superior Court of Rowan. Upon an afternoon in June, 1862, the plaintiff, while passing over a bridge, in the town of Salisbury, upon which the defendants, who are brothers, were standing, was assaulted by them with stones and a club, and badly bruised and injured ab'ont the head and shoulders.

Motion in proceedings in bastardy, before Gilliam, J., at Spring Term, 1867, of the Superior Court of Iredell. The proceedings before the justice of the peace were returned to the County Court of Iredell, and it not appearing on the face of the proceedings that the mother of the child was a single woman, the defendant’s counsel moved to ■quash. The motion was overruled and the defendant appealed to the Superior Court.

Trespass Q. C. F., tried at Spring Term, 1867, of the Superior Court of Randolph, before Warren, J. The plaintiff claimed under a grant from the State made-in 1858. The defendant claimed under a deed from his father made in 1830, and the latter under a deed from one Millsaps made in 1805; and Millsaps had received a grant from the State in 1783.

Trespass, tried at. Spring Term, 1867, of the Superior Court of Franklin, before Barnes, J. The evidence showed that there was a boundary ditch between the lands of the plaintiff and those of Mrs. Rebecca Patterson, and that, with the consent of the latter, he had placed in it an obstruction, (viz: a log thrown across, and rails with one end resting upon the bottom of the ditch and the other against the log,) in order to prevent sand from being carried down and choking a…

Assumpsit, begun by warrant and tried at Spring Term, 1867, of tbe Superior Court of Granville, before Warren, J. Tbe plaintiff testified that one Barnett, a son-in-law of tbe -defendant, owed bim $24, due by bond given in 1859; that in tbe same year, Barnett being about to leave tbe State and tbe plaintiff about to sue out a warrant on bis debt, tbe defendant said to bim, “Doctor, don’t warrant Barnett; be bas put property in my bands to pay bis debts, and when I sell it I…

Scire Facias, to revive an action of Trespass, heard before Barnes, J., at Spring Term, 1867, of the Superior Court of Franklin. The facts were, that in 1861, an action of Trespass was brought by the plaintiff against the deceased, Nicholas W. Arrington, to recover damages ($2,000) for the killing of her intestate. The defendant appeared, and entered pleas.

Debt, tried at Spring Term, 1867, of the Superior Court of Northampton, before Barnes, J. The facts necessary toan understanding of the opinion ■will be found therein. In. the court below the jury found a verdict ibr tire plaintiff, subject to the opinion of the Judge, upon matter reserved. Upon consideration, Ms Honor set the verdict aside, and tire plaintiff appealed.

Trespass Q. O. E., tried before Warren, J., at Spring Term, 1867, of the Superior Court of Forsyth, The evidence showed that the parties owned adjoining-lands and agreed to build a rail fence upon a boundary line between them running- East and West, the eastern half to be built and maintained by the plaintiff', and the -western half by the defendant; also that the defendant, inadvertently or in order to secure a better location for his part, placed it entirely upon the…

Trespass guare clausum fregii, tried before Mitchell, J., upon an award of arbitrators, at a special term, 1867, of the Superior Court of Caswell. The defendant appealed from a judgment of the court setting aside the award. The facts are stated in the opinion. The award is certain to a common intent, and is equivalent to a verdict of not guilty, the judgment upon which carries costs.

Replevin for a horse, tried upon the plea Property in the defendant, before Buxton, J., at Spring Term, 1867, of the Superior Court of Catawba. The horse had belonged to the plaintiffs’ intestate, and in 1862 was placed with the defendant to break and make use of for its feed.

Forcible Trespass, tried before Buxton, J., at Fall Term,, 1866, of the Superior Court of Alleghany, upon the following case agreed: The force charged was in taking a barrel of blue-stone from the possession of one Aaron Phipps. The barrel had been left with Phipps by one Hines and a constable named Eives, Hines claiming that it was the property of himself and the defendants, and Eives Maiming that it belonged to a third party.

Debt for the penalty of $100, given by the Revised Code, c.. 34, s. 118, tried before Warren, J., at Spring Term, 1867, of the Superior Court of Randolph.

Murder, tried before Green, J-, at May Term, 1867, of the criminal court of Craven. The prisoner, a colored man, was indicted for killing Tilicha Keyes, a colored woman. The deceased lived with the family of one Foreman, who kept a grocery. The prisoner and a brother had been drinking at the shop the day before the homicide. On the day of the homicide the prisoner had been in the shop, but went out and soon returned armed with a gun and pistol.

Code, c. 78, s. 5, tried before Barnes, J., at Spring Term, 1867, of tbe Superior Court of Law for Wake. The defendant Haywood was Clerk and Master in Equity for Wake County in 1860, and upon the renewal of his bond in that year, the other defendants became his sureties. An exparte petition was filed in the Court of Equity for Wake, at Spring Term, by the plaintiffs (some of whom were minors) for the sale for partition of certain slaves owned by them as tenants in common.

Assumpsit, in which the plaintiffs declared upon a note executed by the defendant in 1860. The plaintiffs were citizens of Pennsylvania at the time the note was given, and continued to be such until the bringing of the suit; and during that time the defendant continued to be a citizen of North Carolina.

<p>What was said by a third person in the presence and the hearing of the prisoner may be given in evidence against him.</p> <p>The husband of one charged as an accessory is not a competent witness in favor of the one charged as the principal felon.</p>

Larceny, tried before Fowle, J., at Fall Term 1867 of the Superior Court of Northampton. Upon the trial each defendant offered to introduce his co-defendant, and also the wife of his co-defendánt as witnesses, for himself but not for such co-defendant. His Honor rejected the witneess thus offered.

Petition for dower, heard by Fowle J., at Fall Term 1867 of the Superior Court of Wake.

Assumpsit, (with two counts, one special, the other indebitatus,') tried upon a case agreed before Barnes, J., at December Special Term 1867 of the Superior Court of Wake. On the 26th of May 1860, the plaintiff deposited with the defendant, at its branch in Raleigh, the sum of $180 in current notes of different banks of the State, and received from the cashier the following certificate : “Bark op Cape Fear, Branch at Raleigh, N. C., $480. 26 May, 1860.

Case, tried before Warren J, at Spring Term 1867 of the Superior Court oí Guilford, upon the following facts agreed: The defendant transported to Greensboro, for the plaintiff, a hogshead of molasses. The car in which it was conveyed passed beyond the old warehouse to the* new platform in order to come in on the side track, and owing to the location, of other cars, was stopped at the west side of the new platform and was not brought back to the old warehouse.

<p>A special venire having been summoned for the trial of a prisoner upon a day previous to the day of trial, held that a successful challenge by the prisoner to the array of the original panel did not necessarily affect the competency of the special venire to act as jurors in the case.</p> <p>Where one who had been insulted ran a short distance to his house to procure a gun, and then pursued the deceased, (who had ridden off,) in order to exact an apology, or failing in that, to do him great bodily harm, or Mil him, held that, if upon his approach, the deceased turned upon him, putting his hand to his side as if to draw a weapon, and was thereupon killed by a blow of the gun, the prisoner was guilty of murder.</p>

Judicial Attachment (upon a motion to .dismiss) before JB-uxton J, at Fall Term 1867 of the Superior Court of Madison. The plaintiff issued a writ in Trespass against the defendant, returnable to August Term 1866 of the County Court of Madison.

Assumpsit, tried before Mitchell J., at' Fall Term 1867 of tbe Superior Court of Rockingham, upon tbe following case agreed : * The defendant’s intestate, in thfe years 1856 and 1857, became indebted to the plaintiff for boikowed money and executed bonds therefor at the dates of the loans. The principal and interest amounted on the 14th of March 1863 to $3000.

Assault, tried before Little, J., at Fall Term 1867 of the Superior Court of Wilkes. The prosecutor, with some other persons, had gone to Mooney’s house, and, after some conversation, a quarrel arose, in the course of which insulting language was used by both parties. Thereupon the defendant ordered the others to leave his house.

Trespass, Q. C. F., before Mitchell, J., at Fall Term 1866 of the Superior Court of McDowell. A motion having been made for notices to issue to the executors of the defendant, upon a suggestion that he was dead; on its appearing to the court that he had died in the Fall of 1864, after the Fall Term of the court, the motion was refused, and the suit adjudged to have abated. From this judgment the plaintiff appealed.

Murder, tried at a Court of Oyer and Terminer for Iredell, upon the third Monday of January 1868, before Shipp, J. The prisoner was charged as principal in the murder of one Laura Foster, in Wilkes County, in January 1866; one Ann Melton being charged in the same indictment as accessory before the fact, but not being upon trial, in consequence of an affidavit made by the prisoner.

<p>In ike course of selecting a jury for the trial of a capital crime, two per- • sons, who had been called and challenged by the prisoner for cause and confessed such cause, in reply to further questions, upon the same point by the Court, made disrespectful answers : Held to have been proper for the Court to rebuke such persons pointedly, and that no rights of the prisoner were infringed thereby.</p>

<p>“Where several .defendants were included in the same indictment, which had been found during the late war and continued until after the courts were reopened; upon a motion to retas costs, held :</p> <p>1. That the State was entitled to but one tax.</p> <p>3.That the clerk, at each continuance, was entitled to but one fee for continuance.</p> <p>3. That as but one capias, including the names of all the defendants, had been issued, the clerk was entitled to but one fee for capias.</p> <p>4. That the‘Clerk was entitled to but one fee for the indictment.</p> <p>5. That he was entitled to a separate fee for judgment against each defendant.</p> <p>■6. That he was not entitled to fees for subpoenas issued from term to term; but to only one fee for those originallyissued and to another for those issued at the re-opening of the courts.</p>

Murder, tried before Warren J., at a Court of Oyer and Terminer for Lenoir, held on the first Monday in August 1867. The prisoner had been arrested by the military authorities of the United States, for the murder of one James B. Allen, without being informed of the charge against him. Upon the trial the State offered evidence of his confessions made in prison to .one Cook, who was at that time also a prisoner, for a misdemeanor, and had previously been his acquaintance.

<p>Where the nurse of an infant, knowing that laudanum was poison and likely to kill, gave the child enough to kill it: held (nothing else appearing to qualify the presumption of law) that she was guilty of murder.</p>

Assault and Battery, tried before Little J., at Fall Term 1887 of the Superior Court of Wilkes. The defendant was indicted for an assault and battery ■upon his wife, Elizabeth Rhodes.

Bastardy, tried upon a case agreed before Fowle J., at the Fall Term 1867 of the Superior Court of Franklin. The proceedings were returned to the County Court, and carried from thence by appeal of the defendant to the Superior Court. One Arianna Herndon, a single woman (colored), charged the defendant, a colored man, with being the father of a child of which she was delivered in March 1867 in the ■county of Franklin.

Case, to recover damages for breach of contract, tried at Spring Term 1867 of the Superior Court of Edgecomb, before Barnes J. The facts appear sufficiently in the opinion of the court. In the court below the plaintiff, on an intimation of his Plonor’s opinion submitted to a verdict and appealed. cited Pettijohn v. Williams, 1 J on., 148; Edioards v. Kelley, 8 Jon., 69; MizeU v. Burnett, 4 Jon., 249; Sug. Vend. 74-79; Batten’s Spec. Perf., (L. Lib., 24); Sug.

Assault and Battery, tried before Buxton J., at Spring Term 1867 of the Superior Court of Caldwell. The defendant was charged with committing an assault upon one R. B. Dula in the town of Lenoir, -and at the trial relied upon the plea of former conviction.

Petition against a guardian for a settlement, heard upon an exception, before Shipp J. at Fall Term 1867 of the Superior Court of Hyde. The petition had been filed at February Term 1866 of the County Court, and an account having been taken, the report of the commissioner was returned to May Term 1867.

Murder, tried before Meares, X, at a term of the Criminal Court of New Hanover, held on the first Monday in June 1867. ■ The deceased (one William Childress) was killed on Sunday night 29th March 1863, and his body was found shortly afterwards in Smith’s Creek, about one mile from Wilmington, On the side of the creek, a few feet off, a large quantity of blood was found, and there were marks of a scuffle.

Trover, for a mare and two colts, tried at Fall Term 1867 of the Superior Court of Orange, before Mitchell J. The defendants claimed title under one John Weaver, who ■ was shown to have been for a long time in possession of the animals. Evidence of his acts and declarations, whilst in possession to them, affecting the title, was given by both parties.

Larceny, tried before Mitchell J., at Fall Term 1867 of the Superior Court of Granville. The indictment was found at May Term 1863 of Granville County Court, and at May Term 1867 of the same court the defendant was convicted. Having appealed from the judgment of that court, a motion was made before his Honor to quash the proceedings, for want of jurisdiction in the court in which the indictment was found, which motion was not allowed.

Ejectment, tried before Mitchell J., at a Special Term of the Superior Court of Mecklenburg, held upon the second Monday of December 1867. The facts appear sufficiently in the opinion of the court. Under the charge of his Honor the plaintiff had a verdict in the court below, and after failing toobtain a new trial the defendant appealed.

Murder, tried at Fall Terra 1867 of the Superior Court of Stokes, before Mitchell, J. The following is the caseras made out by the Judge below. The defendants were indicted for the murder of Silas Hairston, (colored) husband of the defendant Minta. The body of said Silas was discovered in the river on the sixth day after he was murdered.

Motion, in an ejectment cause, heard before Gilliam J. at Spring Term 1867 of the Superior Court of Wilkes.

Motion heard before Buxton, J., at Fall Term 1867 of the Superior Court of Clay. The defendant had been convicted of a misdemeanor, at Fall Term 1867, and having been fined five cents, had been ordered into custody to secure the fine and costs. Subsequently some difficulty having arisen as to his disposal, the sheriff let him go upon parole, to report in person from time to time, which he did so long as the sheriff remained in office.

Covenant, tried before Warren J., at Fall Term 1867 of the Superior Court of Wayne. The defendant had theretofore conveyed land to the plaintiff in fee, covenanting that he was seized in fee simple, and had the right to convey in fee with an indefeasible title. The action was brought for an alleged breach of these covenants. The defendant claimed title under the will of Lewis Whitfield who had died in 1850.

Certiorari, before Foible J., at Fall Term 1867 of the Superior Court of Pitt. The petitioner had brought an action of debt against the defendants, in the County Court. Having been nonsuited, he appealed; but from a misunderstanding upon that point by his attorney, no appeal bond was given. In the Superior Court the defendants moved to dismiss the appeal for want of a bond.

Ejectment, tried before Mitchell J., at Fall Term 1867 of the Superior Court of Forsythe. The land in question was in the possession of the defendant, who had entered and still held under a contract of pur-/ chase from the lessor of the plaintiff. On the 23d day of February 1867 the vendor had given the defendant notice to quit on the 20th day of March succeeding.

Petition for a cartway, heard before Gilliam J. at Spring Term 1866 of the Superior Court of Person. No statement of facts is required beyond what appears in. the opinion. In the court below, the appeal from the County Court having been dismissed, and a procedendo awarded, the defendant appealed to this court.

<p>Ejectment, tried at Spring Term 1867 of the Superior -Court of Craven, before 3Etchdl J.</p> <p>The lessors of the plaintiff were the only issue of one ¥m. Good who survived at the death of his son John Rumsey Good, and were then also the only issue of the testator’s deceased daughter Mary Hall.</p> <p>■ By his will, proved at December Term 1820 of Craven County Court, William Good devised the land in question •to his “son John Rumsey Good and Ids wife Clarissa for and during both their lives and then to go to my heirs at law> to them and their heirs and assigns forever, excluding all those on the part of my sister Brooks.” The other half of his land ho devised to his daughter Mary Hall for life, with the same final disposition as above.</p> <p>At March Term 1821 of the County Court of Craven, after the usual proceedings under a petition by John Rumsey Good and his sister Mary Hall, alleging that they were seized in fee, a decree was made for the partition between them of the lands as devised above, and the land in question was allotted to the former. In January 1824 he conveyed his share to Beavers & Brame in fee, and by other conveyances it came to the defendant as lessee of one Jones.</p> <p>John Rumsey Good died without issue in March 1859.</p> <p>This action was begun in March 1861 by the lessors of the plaintiff, claiming title under the above devise as heirs of the testator, and was submitted to his Honor upon a case agreed. Judgment having been given for the defendant, the plaintiff appealed.</p>

Assumpsit, tried before Shipp J. at Fall Term 1867 of the Superior Court of Craven. The plaintiff declared upon a special contract for his wages as a policeman in the city of Newbern for a part of the year 1865, at the rate of $75 per month. The defendant relied upon the plea of general issue.

Murder, tried before Fowle J., at Fall Term 1867 of tire Superior Court of Edgecomb. The prisoners, colored men, were indicted for the murder of one John A. Gutchin in the mouth of August 1866. 1. The bill was found at Fall Term 1866 by a grand jury ■drawn from a venire summoned according to the course of the court at that time.

Ejectment, tried before Mitehéll J., at Fall Term 1867 of the Superior Court of Orange. The lessor had contracted to sell the land to the wife of the defendant, and they had entered under such purchase. Subsequently they failed to make payment as agreed, and upon the 28th of August T866, possession or the money, was demanded of them. To this the defendant replied, Sue me and I will pay you one-fifth, that is all you can get. On the next day this suit was begun.

Trover, tried at a Special Terra of the Superior Court of Guilford, held upon the second Monday in December 1867, before Warren, J. The plaintiff claimed a special property in the mare in question, under a pledge by one Garner his brother-in-law, dated 13th October 1866, made to secure him as his creditor and also as his surety.

Fornication and Adultery, tried upon a case agreed, before Green J., at September Term 1867 of the Criminal Court of Craven. In 1856 the feme defendant was duly married to one Argos Witle, in New York, and with her husband subsequently removed to North Carolina. They lived together until January 1861, when he entered the military service of the Confederate States, and went to Virginia.

Petition for Dower heard by Mitchell J. at Fall Term 1867 of the Superior Court of Orange. The petition, which was filed against the heirs and surviving partners of the deceased, prayed for dower in a lot in Hillsboro held by the deceased and his two brothers as partners in the business of hotel-keeping. The answer of the surviving partners alleged that the personal assets of the partnership were not sufficient to pay its debts. The cause was heard upon petition and answer.

Original Attachment, dismissed upon motion, by Buxton J., at Fall Term 1867 of the Superior Court of Henderson. The process was returned to that term, and the defendant appeared and replevied.

Ejectment, tried before Buxton J., at Spring Term 1867 of the Superior Court of Caldwell. The plaintiff declared for four lots in the town of Lenoir, and offered in evidence a contract for the sale of the lots between one Patton as agent for his lessor (Gaither) and the defendant, and it was admitted that the defendant entered into possession under the contract, and that a demand for possession had been made by Gaither before suit.

Petition for Divorce, heard ex parte before Buxton J., at Eall Term 1867 of the Superior Court of Yancey. The petition prayed for a divorce on account of adultery by the defendant. Upon reading it to the court, it appeared -to contain no allegation that the petitioner himself had not been guilty of adultery. Thereupon the court declined to-proceed unless the petition was amended upon that point.

Burglart, tried before Gilliam J. at Fall Term 1867 of the Superior Court of McDowell. The prisoner was indicted in the Superior Court of Rutherford, Spring Term 1867, with one Alphonzo Johnston, for breaking into the house of one J. A. Sweet in the night-time, and stealing a rifle, a, watch and fifty dollars in gold. The prisoner was arraigned in that court, but upon affidavit his trial was removed to McDowell.

<p>Motions in a Divorce Canse, heard before Warren J, at a Special Term of the Superior Court of Wayne, held upon the 1st Monday of January 1868.</p> <p>The petition was for a divorce from the bonds of matrimony, and at a previous Term alimony pendentelite had been granted. The defendant having failed to comply with the order was, after a full hearing, at Rail Term 1867 adjudged to be in contempt, and was thereupon committed. At the Special Term the divorce cause was tried, and decided against the petitioner.</p> <p>Thereupon the defendant moved that the order allowing alimony, and the order committing him for a contempt, should be rescinded, and that he should be discharged from imprisonment.</p> <p>The court, pro forma, refused to allow either motion, for want of power; and the defendant appealed.</p> <p>There are two kinds of contempt — one direct (ex. gr. an indignity offered to thecourt) for which aparty may be punished by imprisonment at discretion. Tbe other, in not performing an order or decree in some case, as here.</p> <p>Attaching a party for non-performance and placing him in contempt, is for the benefit of the other party — in this case the wife.</p> <p>As a general rule a party cannot be heard in any case in which he has been put in contempt, except for the purpose of clearing his contempt. Adams Eq., 324-26 & 393-4-5. But he may move to discharge an order, though in contempt for not executing it. Mosely Rep. 258.</p> <p>The order in this case, made by virtue of Rev. C., ch. 39, s. 15, was interlocutory only (see act). The proceeding though an equitable one, was in a court of law. The court had full power at any time to change, or modify it, or set it aside. The judge therefore erred as to his want of power. Indeed he ought to have dismissed the petition and that would have carried the order with it. The petitioner having failed to establish her right to divorce or alimony, the alimony allowed, pendente lite, cannot and ought not to be collected. The order for it is virtually nullified. The money, if paid into court, is the husband’s, not the wife’s. Should she take it, he would have a right to retake it from her. The law does not require a vain thing to be done, and it was in the power of the judge to act upon such considerations.</p> <p>It has been held that arrearages of alimony cannot be collected by the wife’s ex’ors. after her death. Shelford on M. & D., 602 and cases cited. Here the wife is not dead, but her separate existence is, in law, merged in that of the husband. It is as effectual, so far as she is concerned, as if the money had been paid, no one else being concerned in enforcing thedecree. The dignity of the court is not concerned.</p> <p>2. The contempt was fully and completely waived by the subsequent proceedings and trial. The defendant was fully • recognized by the petitioner and the court, as having a status therein, and the petitioner had no right to ask his further detention on that order, for the contempt. 1 Dan. Ch. P. 560; 1 Yes. & B. 325; 2 Ibid, 100; 15 Yes. 174.</p> <p>3. At all events the court, which is the same court by which he was put in contempt, had a discretion, and was not entirely without power to act. Otherwise a party might be imprisoned forever, when the performance of a decree or ■order was impossible. But in such a case the court will discharge. Exch. Rep; 6 Price 321, note. Also Bequiav. Paty, 2 La. Reg. 1108: Bex v. Balter, 1 II. Blk., 543; Watson on Sh’ffs. 7 L. L. 89, top; Sewoll on Sh’ffs, 46 L. L. 407, top.</p> <p>4. In England it is held that an insolvent, in custody for contempt for non-payment of money or costs, is entitled to discharge under the insolvent acts. It seems a rule of the courts of equity which I find cited 2 Chitty’s Eq. Dig. 907.</p> <p>Our late act abolishes imprisonment for debt. Can a party be imprisoned now, for not satisfying a money decree when ordered to do so by a court of equity on the ground that it is a contempt ? It seems to me it can no more do so than can a court of law imprison upon a ca. sa. Wheldale v. Wheldale, 16 Yes. 376 & notes; 3 Desauss. 264 — 549.</p> <p>5. The case of Love v.' Gamp, 6 Ire. Eq. 209, does not contravene the principles contended for here.</p>

Larceny, tried at Fall Term 1867 of the Superior Court of Wake, before Fowle J. The indictment had been found at a Court of Ojer and Terminer held in December, 1866. The defendant having been convicted at Fall Term 1867, moved in arrest of judgment, and the motion having been granted, the Attorney General appealed. There is no express repealing clause, and the court will not imply a repeal from what appears upon the face of the Act of 1866-7.

Debt upon an Award, tried before Mitchell J., at Pali Term 1867 of the Superior Court of Orange, It appeared in evidence that the defendant, who was a single woman and sister oí the plaintiff, had induced him to return from Tennessee, to which State he had removed, by promise of pecuniary advantage; that after his return they had fallen out, he had beaten her, and she refused to comply with her engagement.

Ejectment, tried at December (Special) Term 1867 of the •Superior Court of Wake, before Barnes J. The lessor showed title in himself as purchaser at a Sheriff’s sale under executions against one Thomas Williams, who it-was admitted was at that time the owner. At the time of such sale the defendant was in possession of the land, and continued to be at the time that the declara, tion was served.

Debt, tried before Warren J, upon a plea to thejurisdiclion, at Fall Term 1867 of the Superior Court of Robeson. The action was brought to August Term of the County Court against the defendants (six in number) as executors de son tort of Charles Ivey, upon a bond executed by him to the plaintiff’s intestate. No declaration was filed in that court and the defendants failed to crave Oyer.

Debt, upon a guardián bond, quashed upon a plea to the jurisdiction, before Gilliam J., at Fall Term 1867 of the Superior Court of Rowan. On the 22d of April 1867 the plaintiff as guardian of certain infants, procured to be issued from the County Court a writ upon the bond of a former guardian, executed before 1861. Upon the writ being executed and returned, the defendants filed a plea to the jurisdiction, and the plaintiffs demurred thereto.

Forcible Trespass, tried before Buxton J., at Fall Term 1867 of the Superior Court of Buncombe.

<p>A bill of sale in the following words: Received of M. & H. $3000 for a negro boy named Allen, 26 years old, said negro is warranted sound in mind and in body and the title good, held to contain no warranty as to age.</p>

Larceny, tried at Fall Term 1867 of the Superior Court oi Carteret, before Shipp J. The jury found a special verdict, upon which the court below gave judgment for the defendant, and the Solicitor for the State appealed. No statement of the facts is required.

Assumpsit, tried before Barnes J., at Fall Term 1867 of the Superior Court of Perquimans.

Motions, to quash and to amend a writ, heard before Buxton, J-, at Fall Term 1867 of the Superior Court of Madison. The writ was in trespass.

Indictment for receiving stolen goods, tried before Meares J., at December Term 1867 of the Criminal Court of New Hanover. The indictment charged the defendant with receiving as stolen, — among many specified manufactured articles of brass and iron, “one pound of iron of the value of sixpence.

Larceny, tried at Fall Term 1867 of the Superior Court of Guilford, before Mitchell J. The thing alleged to have been stolen was a National bank note for ten dollars, issued by the Ocean National Bank of the city of New York. The indictment contained six counts.

Case, tried before Warren J., at Fall Term 1867 of the Superior Court of New Hanover. The plaintiff was the sheriff of the county, and one Biddle was keeper of the jail under him, and as such had supplied with food an insolvent debtor who was in prison at the suit of the defendant.

Motion to make the executor of a deceased plaintiff party, heard before Shipp J., at Fall Term 1867 of the Superior Court of J ones. Upon the motion being' made, it appeared that the plaintiff had been dead for more than two terms; thereupon his Honor refused to grant it, and adjudged that the suit had abated. The executor of the plaintiff appealed.

<p>Upon the Order of General Schofield (April 271865), announcing the subjugation of North Carolina, all persons who had been civil officers in the State ceased to be such defacto as well as de jure.</p> <p>It is competent for the Legislature by retrospective legislation to give validity to a marriage which is invalid by reason of the non-observance of some solemnity required by statute; alitor, where suehmai'riage is a nullity, as for want of consent, &e.</p> <p>A marriage solemnized upon the 15th day of June 1865 in Wake county by one who during the existence of the Confederate government had been appointed a justice of the peace, is withiu the provisions of the ordinance of October 18th 1865, entitled, An ordinance declaring what laws and ordinances are in force, &c., and is rendered valid thereby.</p>

<p>Debt, tried before Barnes J., at Fall Term 1867 ot the Superior Court of Perquimans.</p> <p>The paper sued upon was as follows:</p> <p>One day after date, with interest from date, we or either of us do promise to pay Henry E. Stallings or order the just and full sum of two hundred and eleven dollars and thirty cents, for value received. As witness our hands and seals.</p> <p>(Signed) JAMES M. STALLINGS, [seal.J</p> <p>“ ASA R. STALLINGS, [seal.]</p> <p>Endorsed: “Pay to J. P. Jordan.” (Signed) Henry E. Stallings [s.]; also, “Pay to D. Parker or order.” (Signed) J. P. Jordan [s.]</p> <p>The suit was brought against all the parties to the paper.</p> <p>It was shown that Henry E Stallings had carried the note to Jordan, an attorney, in order to have it collected, and had endorsed it in blank upon being told by Jordan that it was necessary foy him to put his name on the back of it to enable the latter to collect it by suit. Jordan afterwards sold the note to the plaintiff, first filling up to himself the endorsement of Stallings, and endorsing the bond himself in blank. This latter endorsement was filled up at the trial. There was no evidence that the plaintiff knew anything of the circumstances under which Stallings had placed his name upon the bond.</p> <p>The plaintiff objected to the admission of testimony as to what passed at the time when Stallings endorsed the bond ; but it was admitted by the court.</p> <p>T-Tir Honor charged the jury that if the evidence satisfied them that Stallings placed his name upon the bond under an impression that it was necessary to enable him to institute suit, and not for the purpose of endorsing it and transferring the title, that was not such an endorsement as rendered him liable.</p> <p>Verdict accordingly; Rule for New Trial discharged; Judgment, and appeal by the plaintiff.</p> <p>1. The case shows an endorsement in fact and a delivery to Jordan, and parol evidence is incompetent to vary or diminish the legal obligations oí the contract of endorsement; ex gr., as here to show that a general endorser was in fact an endorser without recourse, to the prejudice of a subsequent endorsee without notice and for value. Marston v. Allen, 8 M. & W., 504.</p> <p>2. The rules applicable to over due and dishonored paper, do not apply to an endorsement made after the paper was due, where enquiry would have developed no facts prejudicial to the claim.</p> <p>3. Every endorsement is presumed in law to have been made before the debt falls due. Byles on Bills (61 L. L., 152.)</p>

Detinue, tried before Mitchell, J., at December (Special) Term 1867 of the Superior Court of Mecklenburu. The facts are sufficiently set forth in the opinion. In the court below there was a verdict for the plaintiff, and the defendant appealed.

Trover, for forty-one bushels of corn, tried before Gilliam J. at Fall Term 1867 of the Superior Court of Cleaveland. The defendant pleaded, General Issue, and “Two military orders issued by officers of the Freedmen’s Bureau at Morgan ton”, but the orders were not set out nor their contents stated, in the record which was transmitted to the Supreme Court.

Ejectment, tried, before Mitchell, J., at December (Special) Term 1867 of the Superior Court of Mecklenburg. The elder title to the land in dispute was in the'plain tiff; and the land was a lappage between 7ns’southern line (DS E) and the northern line (N 0) of the defendant.