Volume 63 — North Carolina Reports

Murder, tried beforq, Mitchell, J., at Spring Term 1868, of tbe Superior Court of Rowan. The prisoner, a colored man, was indicted together with one Jane Harris, who had lived with him as his wife while they were slaves and after emancipation had continued to live with him having complied with the requirements of the Act of 1866, ch. 40 ; but he was put upon trial alone.

<p>The Supreme Court has no power to grant a new trial because a verdict is found upon insufficient testimony, or against the weight of testimony. The sufficiency of the testimony offered is a question exclusively for the jury. Whether a verdict is against the weight of the testimony is a matter exclusively for the discretion of the Judge who presides at the trial.</p> <p>It is not necessary, in North Carolina, to show emission in order to prove rape, even where the indictment concludes against the form of the “Statute” — not “Statutes:” the 20th Sec. of Rev. Code, chap, 36, having abolished all distinction between these phrases.</p> <p>An indictment for rape need not charge that the person ravished is over ten years of age.</p>

ARSON, tried before Gilley, J., at Spring Term 1868, of tbe Superior Court of Person. Upon tbe trial, one Stokes, an accomplice, a colored boy of 16 years of age, was a principal witness to prove tbe commission of tbe crime. On tbe examination in chief, after be bad given an account of tbe transaction, be was asked by the Solicitor if be bad since denied this statement to be true. He answered that on one occasion he bad denied it to a gentleman of tbe bar.

Case, tried before Mitchell, J., at Spring Term 1868, of the Superior Court of Cabarrus, The plaintiff borrowed from the defendant $150 in United States currency,' and deposited with him $360 in gold coin, as a security for the return of the $150. In a few days thereafter the plaintiff tendered $150 in currency to the defendant, and demanded the return of the gold. The defendant refused, and thereupon this action was brought.

Case, tried before Gilliam, J., at Spring Term 1868, of the Superior Court of Hertford. The plaintiff sought to charge the defendant as a common carrier, with the value of seven and a half bales of cotton alleged to have been stolen while in the defendant’s possession. The evidence was that the plaintiff’s agent, one Eutrell, took a quantity of cotton to the depot at Henderson and offered to deliver it to tbe defendant’s agent, one Moore.

Assault, tried before Gilley, J., at Spring Term 1868, of the Superior .Court of G-uilford.

Assault, tried before Mitchell, The. following is the special verdict found upon the trial: On a certain Sabbath, at a Church, where people had assem-' bled for religious exercises, the defendant, with several others, was sitting outside of the building, about six or seven steps from it, and the prosecutor was approaching the Church, when the defendant, addressing him, said: We have no use for you in this «company; you shall not come here; go back.

Case, tried before Barnes, J., at Spring Term 1868 of tbe •Superior Court of New Haijover. The action had been brought by appeal, from the County Court, where it was commenced in May 1867. The plaintiff and defendant became sureties of one Brown on a promissory mote payable to the Commercial Bank of Wilmington.

<p>Murder, tried before Buxton, J., at Spring Term 1868 of the Superior Court of Edgecombe.</p> <p>The counsel for the plaintiff moved to quash the bill of indictment, and assigned therefor the following reasons, viz:</p> <p>1. “ That it was not found by a grand jury drawn from the registered voters of the county, but from a list of the good and lawful men of the county, consisting of white freeholders only.”</p> <p>2. “ That it was not found by a grand jury drawn from the list of citizens assessed for taxes and, who had paid taxes for the current year.”</p> <p>The Attorney General admitted that the grand jury had been drawn in accordance with the laws unqualified by military orders, and examined as witnesses the Chairman of the County Court and the Sheriff of the county, who proved that before drawing the jury list, they had applied personally and by letter to the military head quarters, for a list of the registered voters of the couuty, and that they had failed to obtain it; that such list was taken by, and was still in the hands of the military authorities, and that they'had been and were still unable to procure a .copy, and that without such copy they were unable to ascertain who were the registered voters of the county.</p> <p>The motion to quash was therefore overruled, and the prisoner excepted.</p> <p>A special venire of fifty good and lawful men was ordered to be summoned to try the case. The Sheriff returned twenty-five whites and twenty-five colored men as jurors.</p> <p>The prisoner accepted three colored jurors, and they were sworn in. He then challenged one Camper, a juror, on the ground that he was a colored man. This cause of challenge was overruled, and the prisoner challenged him peremptorily. The prisoner made but twelve peremptory challenges..</p> <p>After a verdict of guilty, there was a rule for a new trial, which was discharged, and the prisoner appealed.</p>

, at ' Spring Term 1868 of the Superior Court of Mecklenburg. The facts necessary to an understanding of the opinion appear sufficiently set forth therein. The Court below having allowed the plaintiff's motion, the defendant appealed.

Assumpsit, tried before Shipp, J., at Fall Term 1867 of the Superior Court of Wilson. The writ was original in Debt, wherein one Rountree had been made defendant together with Daniel.

Murder, tried before Buxton, J., at Spring Term 1868 of tbe Superior Court of Ware. Upon tbe trial it was shown by tbe State, and admitted by tbe prisoner, that tbe latter killed tbe deceased by intentionally stabbing him with a knife, which was exhibited, and admitted to be a deadly weapon.

Forcible Trespass, tried before Mitchell, J., at Spring Term 1868 of the Superior Court of Yadein. On the trial below, after a Yerdict for the State, the defendant moved in arrest of judgment because the indictment contained no specification of time in connection with the commission of the offence charged. This motion was refused, and judgment having been pronounced, the defendant appealed.

Eape, tried before Barnes, J., at Spring Term 1868 of the Superior Court of StaNLY. The prosecutrix, one Jemima Motley, was introduced as a witness for the State, and proved all the facts necessary in law to constitute the offence. With the view of attacking her credibility, the prisoner’s counsel proposed to ask her if she had not been delivered of a bastard child, and if she had not had sexual intercourse with other men.

Murder, tried before Gilliam, J., at Fall Term 1861 of tbe Superior Court of CleavelaND. Upon tbe trial, tbe prisoner challenged tbe array of tbe original panel, because the list bad not been made out according to the Eevised Code. The Solicitor admitted tbe cause of challenge, and tbe panel .was set aside. The prisoner then challenged tbe array of the special venire summoned tbe day before, because the original panel bad been set aside.

Debt, tried before Little, J., at Spring Term 1868, of the Superior Court of Cleaveland. The action was brought originally in the County Court upon a note, of which a copy is set out in the opinion of the Court. Judgment having been recovered by.the plaintiff, in the County Court, the defendant appealed to the Superior Court.

Debt, tried before Little*J., at the Spring Term 1868, of the Superior Court of Lincoln. The plaintiff sued upon a bond, executed to bis testator by the defendants, for the payment of $1,103.50, “in specie or its equivalent.” The defendants moved to non-suit the plaintiff, on the ground that the action should have been covenant. His Honor refused to non-suit. Yerdict and judgment for the plaintiff, and appeal by the defendants.

Case, tried before Ciüey, J., at Spring Term 1868, of the Superior Court of Chatham. Upon tbe trial, it appeared that a boy, by the name of Johnson, had been apprenticed to the plaintiff by the County Court of Chatham, at August Term 1861.

Ejectment, tried before Mitchell, J., at Spring Term 1868 of the Superior Court of Rowan. In 1858 tbe lessors of the plaintiff, as tenants in common of the land in question, being minors, had filed a petition for partition in the Court of Equity for Rowan, and at a sale thereunder, in the Spring of 1860, Mrs. M. L. Beard became the purchaser. Subsequently there was an order to collect and make title.

Ejectment, tried before Gittiam, J., at Spring Term 1868 of the Superior Court of Tyrrell. The land in controversy formerly belonged to one William Spruill, who, in 1840, devised the same to Colin E. Spruill, with provision that if he died leaving no issue, it should go to William E. Spruill.

<p>Scike Facias to subject bail, dismissed upon motion before JFowk, J., at Spring Term 1867 of the Superior Court of Cumberland.</p> <p>The action had been commenced in 1861, and it was admitted that the principal in the bail bond at the time of issuing the scire facias and ever since had been beyond the jurisdiction of the Court.</p> <p>From the order made by his Honor the plaintiff appealed.</p>

Trespass Q. C. E., tried before GiUey, J., at Spring Term 1868, of tbe Superior Court of Davidson. The question was one of boundary, and the defendant was introduced to testify as to certain lines. He offered to testify that his father, now deceased, under whom he claimed, whilst in possession pointed out to him certain marked lines as the boundary lines of the tract.

TRESPASS, tried before Mitchell, Jat Spring Term 1868 of the Superior Court of Cabarrus. The plaintiff declared for damages sustained by the taking and converting of two horses belonging to his intestate, and offered evidence sustaining his declaration.

<p>ORIGINAL Attachment, tried before Barrel, J., at Spring-Term 1868 of the_Superior Court of Cumberland.</p> <p>The attachment having issued against Phillips, for a debt due to the plaintiffs, was levied upon goods which were-claimed by Haywood, who was allowed to interplead. Haywood claimed under a bill of sale from Phillips, and this title-was impeached as fraudulent and void as to the plaintiffs, who-were creditors of the latter. There was evidence tending to-show such fraud.</p> <p>Upon this part of the case the Court charged “ that if the conveyance were made for a bona fide debt and without any fraudulent intent, it passed the title to the goods even as against the creditors of Phillips:” also at another point, “ that the deed is absolute upon its face, and there is no evidence of a trust. The debtor conveys absolutely to his creditor, and if' it were to pay a bona fide debt it will be upheld though the-debtor made it with a fraudulent intent.”</p> <p>The other portions of the charge in this connection are not - material here.</p> <p>Moses Haywood, one of the defendants, was present in Court, and did not tender himself as a witness. The plaintiff’s counsel asked the Court to charge that as the facts of the case were peculiarly within his knowledge, the circumstances that he did not tender himself as a witness in his own behalf, required them to presume the facts as to which he might-have testified, most strongly against him.* The Court charged-the jury that they might consider this fact, and attach such weight as they thought it entitled to. Also, that as the-plaintiffs could have compelled Haywood to become a witness in the cause, the circumstance that they had not done so might also be considered by them.</p> <p>Yerdict in favor of Haywood; rule for new trial discharged;: judgment, and appeal.</p>

<p>ORIGINAL Attachment, before Gilliam J., at Spring Term 1868 of the Superior Court of Rowan.</p> <p>The attachment was returnable to Fall Term 1867, and at the next term, after publication, the defendants appeared by attorney and moved to be allowed to plead without executing a replevy bond.</p> <p>' His Honor declined to grant the motion, and the defendants appealed.</p> <p>The exception-in the Act of 1866-67, c. 63, applies only to residents of this State who are about to remove themselves or property beyond the limits of this State. Then, had the plaintiffs sued the defendants while commorant here, by personal service, they could only have done so by writ of summons. What reason can be assigned why greater right should be accorded to plaintiffs and heavier restrictions imposed upon defendants, when sued by the extraordinary process of attachment ?</p> <p>Our attachment has never been regarded as other than what it was under the custom of London, a substitute for the ordinary process where, for certain reasons esteemed sufficient by the Legislature, the ordinary process could not he served, Hightower v. Murray 1 Hay 21. The object of the attachment, shown by the case and the whole tenor of the decisions as well as by the very language (“ so as to compel the said A. B. to appear and answer,” &c.,) was only to compel appearance; this law originally formed a part of the “ Court law,” and is certainly in pari materia with other acts touching the process of the Courts; wherefore they should be “ taken as one system, and be so construed.” State v. Melton, Busb. 49. Then, the attachment and bail laws formed parts of “ one system,” and accordingly it has been held under the old system when bail might be claimed, that the replevy bond was nothing but a bail bond; that an action of debt would not lie on it, but only a sci. fa. Summers v. Parlmr, N. C. T. R., 147; that the sureties to the bond might surrender the principal in their own discharge. Hightower v. Murray, supra. Other analogies are declared in Houston y. Porter, 10 Ire., 184 Gorman v. Barringer, 2 D. & B. 502; Biclter staff v. Dellinger,. Conf. Rep. 299.</p> <p>It is thus shown that a replevy bond was required under the old system, in order to harmonize the process with the ordinary process — to require of the defendant only what would have been required of him had lie been sued by the ordinary process, and not to give additional rights by the process of attachment, as in some of the New England States.</p> <p>The object of the process is to compel or induce appearance,, under the same restrictions and no more as would be applied to a defendant in such ordinary process as might have issued against him.</p> <p>Upon the foregoing principles is based the maxim, leges posteriores priores contrarias abrogant, which as is submitted,, applies equally whether the repugnancy consists in the terms of the acts, or results from their construction and effect, so that whenever an act required by a former law becomes a vain and idle ceremony by virtue of a subsequent law, the' former law quoad hoc is repealed, for the maxim is Lex not cogit, &c. In accordance with this view, this Court has held that where the act in question has put an end to the object of litigation, the suit itself must end. Bunting v. Wright, Phil. 295. So in the principal case, suppose a'bail bond to be required, — Oui bono? What could it avail the plaintiff? What legal purpose does it carryout? What obligation does it impose ?</p> <p>1. The Act abolishing imprisonment for debt does not by its terms embrace proceedings by attachment, bnt only certain classes of actions begun by “ original wit,” not as understood in theJEnglish law, but as commonly understood in this State. It has never been understood here that proceedings by “ original writ,” embraced proceedings by attachment, — indeed the latter is generally understood to be the reverse of the former, and is in contradistinction to it.</p> <p>2. Proceedings by attachment are not only not included by the plain words of this Act, but the Act taken altogether shows that it was not intended to embrace them, for it is provided, that if the plaintiff, proceeding by “ original writ ” in any action of debt, assumpsit or covenant, shall make oath in writing that the defendant is about to remove himself or property out of the State, then he shall have hail. This shows that the policy and spirit of the statute do not embrace attachment proceedings, nor was it so intended.</p> <p>3. If the Court give the Act the construction contended for, it opens wide the door for fraud to non-resident debtors; they may carry off their property beyond the jurisdiction of our Courts, in defiance of their creditors, and the latter have no relief. The present case illustrates the truth and force of this view. It would be monstrous to say the Legislature intended so to provide, and it is asking the Court to go too far to so declare, by a rule of construction</p>

Bill, which ha.cl been referred, and was heard upon exceptions to the award before Barnes, J, at Spring Term 1868 of the Court of Equity for New Haítover. This cause, (which has been before the Court previously, Phil.

Bill to perpetuate testimony, filed at Fall Term 1867 of the Court of Equity for AlamaNCE, when a general demurrer was filed and set down for argument. At Spring Term. 1868 the cause was transmitted to this Court. The plaintiffs were sureties for one John Tapscott, ona bond ■executed to the defendant upon the 18th of December 1858.

<p>Injunction, transferred, upon bill and demurrer, from Spring Term 1868, of tbe Court of Equity for Haywood.</p> <p>The bill alleged that in the summer oí 1865 the complainant and defendant formed a partnership for merchandizing, and particularly for dealing in ginseng in the counties of Haywood, Jackson and Macon. In October 1865 the defendant contracted on behalf of the firm to sell a certain firm in ■Baltimore “all the ginseng we have on hand and shall • collect this season or fall [amounting to from five to eight •.thousand pounds as near as we can estimate, including all -we shall get,J at the rate of 68 cents per pound for prime dried •.and crude, and 78 cents per pound for prime strained and clarified,” and the Baltimore parties advanced thereupon $1,740. Some time after the defendant informed complainant of the sale, and the latter was displeased because the prices were below the market rates; thereupon the defendant remarked that he had gotten an advantage of the young men with whom he had traded — that no definite amount of ginseng was contracted for, and the contract could be met by returning the money advanced, and the delivery of what ginseng was on hand. At the same time the defendant proposed to dissolve the partnership, and after some negotiation the plaintiff bought his interest, and gave him therefor two notes, for $760.40 in all. Since then judgment has been taken upon these notes, and defendant threatens to ■ collect them by execution. ’ At the time of his purchase from the defendant the plaintiff did not know that the latter had bargained to the firm in Baltimore any specific amount of ginseng, — the defendant told him that he had not so contracted, &nd in the copy of the contract, which the defendant furnished to him at that time, the words aboye included in brackets were purposely omitted. The plaintiff did not see the original contract until he visited Baltimore, and then the parties there obliged him to perform the contract to the minimum of ■the same, which required 3,500 pounds more than the firm had On hand — the market price being from $1.00 to $1.05 per pound, so that he lost by the operation $945, &c.</p> <p>The preliminary injunction having been awarded, at the rreturn term the defendant put in a general demurrer, which was set down for argument, and the cause transferred to this -court.</p>

Bill, for the cancellation of a deed, filed to Fall Term 1866' of the Court of Equity for Cheroxee. The bill was subsequently amended, and a demurrer put in; whereupon the demurrer was set down for argument, and the-cause, at Spring Term 1868, was transmitted to this Court by consent.

Bill, reheard upon petition by the defendants. The case as originally heard, is reported in Phil. Eq., p. 101. 1. The case of Leigh v. Smith, 3 Ire. Eq., 442, which is assumed by the Court in its former opinion to be decisive of the present case, differs from it in two marked particulars.

' Bill for the construction of a will, &c., filed at Spring Term Í868, of the Court of Equity for Wake, at which Term, answers having been put in, the case was transmitted to this Court. 'The will, after giving certain slaves to his wife, contains the following clauses: “ I also give toiny wiféhalf of my tract of‘laftd, on which I now live, including the dwelling-house and other'improvements thereto bolonging.

Rule, upon the equity docket, to show cause why certain credits should not be entered upon a decree, dismissed by Gilley, J., at Spring Term 1868, of the Court of Equity for Davidson. W. B. March,' E. D. Hampton, and H. Adams, had filed a bill against Thomas, and obtained an injunction, &c. At Spring Term 1866, the whole matter involved,by order of Court and agreement of the parties was referred.

Debt, tried before Mitchell, J., at Fall Term 1868 of the-Superior Court of Alexander. The action had been commenced by warrant before a Justice of the Peace issued September 5th 1867, upon a bond dated March 8th 1867, and from a judgment against him the-defendant appealed to the Superior Court.

Ejectment, tried before Mitchell, J., at Eall term 1868 of the Superior Court of Caldwell. This is the case in which a new trial was granted at January term 1868 of this Court.

Attachment, dismissed upon motion before Logan, J., at Eall term 1868, of the Superior Court of Mecelenbueg. The proceeding was by summons (and warrant of attachment) returnable to Eall term 1868 of the Superior Court, upon a bond dated October 11th, 1865. The plaintiff having ■filed his complaint, the defendant answered and demurred.

MisdemeaNOR, in mismarking a sheep, tried before Buxton, J., at Fall Term 1868 of the Superior Court of UNION. Upon the trial his Honor allowed one Barnett, a person of color, to be introduced as a witness for the State. The defendant excepted. Yerdict, guilty; Buie for a new trial, rule discharged; Judgment, and Appeal.

<p>Where a debtor transferred by deed to his creditor, his interest in a certain receipt given by a Constable for notes in the hands of the latter for collection, specifying the receipt as then in suit, and authorizing the-creditor to receive the proceeds; and at the same time the creditor gave to the debtor a receipt stating that the amount to be received from the Constable should be credited on the note due by the debtor to him, held that by such agreement, the exclusive right to control the pending suit and to receive j,ts proceeds, was vested in the creditor, and that the debtor was entitled to a credit upon his note for any amount paid into the Clerk's-office, or otherwise, under a judgment thereon; also, that so far from its being the duty of the debtor to receive such amount and tender it to the creditor, he was not authorized to receive it.</p>

Bill for specific performance, beard before 'Logan, J. at Fall term 1868 of the Superior Court of Cabarrus.

ReturN by a Sheriff asking advice as to the application of money, made to Watts, J. at Fall Term 1868 of the Superior Court of Ware. The return set forth that at Fall Term 1867 of that Court the defendants had severally obtained judgments against one Page, and executions were issued upon them returnable to-Spring Term 1868, and were levied upon land. Prom the last term a writ of Ven. Ex. was issued with the usual Fi. Fa. clause, returnable to Fall Term 1868.

Year’s PROVISION, allowed by Watts, J., at Pall term 1868 ■of the Superior Court of Wake. The petition was filed at February term 1868 of the county Court of Wake; and a report thereupon by the commissioners was made to May term. At this term the administrator intervened, and moved that such report be set aside, upon the ground that the petition was not filed in time.

Debt, tried upon demurrer, before Buxton, J., at Spring Term 1868 of the Superior Court of NORTHAMPTON. The suit had been brought in the County Court, upon a bond dated on the 29th of May 1867 The defendant pleaded to the jurisdiction, on the ground that the bond declared on had been given in renewal of a debt contracted before January 1st, 1865. To this the plaintiff demurred. In the County Court the demurrer was sustained.

ACTION tried, upon a demurrer by tbe plaintiff to the answer of the defendant, before Henry, J., at Fall Term 1868 of the Superior Court of Henderson. Tbe note declared on bad been given in substitution for one made prior to tbe year 1860. Upon this appearing below, his Honor ordered tbe complaint to be dismissed, and the plaintiff appealed.

<p>Complaint for the recovery of a mule, accompanied by claim and delivery, tried by his Honor Buxton, J., (trial by jury having been waived) at Pall Term 1868 of the Superior Court Of CüMBERLAND.</p> <p>The facts, as found by his Honor, were that the defendant,, formerly the slave of one McEachin (still living) was in 1857 by him given by verbal gift to his daughter, the wife of the plaintiff, and subsequently remained in possession of the plaintiff up to the time when General Sherman’s army entered the county, in March 1865; the day before Sherman entered Fay-etteville (13th of March 1865) the plaintiff, who had aided the Confederate cause, as he was leaving home for safety told his slaves that they could go to “ the Yankees,” or stay at, home, as they pleased. The defendant stayed, and continued with the plaintiff for some months, as formerly, but during-the latter, part of this year he was put upon wages, and continued as a hired servant for a year or so ; the mule in dispute was one of Sherman’s abandoned stock, and was picked up by the defendant on the 15th of March, 1865r and was by him, on the plaintiff’s return home turned into plaintiff’s horse lot, he telling the plaintiff’s wife, who expressed a wish for the mule, that he desired to retain it to make a crop with. The mule was worked in the plaintiff’s wagon, part of the time by Henry himself, and was fed and kept with plaintiff’s stock. Both parties claimed it. The plaintiff offered to pay the defendant for taking it up, but the defendant declined to receive it and insisted on his right to it. During the latter part of 1865 the defendant spoke of placing the mule with another person for its feed, but the plaintiff declined to let it go; in July 1868 the defendant got possession of the mule by the intervention of the Military. The plaintiff recovered possession, by means of the process in this action, on the 18th of October 1868. The value of the mule is $150.00, and it would hire for 50 cents per day.</p> <p>Upon these facts, his Honor was of opinion that as between these, parties, natural justice favored the defendant, and that, if he were a slave when the mule -was found, his finding it-onured to the benefit of his owner — who was McEachin, and. not the defendant. (Rev. Code, ch. 50, s 12.) Therefore as-McEachin had not intervened, the defendant was entitled.</p> <p>As another view, his Honor considered that the defendant-was liberated by the declaration of the plaintiff, that he might go to “ the Yankees;” that his subsequent remaining with the-plaintiff did not affect this liberation, and so, that when after-wards he found the mule, he was entitled to all the rights of a-finder.</p> <p>From the judgment thereupon rendered in favor of the -defendant, the plaintiff appealed.</p> <p>The defendant was a slave until the ordinance of October 1865. State v. Brodnax, Phil. 41, Woodfinr. Sluder, 16. 200; Hhandler v. Holland, 16. 598.</p> <p>Before emancipation he could not acquire or hold property. White v. Cline, 7 Jon. 174 ; Lover. Brindle, Ih. 560; Glasgow T. Flowers, 1 Hay. 122; Heathcock v. Pennington, 11 Ire. 640.</p> <p>If plaintiff were not the general owner, he was the person •entitled to the casual profits arising from acts of the slave whilst his; or at least has right enough as bailee to maintain this action. Armory v. Delamirie, 1 Sm. L. C. 151; Freshwater v. Nich~ •ols, 7 Ire. 251, Scott v. Elliott, Phil. 104.</p> <p>The Federal Act of 1862 cannot affect this question. It is unconstitutional, except as an act of the war-making power, .and at most does not extend to cases like this.</p>

PETITION for a year’s allowance, abated before Watts, J., at Fall Term 1868 of the Superior Court of Ware. The petition had been filed at February Term 1868 of the County Court of Wake. Upon the return of the report of the Commissioners, at May Term, the death of the petitioner was suggested, and her executor applied for leave to become a party to the petition. The Court, however, considering that the petition had abated, refused to allow the application.

<p>A surety to a note made in 1861 having paid it off in 1866, held, that his claim on that account against his principal was not included in the Ordinance of June 1866, which conferred exclusive jurisdiction on the Superior Courts in regard to all actions on contracts made prior to May 1, 1865.</p>

MotioN to discharge a prisoner, beard before Gannon J., at Fall Term 1868 of tbe Superior Court of BüNCOMbe. The prisoner was held under seven different charges of murder. Tbe case stated that this was an indictment for the murder of Roderic Shelton, in Madison county in 1863, and had been removed for trial to Buncombe upon affidavit of the prisoner.

, at Pali Term 1866 of tbe Superior Court of Wayne. At August Term 1861, of the County Court of Wayne,, the plaintiff had obtained a judgment against the defendants. Successive executions were duly issued thereupon, and, previously to May Term 1866, a levy had been made upon certain land.

INJUNCTION, dissolved by Watts, J., upon motion in the Superior • Court of Wake, at Chambers, on the 4th day of January 1869.

MotioN to dismiss an attachment, made before Shipp, J., at Spring Term 1868, of the Superior Court of Yancey. His Honor having declined to allow the motion, the defendants appealed. No statement of facts, except as appears in the opinion, is necessary.

Bill to convert real estate into assets to pay debts, filed to Fall Term 1867 of the Court of Equity for Caswell, and at Spring Term 1868, set down for argument upon demurrer, and transferred to this Court.

Motioh to set aside an irregular judgment, made before Barnes, J. at Spring Term 1868, of the Superior Court of Cumberland. The plaintiffs had sued out a writ against seven persons, including McLaurin and Dickson, returnable to Spring'Term 1867. It was returned executed against five, of whom McLau-rin and Dickson are two.

Debt upon a sheriff’s bond, tried before Little, J., at Spring: Term 1868 of the Superior Court of G-astoN. The breach assigned was the escape of one Hunt, who had' been arrested by the sheriff under a capias ad respondendum in an action of debt.

Assumpsit, tried before Buxton, J., at Fall Term 1868 of the Superior Court of Cumberland. The suit was brought upon four promissory notes made by Robinson, and payable to Baker. At the time that they were-delivered to Baker they had upon them the endorsement of Myrover and Lutterloh, and it was in evidence that they intended thereby to become sureties to Robinson. No demand was made upon Robinson before bringing this suit.

<p>In a case in which at Pall Term 1863, an entry of “ Judgment ” was-made, which was brought forward to Pall Term 1864; and, no Courts-being held in the county during 1865, on the 8th of March, 1866, (out of term time) the notes declared on were handed to the Clerk, who thereupon extended his memorandum above into a formal judgment as of Pall Term 1864: Held,</p> <p>1. That such judgment was not irregular.</p> <p>2. That the execution which issued thereupon on the 8th of March, 1866, was irregular, as being issued upon a dormant judgment, and therefore might be set aside, on motion by the defendants.</p>

<p>. MOTION, to set aside two judgments, disallowed by Buxton, J.T at Spring Term 1868 of the Superior Court of Northampton.</p> <p>The notice preliminary to the motion, was given in the names of Thomas P. Burgwyn, - a defendant in the judgments,, and also of W. W. Peebles, who was a trustee for the creditors of Burgwyn, under an assignment made by the latter after the entry of the judgment.</p> <p>At the term when the motion was made, Mr. Burgwyn withdrew his opposition to the judgment, and thereupon, the motion, was dismissed as to him. Afterwards the motion being renewed on behalf of Mr. Peebles, the latter applied for leave to. show that the two judgments were given upon the same bond, but the Courtbeing ot opinion that Ae could notbe heard to attack the judgments, the motion was dismissed as to him also; and ■thereupon, he appealed.</p>

Case, tried before Cminon, J. at Fall Term 1868 of tbe-. Superior Court of Cheroxee. Tbe facts were that in 1864, a son of tbe defendant, wbo was-under age, and a soldier in tbe Confederate service, in company with other soldiers, met tbe plaintiff in tbe road, and forcibly took from bim bis horse. After tbe termination of' the war, Harshaw, in consequence of this and other acts, left bis father’s bouse in Cherokee County.

MaNDámus, allowed by Buxton, J., at Fall Term 1868, of the Superior Court of Moore. The petitioner had received a majority of the votes cast in Moore county at the election of April 1868, tor the office of sheriff, but upon his offering to qualify before the Commissioners of the county, a majority of the latter refused to allow it, upon the ground that he was disqualified under the XIVth Article of the Amendments to the Constitution of the United States.

Petition by an administrator to sell land, before Jones, J, upon a motion in the case, at Pall Term 1868, of the Superior Court of Pitt. The petition had been filed by the plaintiff to August Term 1866 of the County Court of Pitt. In the course of the proceedings a sale was made to the defendant, which upon the report of the administrator, was confirmed. Thereupon it was ordered that the money should be collected when due, and title made.

ORIGINAL ATTACHMENT (S. C. ante 53) tried before Bux-ton, J., at Fall Term 1868 of the Superior Court of Cumberland.

Caveat, tried before Buxton, J., at Spring Term 1868 of the Superior Court of Pitt. The testator died in the army of the Confederate States in 1864. He left behind bim two holographs of different dates, making in each very much the sanie disposition of his property. His widow, who was the sole beneficiary under both papers, propounded the former one for probate. Under the ruling of his Honor there was a verdict establishing the paper propounded, and the caveator appealed.

Ejectment, tried before Bussell, J., at Fall Term 1868 of the Superior Court of New Hanover.

<p>MotioN to dissolve an Injunction, heard before Buxton, J., at Fall Term 1868 of the Court of Equity for Cumbeeland.</p> <p>The plaintiff alleged that he was surety to the defendant 'Thornton upon a bond due to the defendant Hinsdale as the administrator of one Johnston, and that judgment had been taken thereon in Cumberland County Court, which judgment specified the relative situations of the defendants therein, as ■principal and surety: that on ai\ execution thereunder certain property of the principal had been sold; that the said principal had considerable landed estate in the counties of Harnett, Johnston and Moore, to which executions had not been issued, and thereupon the plaintiff Thornton, as surety, had on the 16th day of May 1868, called upon the clerk to issue ■executions to such counties, but that Hinsdale had refused to •allow them to be issued, and had issued another to Cumberland county and was threatening to sell the plaintiff’s goods, Ac., thereunder, and also that as attorney for certain northern ■creditors, on the 4th of May, 1868, he had caused a fiat in bankruptcy to be issued against the defendant Thornton, thereby preventing any lien upon his property in other counties, to be created under said judgment. The prayer was that Hinsdale-should be enjoined from further proceeding upon the execution against the plaintiff, and for further relief.</p> <p>The defendants answered, and upon motion of the defendant. Hinsdale, his Honor below dissolved the injunction, and the-plaintiff appealed.</p> <p>The case stated by the bill does not warrant the relief' sought; as a creditor is not bound, in favor of a surety, to use active diligencé against the principal. State Bank v. Wilson, 1 Dev. 484; Coooper v. Wilcox, 2 D. & B. Eq. 90; Nelson v. Williams, II). 113; Pipkin v. Bond, 5 Ire. Eq. 91; Garter v. Jones, lb. 196; Smith v. McLeod, % Ire. Eq. 390; Bizzdlr. Smith, 2 Dev. Eq. 28; Byles on Bills, 239 and cases cited; Trimble v. Howe, 16 John, 152, Beebe v. Bank, 7 W. & S. 375. He may even withdraw an execution already levied on property of the principal, without giving surety a legal right to complain. Forbes v. Smith, 5 Ire. Eq. 369, Pole v. Ford, 2 Chitty 126.</p> <p>No lien can be created under afi.fa. after an adjudication of bankruptcy. Act of 1867, ss. 21 and 44, Jones v. Leach, 5 Law Rép. 55; Pennington v. Sale, 1 B. R. 157. In re Smith,, 1 B. R. 169; Grawshay v. Thornton, 2 Myl. & Or. 1; Hutton v. Cooper, 6 Ex. 159; Deac. Bank, 469 n. 5.</p>

Replevin, tried before Mitchell, J., at Fall Term, 1861, of the Superior Court of Chatham. The action had been brought under the provisions of the Revised Code, ch. 98, for a steamboat which remained in the hands of the defendant, he having given the required bond.

Bill, set for hearing upon replication and- proofs, and transmitted to this Court, from Pall Term 1866 of the Court of Equity for OraNGE. The bill was filed by certain legatees and next of kin of Thomas Hogan deceased, against the defendants, as his executors.

Bill, set for hearing upon pleadings and proofs at Spring 'Term 1868, of the Court of Equity for Guilford, and at Fall Term transmitted to this Court.

Dower, beard before Logan, J., at Pali Term 1868 of tbe Superior Court of LINCOLN. Tbe petition was filed at that term, and upon tbe coming in of tbe answer, the case was submitted upon tbe following facts agreed. The petitioner’s husband, a resident of Lincoln county, died in 1863 leaving a will, of which petitioner was appointed executrix; she accordingly propounded tbe will for probate in 1864, and it being admitted to probate, she was ■’qualified.

INDICTMENT for retailing spirituous liquors, tried before Thomas, J., at Fall Term 1868 of the Superior Court of' Jones. The only question made before this Court was upon the refusal of his Honor below to arrest the judgment, although the indictment concluded against the form of the “Statue”' instead of Statute.

Case, brought to recover damages for personal injuries sustained by the plaintiff whilst a passenger on the road of the defendant. At Spring Term 1868 of the Superior Court of WarreN, before Buxton, J., it was suggested that the plaintiff had died since the last term of thp Court, and a motion was made to allow her administrator to become a party. This motion was resisted by the defendant, upon the ground that -the action had abated by such death.

Debt, tried before Barnes, J., at January Special Term, 1868 of the Superior Court of CumberlaND. The action had been commenced by warrant before a magistrate, and upon the trial before his Honor, the plaintiff after showing a receipt given February 1,1849, by the defendant for a claim of some $26.75, proved a collection thereof by him in 1850. The warrant in the present case was issued in 1857,. and there was no previous demand for the money.

<p>Bill, for certain legacies, dismissed, pro forma, bj-Tourgee, ■J., at Fall Term 1868, of the Court of Equity for ORANGE-; Whereupon the plaintiffs appealed.</p> <p>The bill alleged that one William N. Pratt, late of Orange county had died in 1861, leaving a large estate of personalty and realty which he disposed of by a will dated in 1855, and duly proved by the defendant Burroughs as executor; that by the will, among other things he gave to the plaintiff W. T. Redmond, several tracts of land, a gold watch and other articles of personal property, and also (as follows) “ the sum of $2,000, to be put at interest for the purpose of giving him a classical education. It is my desire that said $2,000 shall be thus expended, and that he shall take his course at the Uni-vefsity of North Carolina. The residue of my estate, I leave to be sold and the proceeds to be divided between my next of kin,, share and share alike, with the exception that Caroline Barbee shall share equally in the aforesaid proceeds with my next of kin;” that before the testator’s death an execution had been levied upon the land devised to W. T. Redmond, which having been exposed to sale after his death under a ven, ex., the devisee bid it off at the amount of the debt, — and upon that account is entitled to be reimbursed out of the residue of the personal estate of the testator, under the doctrine of subrogation.; that the executor refuses to pay said W. T. Redmond the $2,000 bequeathed as above; that the’legatee was a boy of about eleven years of age when the will was written,, and is now about twenty-four, and a married man, having in the interval received only a common English education; that the executor also refuses to deliver certain horses and other legacies of personal property bequeathed to the plaintiffs.</p> <p>The defendant Burroughs answered, admitting the material allegations of the bill, and insisted that the plaintiff W. T. Redmond, is not entitled to the $2,000, because he is now past the age at which it could be applied as intended, and .besides that whilst a boy he had. refused to be educated, and had run away from a classical school to which the testator had eent him.</p> <p>Some of the other parties raised a question (preliminary to the taking of the accounts of the estate) upon the meaning of the word “ nest of kin,” ip the residuary clause of the will,</p> <p>cited Wheclbee v. Shan-.nmhouse, Phil. Eq. 283.</p> <p>1. W. T. Redmond is not entitled to the $2,000. Lefler v. Bowland, Phil. Eq. 143; Livermore v. Garter, 4 Ire. Eq. 59, compared with Harris v. Hearne, 2 Win. 92.</p> <p>2, The words “ next of kin” include all who are such by representation. Technical words are to be taken in a technical sense, unless the context show to the contrary. Rogers v. Brichhouse, 5 Ire. Eq. 304; Gravdy v. Saivyer, Phil 9; Gooper v. Gannon, lb. 83; Harrison v. Ward, 5 Ire. Eq. 236. The cases, Jones v. Oliver, 3 Ire. Eq. 369; Simmons v. Gooding, 5 Ire. Eq. 382; Elmsley v. Young, 2 Myl. & K., 780, are only in appearance to the contrary. See also Davenport V. Hassel, Bus. Eq. 29, and 2 Jarm. Wills, 45, 46.</p> <p>1. “ Next of kin” means, nearest of kin; Jones v. Oliver, Simmons v. Gooding, Harrison v. Ward, above.</p> <p>2. As to W. T. Redmond's legacy for education, Livermore v. Garter, above, and Holt v. Hogan, 5 Ire. Eq. 82.</p>

Larceny, tried before Gloud, J., at Fall term 1868, of the-Superior Court of Surry. On the trial the prosecutor, one Haymore, upon cross-examination, deposed to a conversation in relation to the theft with one Shelton, in which he represented the latter as saying, that he knew more of the theft than he wished to know, and that he would get witness’ money (the subject of the larceny) for him by Saturday night.

PETITION for a certiorari, filed in this Court at the present term. The case in which the certiorari was asked is that reported •ante p. 87.

Creditor’s bill, filed and injunction, obtained November, 8,. 1868, in tbe Superior Court of MeceleNburg.

• MOTION to-dismiss a suit, made before Henry, J., at Fall Term 1868 of the Superior Court of Watauga. The suit having been brought to the Spring Term, the defendant required the plaintiff’s attorney to produce a power of attorney, and at Fall Term, Q. F. Neal, Esq., the attorney for the plaintiff, produced two letters from him whilst in Texas.

COVENANT, tried before Mitchell, J., at Spring Term 1868 of the Superior Court of Alexander. The plaintiff in .this case was sheriff of Alexander county, and under the revenue laws of 1866 was required to collect the public taxes in his County for that year.

Trespass, tried before Shipp, J. at Spring Term 1868, of tbe Superior Court of Mitchell. Tbe defendants, besides tbe General Issue, pleaded that they were soldiers of tbe Federal Army, and in taking tbe horses acted under orders of superior officers.

<p>Issues in an Equity cause, tried before Buxton, J., at Fall Term 1867 of the Superior Court of Franklin.</p> <p>The bill in the original cause was for the specific performance of a contract to sell certain lands; and for an injunction against an action of Ejectment, threatened by Harris, as purchaser at a sale under an execution against one Andrew Jackson. Having been set for hearing upon the pleadings and proofs, it was transferred to the Supreme Court, and, by order of that Court at June term 1867, issues were framed, and sent down for trial before a jury at Fall Term 1867 of the Superior Court, and it was “further ordered that the parties have leave to read in evidence [at such trial] depositions de hene esse, and to examine witnesses.”</p> <p>The issues were:</p> <p>1. Was the receipt, which is in the following words : “ Received of Thomas J. Jackson by the hands of Andrew Jackson sixty-four dollars in full payment of the balance of the purchase money for the land which I sold, and on which the said Andrew Jackson now resides, adjoining the lands of David W. Spivey, Jacob H. Cooley and others, containing forty and one-half acres, the deed to which I am to make to the said Thomas Jackson on application, this the 16th day of January 1858.</p> <p>(Signed) W. T. SPIVEY.”</p> <p>Witness,</p> <p>S. W. Bartholomew. given in good faitb for money received from Thomas Waters, and paid by Andrew Jackson to W. T. Spivey for the purchase of the land in good faith for Thomas Jackson the plaintiff.</p> <p>2. Was the said land paid for by Andrew Jackson, and the receipt given by W. T. Spivey to make title to Thomas Jackson taken fraudulently, for the purpose of hindering and delaying the creditors of Andrew Jackson in the collection of' their debts.</p> <p>Upon the trial the defendants offered to read the answer of' Spivey (who was dead); the plaintiffs objected, and the Court thereupon excluded it. The defendants excepted.</p> <p>The plaintiff offered evidence tending to show that in 1852 his grand-father had placed in the hands of Andrew Jackson, funds sufficient to buy the land in question, with directions to buy it of said W. T. Spivey for the plaintiff; that Andrew Jackson accordingly bargained for the land, but did not at once pay the whole price for it, $20 being wanting because of' his having misapplied a part of the funds; that afterwards, in 1858, said Andrew paid out of his own pocket to Spivey an account held by the latter against him for $65 — one item in. which was the $20 above, and that thereupon he took the-receipt in dispute.</p> <p>His Honor, upon this part of the case, instructed the jury that if the grand-father had placed funds in the hands off Andrew Jackson, as above mentioned, for the purpose of buying - the land in dispute for Thomas Jackson, it would make no-difference whether Andrew had applied the identical money to • that purpose at once, or had first misapplied the funds to his-own purposes and then replaced them with funds of his own; in, either event the plaintiff was entitled to their verdict.</p> <p>Verdict for the plaintiff upon both issues. Rule for a new trial. Rule discharged; judgment against the defendants-for the costs of the Superior Court, and appeal.</p> <p>1. Spivey’s answer ought to have been submitted as evidence,. being responsive to the bill. Adams’ Eq. 25, 8 Green. Ev. 3, 284. 1 Dev. Eq. 866, 2 D. & B. Eq. 263, 1 Jon. Eq. 226, 2 Ibid 505.</p> <p>2. The charge is erroneous, as Andrew Jackson’s replacing the money with his own, under the other evidence in the case, may have been in fraud of his own creditors.</p> <p>3. The finding of the jury is not conclusive upon the Court. Adams’ 376.</p>

Assumpsit, tried before Heath, J., at Pall Term 1863, of the Superior Court of Chatham. The plaintiff is a Company, chartered by Act of Assembly passed at the session of 1848-49. The defendant had •subscribed to the capital stock of the Company, and his stock had been duly assessed, (January 20, 1858) and upon his failure to pay the assessment, had been sold (on the 14th of March, 1854) according to the provisions of the charter.

Bill, transferred to this Court from Spring Term 1868, of the Court of Equity for Bertie. The bill was filed by the plaintiff in his own right, and also as executor of Margaret S. Britton deceased, as administrator of his deceased daughter Rosa Mary, and also as next friend of his infant daughter Margaret; against Margaret, Isabella and William Miller; and William R. Miller as administrator of Fanny Miller deceased.

MOTION to dissolve an' injunction, heard before Barnes, ■J., at Spring Term 1868, of the Court of Equity for Bertie.

<p>A Court of Oyer and Terminer held in 1868 by virtue of the aot of 1863,' (Feb. 9,) and under a commission from Governor Holden to a Judge of.' the Superior Court, was competent to hear and determine cases of crime. Where a Judge of the Superior Court holds a term, it will be taken, prima' facie at least, that he was authorized so to do, and that it was regular.</p> <p>A general verdict of guilty, upon an indictment containing several counts-, will be supported, .although these are inconsistent as regards their statement of the manner of killing.</p> <p>A charge that — “ if the acts deposed to by C. P. were the cause of the-death, it was murder,” held to be no trespass upon the province of the-j®y.</p> <p>During a capital trial, one of the jury (then out of Court in charge of am officer for the purpose of eating dinner) was allowed to pass by or near a number of persons, and to eat his dinner a short distance from the other jurors, although he conversed with no one, — held to give no just cause of complaint to the prisoners.</p>

EjectmeNT, tried before Little, J., at Spring Term 1868, of' the Superior Court of Burke. The facts agreed were that in 1818 one Polly Kincaid (wife-of John Kincaid) was tenant in common with one Alfred Perkins, of the land in controvesy. In the same year she joined her husband in a deed for the land to the said Alfred in fee, at the price of $1,000, but there was no privy examination of her. She died in 1820, and her husband in 1867.

<p>Since the Act abolishing imprisonment for debt, Courts of Equity have-jurisdiction of suits by judgment creditors to subject their debtors’ legal choses in action, after a return of nulla Iona.</p>

PETITION, to recover damages caused by the erection of a mill, tried before Buxton, J., at Fall Term 1868 of the Superior Court of Anson. Upon the trial, the defendant’s counsel asked] the Court to charge the jury, thatif the water backed, by the dam below, upon the wheels of theplaintiff’s mills produced no injury to the plaintiff, the latter was entitled to no damage.

EjbctmeNT, tried before Cannon, J., at Fall Term 1868 of' the Superior Court of OheroKEE. The plaintiff claimed under a grant from the State to one-Clausine, a Cherokee Indian; and then showed that Clausine had conveyed to him by deed dated August 15 1864.

<p>MotioN, for an injunction, allowed by Barnes, J., at Spring Term 1868 of the Court of Equity for Bertie.</p> <p>Tbe complainant had filed tbe bill at Spring Term 1866, asking for tbe specific performance of a contract to sell a tract of land described. It alleged that tbe defendant, as trustee for sale, bad exposed the land at auction, for Confederate money, on tbe 22d of January 1863, that tbe attendance was considerable, tbe sale a fair one, and tbe complainant bad purchased at tbe price of $500. Some time thereafter sbe tendered tbe money to tlie defendant, and demanded a deed, but be refused to give’ it. Sbe submitted to pay tbe value of tbe Confederate money at tbe time of sale, either in specie or currency, as sbe might be required.</p> <p>The answer, filed at the same Term, admitted tbe sale, and that it was for Confederate money, but alleged that it was expressly for cash; that tbe complainant bought by tbe favor <of those present, as widow of tbe trustor, and it was so pro-claimed by persons at tbe sale; that she agreed previously to the sale, to give two-thirds of the land to one Burch, who was there present to bid, but by such agreement was induced not to do so; that the complainant had made no offer to pay for the land until some eight or ten months afterwards, (currency in the interval having greatly depreciated,) when her offer was declined; that the price is a very inadequate one, the land being worth more than $2,000 in good money; that the credi-. tors secured under the trust have notified him not to make a deed, Ac., Ac.</p> <p>At Fall Term 1861, upon motion of the complainant, it was ordered that an injunction should issue against the defendant, restraining him from prosecuting a certain action of ejectment, pending in the County Court of Bertie for possession of the land in controversy, until the hearing.</p> <p>From this order the defendant appealed.</p>

<p>Murder, tried before Cloud, J., at Fall Term 1868, of the Superior Court of Surry.</p> <p>Upon the trial, one Minta Harston, then under sentence of death for the murder of the deceased, was introduced on behalf of the State. The prisoner excepted to her competency, but. the Court overruled the exception.</p> <p>The State also introduced a witness by the name of James-Manly. Upon his cross-examination, in order to show ill-feeling on his part to the prisoner, he was asked whether he-had not been in jail under suspicion of the same offence. To-this he replied in the affimative. He was further asked, if the-prisoner was not a witness and had not sworn against him on. the examination before the coroner. To this he replied that, he did not hear the prisoner examined, but he had heard that. the prisoner was a witness, and had sworn against him. This was excepted to by the State as being hearsay. The Court., sustained the objection, but added, that the defendant might/ ask the witness what his feelings were towards the prisoner.. The prisoner excepted.</p> <p>Yerdict, G-uilty; Eule for a new trial; Eule discharged;-. Judgment and appeal</p>

<p>'The equity of marshalling cannot be administered upon an application by a Sheriff for instructions for the distribution of money raised upon sundry executions.</p> <p>If an execution hy its own teste be upon an equal footing with executions in behalf of other persons, it will not be postponed because, being an alias, the original upon which it issued was indulged.</p> <p>'Where some of the executions were against a firm, and others against O., one of its members, Sold, as the property sold was firm property, and insufficient to satisfy the former class of executions, the money should be divided pro rata amongst those, in exclusion of the latter class;</p> <p>.Also, that the fact that one of the firm creditors was secured by a mortgage upon the separate property of O., had no effect in postponing his rights to the proceeds in the hands of the sheriff.</p>

PARTITION of lands, tried in the Superior Court of Ware, upon ■demurrer to the complaint, by Watts, J., at Chambers, on the 26th day of January 1869.

Case, before Warren, J., -upon a demurrer to tbe declaration, at Spring Term 1868 of the Superior Court of Hyde. The plaintiff declared that the defendant being seized of two certain pieces of land in said County, describing them by metes and bounds, for a valuable consideration sold them to Mm by deed, The defendant filed a general demurrer. His Honor sustained the demurrer, and the plaintiff appealed.

RetuRN of a sheriff, asking instructions from tbe Court as to tbe application of money raised by virtue of sundry executions in bis bands, — made to Watts, J., at Fall Term 1868, of tbe Superior Court of Halifax. The money bad been raised out of tbe lands of one Eaulcon, by sale made June 15, 1868.

PETITION for a Mandamus, filed in this Court. The petition alleged that the petitioner had been duly elected Solicitor of the 12th Judicial District, and subsequently had received from General Canby a certificate of that fact; but that upon producing the same to his Honor, Judge Cannon, in the Superior Court of Haywood, and' requesting to be qualified, he had refused his application, upon the ground that he was disabled by the XIYth Amendment to tibe Constitution of the…

CONTEMPT, adjudged by Tourgee, J., at Pall Term 1868, of ithe .Superior Court of Randolph.

<p>EXCEPTION, to a report, in an action upon a guardian bond,., allowed by Oühy, J., at Spring term 1868, of tbe Superior Court of Guileoed. ■</p> <p>Tbe report sets forth, that tbe defendant, Mebane, became-tbe guardian of Margaret Cummings, J. T. Cummings, and the-relator, D. W. Cummings, at February term 1859, of tbe Court of Pleas and Quarter Sessions, for tbe county of Guilford; and at tbe same time, received tbe sum of four hundred and forty-four dollars and sixty cents, belonging to tbe estate of bis-wards. Soon thereafter, be loaned out this money to a solvent', person, taking good security. In December 1862, tbe principal in tbe bond, “ being about to remove from tbe State,” tendered tbe amount of the debt to the guardian, in Confederate currency and be accepted tbe same. In February 1868, Margaret. Cummings and J. T. Cummings having both arrived at full age, received their portions, leaving only the amount due tbe relator, in tbe bands of tbe guardian, who states that be “ kept tbe same until tbe act of tbe Confederate Congress, requiring-all the old issue of Confederate money to be funded, or converted into the new issue, and that in order to prevent loss, be ■ converted tbe money received into new issue, which be kept-among his own, and used promiscuously with bis own, as he* could not lend it out, and that upon the expiration of tbe Confederate government, all tbe money be had, including that due-bis ward, became worthless, and that from tbe time be received. the new issue, up to the day the money became worthless, he had on hand an amount of new issue, more than sufficient to cover the amount due the relator.”</p> <p>The report of the commissioner charges the guardian with “the full amount received in December 1862, making no deduction on account of Confederate currency; and also with a small amount for negro hire.</p> <p>The defendant’s counsel filed the following exception, to wit: The defendant objects to the confirmation of the report- of fhe clerk. He charges the defendant with the whole amount of money in his hands at the expiration of the Confederate government, which money was in his hands, being unable to loan the same, and being compelled by the existing government io receive the new issue, or lose the Confederate money collected in December 1862; against the evidence in the case.”</p> <p>His Honor below sustained the exception, and gave judgment against the plaintiff for costs. Thereupon, the plaintiff .appealed.</p> <p>cited Emerson v. Mallett, Phil. Eq. 234, and Donnell v. Donnell, lb. 148, and commented on the fact that the guardian had mixed the money received, with his' own.</p>

Debt, tried before Little, J., at Spring Term 1868 of the Superior Court of CLEVELAND. The plaintiff declared upon a bond made by the defendant as surety to one Shuford. The bond produced was for “ one hundred and twenty-five dollars in specie.” It was shown that tbe words “ in specie,” bad been added after tbe execution of tbe note, by agreement between tbe plaintiff and Shuford, in the absence of tbe defendant and against bis consent. .

BepleviN for a mule, tried before Shipp, J., at Spring Term 1868, of the Superior Court of MadisoN. Upon the trial the defendant offered his wife as a witness in Tils behalf. The plaintiff objected, and she was excluded by -the Court. Yerdict for the plaintiff; Rule for a new trial; Rule discharged; Judgment and appeal.

Bill, set down for argument upon general demurrer, at Spring Term 1868 of the Court of Equity of EaNDOLPH, and transferred to this Court. The complainants are the heirs at law of William Patterson deceased, and their claim for relief is founded upon the following clause in the will of their grand-father John Patterson: “ Item. I give and devise to my wife Mary, my tract of land lying in Forsythe county, to have and to hold, during her life.

Bill in equity, set for bearing upon the pleadings and proofs,, and transferred from the Eall Term 1808, of the Superior Court of Cleaveland.

<p>Rill in equity, set for bearing upon the pleadings and proofs at Pall Term, 1867, of the Court of Equity for Rutherford, .and transferred to this Court.</p> <p>The plaintiff alleged that in 1855 he had qualified as executor of the will of one Whitesides, and that by such will certain legacies of money and other property were given to, •amongst others, the defendant, who was then and still remains, •an infant without guardian; that he had endeavored to get rid of his obligations as executor towards her, but without success, ■owing to her condition; that in managing the legacies given to her, he had received in 1862 for property sold, and in 1863 .(March 19th,) for a note, a considerable amount of Confederate money, which he had not been able to lend, and therefore had been obliged to retain and had retained, until, by the ■events of the war, it became worthless; that at the time he received the money it was the universal custom of prudent business men to receive it for such claims; that after it was received he had invested a much larger amount of his own funds in Confederate bonds, with the intention of allowing .the defendant, if she chose, to receive payment in them or in •currency; and that he had never received any individual benefit .from the money so collected for the defendant.</p> <p>The prayer was that the defendant (and the other legatees,) ■might come to an account with the plaintiff, &e., and for further relief.</p> <p>The answer of the defendant put the plaintiff upon proof' of his allegations.</p> <p>Proofs were taken establishing the allegations of the bill j- and by a report of a commissioner appointed by the Superior Court to state an account, the plaintiff was exonerated from all liability in respect to the Confederate money received as. above. The defendant excepted to the report.</p>

PETITION for the sale of land for partition, beard upon exceptions to the report of the commissioner, by Logan, J. at •Spring Term 1868, of the Court of Equity for Gaston. The petition having been filed by numerous parties, it was referred to a commissioner to inquire and report upon their ■various titles, and shares therein.

LarceNY, tried before Warren, J., at Spring Term 1868 of the Superior Court of WayNE. This was an indictment against the defendant and one John Thomas, for stealing a mule. The evidence was that the mule was the property of Council Wooten, administrator of John Wooten, deceased, and that it was stolen on a Saturday night from the residence of Mrs. Wooten, widow of said John Wooten.

<p>Bill, filed at Spring Term 1861 of the Court of Equity for •■C URRITUCK, against the executor and the devisees of one Alfred Perkins; and at Spring Term 1868, set for hearing •upon bill, answers and exhibit, and transferred to this Court.</p> <p>The bill set forth the death of Perkins, in Currituck County, in 1856, leaving a will in which, amongst other things by the second clause thereof, he devised “ to Mollie Frost my Skillet-handle Farm containing about one hundred and forty-five • acres, provided she is willing to release my estate from any ..amount I may owe her as guardian; but if she has no heir begotteu of her body at her death I give and bequeath the foregoing property to her two brothers Thomas Frost and Alfred Frost, to them and their heirs forever; ” and, by the ..•ninth clause, “ I jeave the house now used as a school house, near the Baptist Church, to be moved by my executor, at the expense of my estate, upon the Skillet-handle farm, for the use of the same.” It further stated that the debt due to said Mollie Frost was about $1,000, and was the full value of the land-devised to her; that the devisee (now the feme, plaintiff) had. elected to take the farm, and that the plaintiffs had tendered a release of the debt to the executor; that under a decree of.' the Superior Court, the house had been sold to pay debts, and had brought $325, and that the expense of removing it would have been about $60; that they had applied to the executor-to pay them the $885, but he had refused to do so. The prayer-was for an account, and for general relief.</p> <p>The answers admitted the general allegations of the bill,., but denied the right of the plaintiffs to relief, inasmuch as the house was personal estate and had been used to pay debts, and the whole personal estate of the testator was exhausted; also that the farm exceeded in value the debt to the feme plaintiff; and the bequest of the school house, being in another clause of the will, was not intended to be subject to the conditions of the devise of the farm.</p>

INJUNCTION, dissolved by Cannon, J., at Fall Term 1868 of the Superior Court of Cherokee.

Case, tried before Mitchell, J., at Fall Term 1868 of the-Superior Court of Iredell. The plaintiff declared in two counts. In one, that the-defendants knowingly left exposed a poisonous substance at a place about which plaintiff’s cattle and other cattle were used to range; and that the defendants failed to debar cattle from it by a sufficient fence or other barrier, and that plaintiff’s cattle partook of the poisonous substance, and died.

Injunction, dissolved by Watts, J., at Fall term 1868, of tlie Superior Court of Nobthampton.

<p>Where by agreement between a slave and bis owner, certain notes belonging to tbe former were made payable to tbe latter for tbe benefit of the^ former, held, that upon tbe emancipation of tbe slave, tbe owner became. a trustee for him as to all suob notes as were then in bis bands.</p> <p>As to tbe time and tbe means of Emancipation, Quatre.</p> <p>A demurrer bad as to part, is bad as to all.</p>

ACTION to enforce the payment of legacies, tried before Fool, J., at Fall Term 1868 of the Superior Court of Per-quimaNS. The plaintiffs were some of the legatees and devisees under the will of B. S. Skinner, deceased; and the defendants were the executors, and other devisees and legatees.

TRESPASS, Q. 0. E., tried before Mitchdl J., at Rail term 1868, of the Superior Court of Caldwell. The facts are sufficiently set forth in the opinion of the Court. Yerdict and judgment for the plaintiff; whereupon the defendant appealed.

EXCEPTIONS to a report, under an order for taking the accounts of a guardian, in the course of a suit brought against him by his wards, in the Court of Equity for Caswell. No statement of facts is necessary.

ORIGINAL ATTACHMENT, before Watts, J, upon motions in the cause at Fall Term 1868, of the Superior Court of Nort h AMPTON. The attachment was issued on the 14th day of March 1868 and certain persons were summoned as garnishees.

ORIGINAL ATTACHMENT, before Jones, J., upon a writ of recordari,' at Pall Term 1868 'of the Superior Court of Beaufort. • • ' * In September 1868, the ^plaintiff sued out the attachment before a Justice of the Peace, which after reciting that the plaintiff had made oath before him “ that Jerry Williams and J ames Brinkley are jointly indebted to him in the sum o one hundred and fifty dollars, and the said Edward S. Marsh-haring given bond,” &o., directed the property to be…

ActioN for the recovery of land, and for an injunction, heard by Watts, J., upon a motion to dissolve the injunction, theretofore granted, in the Superior Court of Wake, at Chambers, December 14, 1868.

Bill, set for hearing upon exceptions to a report by the ■clerk and master, at Spring Term 1868 of the Court of Equity for G-uilford, and transferred to this Court by consent. The plaintiffs were the next of kin of one John Amick, deceased, and the defendants were the guardian and the administrator o.f the deceased, together with a representative of another one of the next of kin. At Pali Term 1866 the cause had been referred to the clerk and master, to state an account.

MotioN to set aside a sale, reported as having been .made under an order of this Court at June Term 1868. No statement of facts is necessary.

<p>In construing a will, the chief object being to ascertain tbe meaning of the testator, words may be supplied or abstracted, grammatical arrangement, disregarded, and clauses transposed; therefore,</p> <p>where the context requires it, “ oldest” may be read, “ youngest</p> <p>Where a testator in 1861, provided that “ Sellen” should “receive $2,000' less than either of my other two children,” out of an estate consisting of lands, slaves, &e., Held, that the amount at present, by which Hellen’s share is to be diminished, is to bear such proportion to $2,000, as is. borne by the present value of the estate (reduced by the results of the; war) to such value in 1861.</p> <p>Provisions, that upon the marriage of the testator’s second daughter, her share should be taken out and allotted to her; and if either of the three-youngest children, of whom the daughter was one, should die before the time appointed for the division of the estate, the survivors should inherit, her share, — did' not operate to give such daughter’s share to the swvivot-s, upon her death after marriage, although, in fact, there had been no. division of the estate.</p> <p>Where a testator directed a division of his estate upon a certain contingency, and that a particular share thereof should thereupon be regarded, as realty, Held, that such share was to be so considered from the happening of such contingency, even although there was no division.</p> <p>Note. — This case was decided at the last Term.</p>

Rill in equity, set for bearing upon bill and answers, and by consent transferred to this Court, at Fall Term 1868 of the ■Superior Court of Tyrrell. The plaintiff was administrator of one Joseph Caroon; the defendants Cooper and another were executors of one Davenport, and the other defendants were the widow and children •of Joseph Caroon.

Bill in equity, set for hearing upon the pleading and proofs, at Pall Term 1868, of the Superior Court of MacoN, and. then by consent transmitted to this Court. The facts appear sufficiently in the opinion of the Court.

PETITION for Dower, heard by Fowle, J., at Fall Term 1867, -of the Superior Court of Warren. The plaintiff as widow of one William P. Rose, filed her petition against the defendant at Fall Term 1867, praying for dower in the land, as that of which her husband had been seized during coverture. The defendant claimed the land by virtue of a deed of trust executed to him by the intestate March 25th 1867, and registered on the same day.

Bill, set dowu for hearing upon pleadings and proofs, at Spring Term 1868 of the Court of Equity for BuNCOMBE, and by consent transferred to this Court.

Proceedings for Contempt of Court. Upon Monday the 19th day of April 1869, the following article appeared in tbe columns of the Daily Sentind, a newspaper published in Raleigh: , “ A SOLEMN PROTEST OP THE BAR OP NORTH CAROLINA AGAINST judicial INTERFERENCE IN POLITICAL AFFAIRS.

<p>Note. — Afterwards, at various times during the term, answers substantially concurring with that given in the above report, were filed by Messrs Eaton, Conigland, Davis, Jenkins, Merrimon, Tenable, York, Barham, Busbee, Eogers, Batchelor, Dortch, Strong and Whiting, and thereupon the rule was ordered to be discharged likewise as to them.</p>

MaNdamus, tried before Watts, J., at Spring Term 1869, of the Superior Court of Wake. The petition, filed at the same Term, in the name of “ The University Rail Road Company,” set forth that the petitioner was a corporation created by An Act ratified January 30,1869, as amended by another Act ratified April 1st, 1869, for the purpose of constructing a rail road between Chapel Hill and a certain point on the line of the North Carolina Rail Road.

■ Rule upon plaintiff, heard by Cloud, J., at Spring Term 1869 of the Superior Court of Rowan. The plaintiff had sued the defendant to Fall Term 1867 of that Court, and for the prosecution of his suit had given bond, on the 3d day of August 1866, with one Hodge as surety.

INDICTMENT for Fornication and Adultery, tried before Cloud, J., at Spring Term 1869 of the Superior Court of Porsythe. Upon the trial it appeared that the defendant Hairston was ■a colored man, and the defendant Williams a white woman; and that they were cohabiting as man and wife at the time of the finding of the bill. The defence was that they had been duly married.

Debt, tried before Pool, J., at Spring Term 1869 of the Superior Court of HERTFORD. Tbe plaintiff declared upon a plain bond, “ for value received ” promising to pay to Mm one thousand dollars, with interest from date, and dated the 26th day of September, A. D. 1864. The defendants pleaded General issue, Payment and Set off.

<p>MotioN to dismiss a writ of Summons, heard before Tourgeef J., at the Superior Court of Guilford, at Chambers, on the 1st day of July, 1869.</p> <p>The plaintiff, on the 14th day of June 1869, had issued a writ of Summons, asking “for a judgment according to the prayer of the complaint,” returnable at the office of the Clerk, &c. Upon the 18th of June 1869, a motion to that effect having been made by the defendant, the Clerk dismissed the Summons, on the ground that it should have been made returnable to the regulor term, &c.</p> <p>Upon an appeal to the Judge of the Superior Court for the ■ 7th Judicial District, His Honor reversed the. Clerk’s judgment, upon the ground “That the Act of Assembly requiring the Summons in all cases to be made returnable only to the regular term of the Superior Court is in direct conflict with Art. IY, Sec. 28, of the Constitution of this State. The making up of issues is certainly part of the “business” for the transaction of which the Courts are “at all times open.” The provision making the Summons returnable only at term would close the Courts for this “business” for deven months in each, year.”.</p> <p>Thereupon the defendant appealed to this Court.</p>

Bastardy, tried before Pool, J., at Fall Term 1868, of the Superior Court of Pasquotank. There was an issue made up in the said Court to determine whether the defendant was the father of the bastard child of one Nancy Harvey, with which he stood charged. The jury found in the affirmative; and the solicitor for the State moved for an order of affiliation, which was granted.

Debt, tried before Fool, J., at Spring Term 1869, of the Superior Court of G-ates.. The plaintiff declared on a bond at sis months, endorsed to him by one John P. Jordan. The execution of the bond was proved; and its assignment to the plaintiff for full consideration, without notice of any claim of the defendant.

Assumpsit, tried before Pool, J., at Spring Term 1869 of the Superior Court of Hertford. This action was commenced in the Court of Pleas'and Quar- ' for Sessions, and carried by appeal to the Superior Court. At Spring Term 1869, the defendant obtained leave to suggest ¡the Bankruptcy of the plaintiff, and to enter it as a Plea since last continuance; to this there was a replication, that the plaintiff held the claim in trust for another.

' Motion to set aside an execution against the person, heard before Logan J. at Spring Term 1869, of the Superior Court Of LINCOLN. The Judgment under which the execution issued had been obtained before a magistrate in Mecklenburg County in October 1868. Without being docketed in that county it was sent to Lincoln county and docketed, from the original papers, there.

MisdbmeaNOR, in altering tbe mark of cattle, tried before .Jones, J., at Spring Term, 1869, of tbe Superior Court of Beaufort. After a verdict of “not guilty,” tbe defendant’s counsel moved that Tbomas R. Lupton, as prosecutor, be made to pay ¡tbe costs.

Assumpsit, tried before Pool, J., at Spring Term 1869 of' the Superior Court of Pasquotank:.

COVENANT, tried before Mitchell, J., at Spring Term, 1869, -of the Superior Court of Alleghany. The action was brought upon a bond in the usual form, for the payment of eight hundred and eighty dollars, bearing date May 1862, signed and sealed by the defendant Edwards, and by A. B. McMillan, dec'd, the intestate of the other defendant.

MotioN, to set aside a judgment by default, made before Buxton, J., at Spring Term 1869, of the Superior Court oí Cumberland. This is the case reported in ante 185. Upon return of the case, the plaintiffs obtained leave to amend their writ by striking out the names of all of the defendants, except that of R. D. Dickson, as to whom judgment final by default had been irregularly entered at Spring Term, 1867.

Larceny, tried before GantweU, J., at January Term 1869,, of the Special Court of Wilmington. The defendant was indicted for stealing “one, axe, of the-value of five cents,” and thereupon demurred on the ground' that the Court had not jurisdiction. The Court sustained the-demurrer, and directed the defendant to be discharged. Eronn this order-the Solicitor appealed.

<p>Aeson, tried before Logan, •/., at Spring Term 1869 of the .Superior Court of Gaston.</p> <p>Upon the trial it was shown that the building charged to have been burned, was of hewn logs closely fitted together, .twenty-sis feet by fifteen in size; that a partition of hewn logs ran through it, cutting off eight or nine feet from the length,, .for stables, in which were kept his. horses; that the other part , (having an upper and a lower room,) usually held fodder, hay, and (in the room below) oats, rye, and wheat, in the straw and threshed; also, sometimes, corn; that there were sheds adjoining on three sides, in which were kept the owner’s buggy . wagon, threshing machine, wheat-fan, ploughs, farming tools*, &c¡; and that when burned the building contained two horses,, sixty bushels of threshed oats, ten bushels of corn, and a few bushels of rye.</p> <p>Upon the trial the State introduced one Louisa Costner? and upon cross-examination for the prisoner, she was asked if “she did not hare a bedstead in her house ?” The question, having been objected to as irrelevant, the Court asked what-was its object. The counsel declined to answer in the presence of the witness, as it would enable her to evade it, but added that they expected to connect it with the'casé. Thereupon the-■Court excluded the question, and the prisoner excepted.</p> <p>The prisoner introduced one James Davis as a witness .to -character’ only, who testified that the character of certain State-witnesses was bad for virtue and truth. He was afterwards asked by the State if the-character of those witnesses was not as' good as his own, both for virtue and truth. The prisoner’s' counsel told the witness that hé need not answer that question.' The-Solicitor did not insist upon an answer, and none was made.</p> <p>The prisoner then introduced a witness, and proposed to-prove the character of James Davis; the State objected, and the, objection was sustained.. . Thereupon the prisoner excepted..</p> <p>Verdict, G-uilty; Rule for New Trial; Rule discharged;. Judgment, and Appeal.</p>

EjectmeNT, tried before Buxton, J, at Spring Term 1869, of the Superior Court of Cumberland. The land in dispute consisted of about sis acres, and was included between two roads or sections of roads, both leading from “Smith’s ferry to Bass’s ferry.” The deed of the lessor of the plaintiff called for “ the main road from Smith’s ferry to Bass’s ferry on Neuse,” as one of its boundary lines. The question submitted to the jury was the proper location of this line.

MOTION to dismiss a summons, heard before Buxton, J., at Spring Term 1869 of the Superior Court of Haenett. The facts are sufficiently set forth in the opinion.

<p>Murder, tried before Buxton, J., at Spring Term 1869, of the Superior Court of Moore,</p> <p>The jury having returned a verdict of guilty, there was a rule upon the State to show cause why a new trial should not be granted for the following reason, viz:</p> <p>That K. H. Worthy, who as Sheriff of Moore county summoned the regular jury, grand and petit, for the term as well as the special venire in the case, was not the lawful Sheriff of the county of Moore, being disqualified under the XIV Amendment of the Constitution of the United States. (See-Worthy v. Barrett, ante 199.)</p> <p>Rule discharged; Motion in arrest of judgement for th& same grounds as those taken for a new trial; Motion overruled; Judgment and Appeal.</p>

Motion to set .aside a judgment, heard by Russdl, J., at Spring Term 1869 of the Superior Court of Sampson. The defendant’s counsel moved-to, set..aside a judgment rendered in an action of irouer,.at Pall Term .1867 .-in favor of the -plaintiff. The judgment had been entered by ¡consent of-the •defendant’s .counsel.

Larceny, tried before Oloud, J., at Spring Term 1869, of the Superior Court of Eowan. The defendant was convicted of the larceny, whereupon he moved that the judgment be arrested for the following reason: that as the punishment of the offence had recently been altered by statute, the indictment should have concluded “ against the form of the statute, &c.” Motion overruled. Judgment and appeal.

Replevin, tried before Jones, J*. at Spring Term 1869 of tbe Superior Court of Beaufort. At tbe time when tbe writ was served upon tbe defendant Credle, tbe schooner, tbe subject of tbe suit was in tbe possession of Respass, a Constable, wbo bad seized it by virtue of an execution; and Credle refused to give bond.

Misdemeanor, in killing live-stock, tried before Jones, J.r at Fall Term 1868, of the Superior Court of Beaufort. The defendant, was indicted for killing a steer: in the first count alleged to be property of one James Edwards, and in the second, of some person unknown.

MOTION to vacaté a recognizance, heard before Ganmn, J.r at Spring Term 1869, óf the Superior Court of Cherokee. This was a proceeding commenced in the usual form before-a Justice of the Peace, in which the relator' charged the-defendant with being the father of her bastard child.

<p>Whenever the Clerk of a Court is appointed to make sales, &c., it is to be taken that he is appointed in his official capacity, unless the order of appointment expressly negatives the idea; and for default under such appointment the Clerk and his sureties are liable upon his oficial bond.</p>

<p>Case, tried before Tourgee, J., at Spring Term 1869 of the-Superior Court of Guilford..</p> <p>The plaintiff declared against the defendant as a common Carrier, 'Warehouseman and Forwarder, for damages sustained in the loss of certain cotton received by the defendant, at Columbia S. C., for transportation to High Point in Guil-ford County.</p> <p>The cotton was received by the defendant in February 1864, under a special contract in writing, by which it was. claimed that it was liable tor gross neglect only. It was carried to Charlotte, and the damage sustained by it was received at the depot there, where it was left upon the ground' exposed to the weather for several months, until the larger portion of it had rotted. It had reached that point about the first of March 1864, and remained there until August.</p> <p>It was shown for the plaintiff that he had gone to Charlotte about the first of April 1864, and after some negotiation with officials upon both Roads, had been imformed that the N. C. R. R. Co., would receive and transport the cotton immediately, the cotton being then in fair order, lying as above described, at the depot; that upon applying at the office of the defendant to have it delivered at once, he was told that their hands were absent upon some other employment; and upon his offering to hire hands himself in order to deliver the cotton, he was also told that the defendant would not permit freight that was in its hands for transportation, to be interfered with, in that-way — the official adding that the cotton would be delivered to the North Carolina R. R. Co., during the next three days. The plaintiff being satisfied with these assurances returned to his home in Guilford.</p> <p>The defendant introduced evidence tending to show that Its Road was then greatly embarrassed and encumbered by military orders freight and passengers; and, with regard to the cotton, that on the next day after the plaintiff had visited Charlotte (as above) the defendant had offered to deliver the cotton to one Keisler the receiving and loading clerk of the N. C. R. R. Co., at that place, and that he had refused to receive it, on the ground of military orders freight, &g.</p> <p>Afterwards one Scott, a witness for the plaintiff testified that Keisler was not authorized to receive, or refuse freight for the N. C. R. R. Co.</p> <p>The view of the case taken by the Court renders it unnecessary to set forth more of the facts.</p> <p>His Honor instructed the jury that the defendant wa® bound to ordinary diligence in’ storing and forwarding the cotton, and that if they should find that it had failed to exercise such diligence, then the plaintiff should recover.</p> <p>Yerdict for the plaintiff; Rule for anew trial; Rule discharged; Judgment and Appeal.</p>

Trespass, Q, C. E., tried before Jones, J., at Spring Term, 1869, of the Superior Court of Beaufort. Upon the trial a question arose as to the rights of the plaintiff under an alleged lease of the premises to him by the defendant.

Order to pay costs, made by Gloud, J., at Spring Term 1869, of the Superior Court of Forsyth. The defendant was endorsed as prosecutor on a bill of indictment for larceny of a mule, found at Fall Term 1867. On the trial there was a verdict of “not guilty,” and, the prisoner-was discharged.

Robbeey, tried before Watts, J., at Spring Term 1869, of «the Superior Court of Ware. The bill of indictment was found at Spring Term 1869, of -■¿lie Superior Court of Franklin, and upon the affidavit of tlie .defendants, the cause was removed to Wake. The facts suffi«ciently appear in the opinion.

LaeceNY, tried before Gannon, J., at Spring Term, 1869, of the Superior Court of Transylvania. The defendant was indicted for stealing a hog, the property of one Lydey. It was shown on the part of the State that a warrant was issued against the defendant at the instance of the prosecutor, Lydey, and that when it was being served, Lydey charged the defendant with the theft.

<p>'The “Act to suspend the Code of Civil Procedure in certain cases,” ratified March 16th 1869, does not repeal \ 116, C. C. P., so as to allow of “pleas” without verification.</p>

<p>Case, tried before Tourgee, J., at Spring Term 1869 of the-Superior Court of Alamance.</p> <p>The plaintiff showed that at the time of the occurrence (April 21st, 1865) he was a citizen of Virginia, and an officer of the-Confederate army; and that upon the fall of Richmond, a few days previously, he had escaped from a Confederate hospital, there, without having been captured or paroled; that he came-from Richmond to the neighborhood of the Company Shops in Alamance County, and on the 21st of April, 1865, took passage' in a train belonging to the defendant for Greensboro; and that, his object in going to Greensboro was to report to General Joseph E. Johnston, commanding the Confederate forces in this', department at that time.</p> <p>The personal injuries of which he complained were received! upon that train, through the alleged negligence of the. officials! of the Company.</p> <p>The Court thereupon, at the instance of the counsel for the' defendant, intimated an opinion that the plaintiff could not recover, by reason of the unlawfulness of the errand on which he was going at the time of the alleged injury: he then and there being an officer of the Confederate army, in the line of his duty as such, upon his way to report to his superior, and so, engaged1 in an.act of hostility to the government of the United States.</p> <p>Thereupon the plaintiff submitted to a non-suit, and appealed..</p> <p>1. The defence made requires to be set forth by a Plea, in abatement; and is not competent under the General Issue. 1 Chitty 446, 448, 2 Abbott p. 25.</p> <p>2. The defendant, being in pari delicto, cannot set up such; a defence. Does civil war dissolve society, and destroy the* legal remedies of insurgents against each other ?,</p> <p>3. As matter of public history, at the time the injury in. question was inflicted, there were negotiations for peace on foot between General Sherman and General Johnston; and a truce covered the country between the Shops and Greensboro;, rand peace was proclaimed by those parties on the 26th of April thereafter. The presumption therefore is, that the plaintiff •did not intend hostility to the United States by his action, '¿but only to place himself in a situation to be surrendered.</p> <p>4. The Ordinance of 18th October 1865, proclaimed the whole body of laws in North Carolina (except so much as was •intended to support the civil war) to be and to have been in force; rand as matter of common observation, the greater part of the litigation now existing arises from torts and contracts that .arose during the war,</p> <p>The only question is, whether an officer of the Confederate .‘States army, can, in a Court under the United States, enforce against the party transporting him to the field, the ordinary .duties of diligence as to speed or safety of carriage, demand-.able by passengers ? Would such Courts entertain suits for •failure to transport safely Confederate regiments, which •thereby failed to be at a certain battle; or, say, Confederate ammunition or army stores which by not arriving crippled an .army ? We do not speak of cases of trespass, much less of breaches of the peace, against such persons, nor in any manner -of their personal rights, except for damages occasioned by negligence of their right to personal security whilst engaged in an act of hostility. Whether this be by loyal persons or by persons •inpari delido these Courts may well say, “Look ye to it, we will be judges of no -such matters!</p> <p>The character of the act by which an officer of the army of Virginia, which at that time had been surrendered, who found ¡himself in a district covered by a truce, was seeking, an opportunity to increase the strength of another, and that the only •considerable Confederate army then in the field, need not be -enlarged upon. Prima facie, it was hostile. If it might have been explained by evidence, it was not.</p> <p>It may not always be necessary, in order to recover damages for injury, that the passenger shall have paid or engaged to pay fare; but it is necessary that be shall plead and prove that he was “lawfully” on the Road. Darby v. B. B. Company, 14 Now. U. S. 468, 4 Rob. Pr. 785, Lygo v. Neiobold, 34 Eng. L. and E. 507.</p>

MotioN fo dismiss, beard by Watts, J., at Spring Term 1869 of the Superior Court of Northampton» On Tuesday of the first week of the term a rule was taken upon the plaintiffs to justify their security for the prosecution of the action, or to give other security.

Habeas CORPUS, heard by Oantwell, J., at April Term 1869, of the Special Court of the City of WilmiNGton. The petitioner was brought before a Justice of the Peace on the charge of larceny, convicted and sentenced to be fined and imprisoned. She afterwards sued out a writ of habeas corpus before Judge Cantwell, and was discharged; his Honor being of the opinion that the Justice had no jurisdiction, or liad exceeded his jurisdiction.

<p>WHiere, upon trials for capital offences, questions arise as to the propriety of discharging the Jury without a verdict: whether a necessity exists for such discharge is a matter to be decided by the Judge presiding at such trial; and it is his duty to ascertain the facts which constitute such necessity.</p> <p>The exercise of such discretion in any particular case of discharge may be appealed ñ-om, and in such case the finding of the facts in the Court below is conclusive, leaving the law as deduced from such facts, to be reviewed.</p> <p>In a case where three persons were upon trial for murder, the prisoners proposed, that they should be examined as witnesses for each other. The State objected, but the Court allowed the motion; thereupon the Solicitor appealed, and the Court, to allow him such appeal, against the objection of the prisoners withdrew a juror and made a mistrial; Held, to have been an erroneous exercise of discretion, and that thereupon the prisoners were entitled to a discharge.</p>

Soire Facias, tried before Buxton, J., at Spring Term 1869 of the Superior Court of UNION. The facts necessary to an understanding of the Opinion are lío be found therein. Judgment having been rendered for the plaintiff, the defendant appealed.

AMENDMENT of a transcript, ordered by Henry, J., at Spring Term 1869, of the Superior Court of McDowell. The defendant had been indicted in Mitchell County for-cheating; and upon his affidavit, the case was removed at Fall Term 1866, to McDowell, for trial. At the last term the Solicitor for the State suggested a diminution of the 'record, in that tlie transcript from Mitchell did not show that, issue had been joined.

Case-agreed between the parties, adjudged by Bussell, J. at Spring Term 1869, of. the Superior Court of New Hanover.

Assumpsit, tried before Gloud. J., at Spring Term 1869 of the Superior Court of Rowan. The facts appear sufficiently stated in the Opinion. Verdict for the plaintiff; Rule for a new trial; Rule discharged; Judgment, and Appeal.

Motions, to vacate an order of arrest, and to discharge an-attachment, made before Watts, J., at Noethampton, at Spring-Term, 1869. The allegation upon which the order, and attachment had been granted, was (so far as material here) as follows: “That the said Thomas J. Person has disposed of and; secreted his property, with intent to defraud his creditors.” His Honor allowed the motions, and the plaintiff appealed..

BastaRDY, before Hitched, J., upon a motion to quash the proceedings, at Spring Term 1868, of the Superior Court of .Mecklenburg. It was admitted that the mother was from South Carolina, •and at the time of the child’s birth had resided in Mecklen-iburg County for but a few days. His Honor directed the proceeding to be quashed, where•upon the State appealed.

ACTION upon a promissory note, begun by warrant, tried! before Buxton, >7, at Spring Term 1869, of the Superior Court, of Cumberland. The defendant pleaded, “ the Statute of Limitations.” His Honor having given judgment for the plaintiff, the defendant appealed. The facts are stated in the Opinion.

Debt, tried before Jones, J., at Spring Term 1869 of the Superior Court of Maetin. '®yThe plaintiff declared on a bond for $250,00, dated 22d Dec. 1862; and on the trial offered to prove that it was given for a mule, worth $250,00.

Laroeny, tried before Mitchell, J., at Spring Term 1869 ■of the Superior Court of BurKE. The defendant was charged with stealing certain bacon, &c.; •and it was shown that the things taken by him were upon the premises occupied by the owner, which had been placed in 'his custody by such owner, who was also his master, when •about to be absent from home for a few days.

MotioN to supply a lost record of the late Superior Court, of Law andEquity for Johnston County, made before Watts, J.T at Spring Term 1869 of the Superior Court of Johnston. An action of ejectment between the above named parties,, was pending in the same Court, and in that the plaintiff claimed title through a Sheriff’s sale under a certain execution which had issued from the former Superior Court of Law and Eqi.ty for-Johnston County, and which was now said tobe lost.

Bill, to set aside a conveyance alleged to be fraudulent as against creditors, transmitted from Chatham Court of Equity, Fall Term 1868. The facts are stated in the Opinion.

INJUNCTION, tried before Watts, J., at the Spring Term. 1869, of NORTHAMPTON Superior Court. On the 15th of April; 1869, the plaintiffs filed ■ a complaint against the defendant- alleging that the latter, at Fall Term 1867, had obtained a judgment by default final against them, for more than $590.00, upon a bond in which Mason was principal and Palmer surety.

Rule upon a sheriff to bring the proceeds of an execution ■sale into Court, &c., granted by Tourgee, The plaintiff was an execution creditor of one Faucette, against whom the defendant as Sheriff had sundry executions, under which he had levied and sold, and received the money in dispute.

MotioN to dimiss an appeal from the Spring Term of the Superior Court of Iredell, made at this term of the Court.

<p>ARSON, tried before Watts, J, at Spring Term 1869 of the Superior Court oí Eranklin.</p> <p>The tacts appear in the Opinion of the Court.</p> <p>Verdict, Guilty; Rule for a New Trial; Rule discharged; Motion in arrest of judgment; Motion overruled; Judgment, and Appeal.</p>

MotioN to dissolve an injunction, beard by Jones, J., at ■Spring Term 1869, of the Superior Court of Pitt. The facts are stated in tbe Opinion. His Honor having disallowed the motion, the defendant appealed.

MotioN to tax defendants with costs, heard by Thomas, J., at Wilson, Spring Term 1869. The defendants had been bound before a magistrate to keep the peace towards one Hagan, &c., until that Term of the Court. At that Term tbe defendants appeared, but Hagan did not. Thereupon they moved to be discharged, and the Solicitor moved besides to have them taxed with costs.

Action for the recovery of money only, tried before Logan, J., at Mecklenburg, Spring Term 1869. The complaint was for non-payment of a bond as follows: $788.16. Twelve months after date we promise to pay Young, Wriston and Orr, seven hundred and eighty-eight dollars and sixteen cents, with interest from date, payable in currency or in gold, at the rate of IÍ45 in currency for $100 in gold, at the option of the holder of the note.

Murder, tried before Tourgee, J., at Chatham, Spring ‘Term, 1869.

ActioN, to recover a penalty, brought before Cantwell, J., at April Term 1869 of the Special Court of the City of Win--HINGTON. No statement of facts here is necessary. Judgment for the plaintiff, from which the defendant ■.appealed.

<p>A legacy of #20,000 to the testator’s widow, — upon a survey of the whole -will and the state of his family and estate at his death, — declared to be a charge upon the whole estate and also upon the yearly produce of the land of his former wife, until the legacy is discharged or her cMLdren come of age; and in this latter respect, such children put to an election between them interest under the will, and them in-tetest as hems to their mother.</p> <p>({The former decree in this case modified. See Phil. Eq. 23.)</p> <p>Note, — This case was decided at the last term, but inadvertently was _not then reported. ..</p>

Debt for a penalty in not taking a prosecution bond, tried before Buxton, J., at Moore, Spring Term 1869. The plaintiffs here had been defendants in the suit in which, as was alleged, no prosecution bond had been taken. It appeared that the writ in the former case had been handed in blank signed by the Clerk, to an Attorney, who afterwards in the Clerk’s absence filled it up; and that subsequently it was executed, returned and filed.

Action for a penalty, tried by Bussd, J., at New Hanover, Spring Term 1869. ■ The rosin, in the sale of which it was alleged that the penalty had been incurred,' had left Wilmington the day before by steamer for New York, and was then'in'lráñsiiu,. The parties to the sale both resided iff Wilmington,and the1 transaction was baiia fidA. ' ‘.. ' His Honor baying given judgment for theplaintiff, the defendant appealed.

Debt, before Henry, J., at McDowell, Spring Term 1869. The defendant having moved, under the act of 16th March 1869, for a continuance of the cause then pending upon the usual pleas for delay, His Honor allowed the motion. The defendant excepted, and appealed.

Affray, before Henry, Jat Watauga, Spring Term, 1869. The defendant moved to quash the indictment, and offered •to show that the endorsement, “ a true bill,” was entered by a mistake of the clerk of the grand jury, the finding having .really been “not a true bill.” His Honor directed the defendant to file a plea in abatement to that effect, which having been done the Solicitor ■demurred. Judgment for the defendant, and Appeal by the State.

EXCEPTIONS to the report of the Clerk made under the order at', last Term, ante 866. The whole matter appears in the Opinion.

Affidavit, for a rule against a sheriff, before Logan, J., at JLinCOLN, Spring Term 1869. The facts are stated in the Opinion. His Honor discharged the rule, and the affiant appealed.

Where an agent received money from his principal with specific instructions to pay it to a certain creditor, which he failed to do, but made a different application of it for the principal’s benefit, and the creditor made no demand upon such agent until after he had parted with the money, and accounted for it with the principal; Held that the creditor could not look to the agent for such money.

ACTION for a penalty under a city by-law, tried before Thomas, J., at Craven. Spring Term 1869. The action began by summons before a magistrate, charging the defendant with violation of a city by-law in regard to tying horses to shade trees within its limits. The complaint set forth elaborately the right of the plaintiff to bring the action, and the answer set up as a defence, at length, the claim of other parties to be the rightful citygov-ernment.

Petition to sell land for assets, tried before Logan, J., at. Gaston, Spring Term 1869. In this case a question arose as to the title to the land sought to be sold: whether the testatrix had conveyed it by a deed duly executed, and registered, and made “ in consideration of her support during her natural life by the vendees.. It was contended by the plaintiff that the deed was invalid, for want of a proper consideration.

INJUNCTION, before Buxton, J., upon a motion to vacate-the order, at Staktly, Spring Term, 1869. The facts are stated in the Opinion. His Honor declined to vacate the order, and the defendants-appealed.

<p>Trespass. Q. C. P., tried before Watts, J., at NORTHAMPTON, Spring Term 1869.</p> <p>The declaration was for mesne profits, supplemental to a suit in ejectment between the parties (1 Winst. 104) for an easement in certain premises valuable mainly because of a steam saw mill and fixtures located thereupon.</p> <p>It now appeared that during the pendency of the ejectment the defendant had removed the mill and fixtures out of the State, and that after the determination of that suitin favor of the plaintiff, he was not put in possession of the premises, and had made no entry upon them before the bringing of this suit Thereupon his Honor intimated an opinion that the plaintiff could not recover, and the latter submitted to a non-suit.</p> <p>Rule, &o.; Rule discharged; Judgment, and Appeal.</p> <p>In Poston v. Henry, 11 Ire. 301, and Garson v. 8müh, 1 Jon. 106, it is held that in actions for mesne profits after ejectment, plaintiff must be put in possession or let into possession of the premises to sustain the action.</p> <p>In looking into the authorities, the above cases seem not to be sustained, except where there is judgment by default against the casual ejectors. Buller N. P. 87, Sel. N. P. 568 and note 51, 2 Sellon’s Pr. 226, Adams Eject. 336 and note, Remington Eject. 167, 2 Roscoe, on Real Actions, 708, (Law Lib.) 2 Green. Ev. 299, Esp. N.P.77, Aslin v. Parhin, 1 Sm. L. C., 610, Jackson v. Combs, 7 Com. 36, Morgan v. Varich, 8 Wend. 587. But if the general rule be as decided in cases in this State, the peculiar circumstances of our case dispense ' with it. See Stancill v. Calvert — 1 Wins. 104. The right which Jordan, (under whom plaintiff and defendant •claimed) had in the premises, had ceased — the locus in quo had 'been taken possession of and enclosed by Stephenson, the •owner, and had plaintiff entered after defendant abandoned possession, he would, as to Stephenson, have been a trespasser.</p>

<p>Motions, to dismiss an action for want of a prosecution bond, ■and to give new security, beard by Pool, J., at Bertie, Spring Term 1869.</p> <p>The action had been brought in the County Court at May Term 1868, and there was then a rule taken against the plaintiff, to justify the prosecution bond on or before Tuesday of the next August Term, or the suit to be dismissed.</p> <p>The latter Term was not held, because the Justices consid■ered that their offices had terminated.</p> <p>The County Court Clerk delivered the papers in this case •tyith others) to the Clerk of the Superior Court at Eall Term 1868. At that term the civil docket was not reached, for want -oí time. At Spring Term 1869, on Wednesday of the second week, being the first day of the civil docket, defendants moved •to dismiss, because the above rule had not been complied with, .and at the same time the plaintiff offered to give good security.</p> <p>The Court refused to dismiss, and allowed the security to be -.given; and thereupon the defendants appealed.</p>

■ Exceptions to a report, tried before Logan, J., at Catawba, Spring Term 1869. The facts appear in the Opinion. His Honor overruled the exception, and the defendants-appealed.

Civil-actioN, including a provisional injunction, before Watts, J., at Halifax, Spring Term 1869. The complaint alleged, that in 1857, the defendant Deve-reux, sold to the defendant Clark, a piece of land, and took from him sis bonds for the purchase money, and a mortgage on the land and a large number .of slaves, to secure the bonds.

Injunction, dissolved upon motion, by 'Henry, J, at Wa-■tauga Spring Term 1869.

Assumpsit, tried before Jones, J., at Pitt, Spring Term 1869. The plaintiffs declared as partners, for the price of certain lumber by them delivered to the defendant. It appeared upon the trial that the plaintiff Edwards, before he became a member of the firm, had contracted to ■deliver a quantity of lumber to the defendant, in payment of .a debt due him.

Appeal, from a motion to set aside a judgment, heard by Oloud, J., at RowaN, Spring Term 1869. The action in which judgment had been given, commenced by a warrant before a Justice of the Peace. The defendant appeared and confessed judgment, on the 13th of March 1869. On the 15th, execution'was issued and levied upon personal property.

Caveat of a nuncupative will, tried before Gloud, J., at RowaN, Spring Term 1869.

Civil ActioN, su bmitted upon a case agreed, to Watts, J., at Wake, Spring Term 1869.

Assumpsit, tried before Gilley, J., at Caswell, Spring Term 1868.

Ciyil-actxoN to obtain the construction of a will, tried by Buxton, J., at RICHMOND, Spring Term 1869. The testator, Henry W. Harrington, published his will indue form in December 1860, devising and bequeathing amongst numerous relatives and friends a large estate in lands, slaves- and other personal property. The will was elaborate, including 28 sections, and some twenty or more copy sheets.

PetitioN to sell land for a division between tbe petitioners, idled in Wake Court of Equity, 1866, and brought to this •Court by an appeal from a decree at Wake, Spring Term 1869.

ReturN by Sheriff, asking advice as to the application of the proceeds of sales under execution, to the process in his hand, made to Watts, J., at Halifax, Spring Term 1869. The principal points of difference between the parties were: 1.

<p>Ooui-ts of Equity in this State win not grant new trials of issues, sent by them to be tried at law, merely because the verdict was against the weight of evidence.</p> <p>Where the issue sent for trial was, whether 'a certain conveyance from A to B was in fraud of O, a creditor of A, and with the direction that 0 should be plaintiff in the issue, and A and B co-defendants; and upon the trial declarations made by A previous to the conveyance and whilst he was in possession of the land in regard to the state of the accounts between himself and B, were allowed to be given in evidence; Held that such declarations were not competent as against B; also, that to prevent complications on a new trial, A’s name should be struck out of the issue.</p>

Bill, filed in 1857 and transmitted to this Court at Pall Term 1867 of the Court of Equity for RobesoN. The suit was for an account and settlement of the estate of Barbara. Cade, who died in 1854, leaving a will. No statement of facts here, is necessary.

Assault and Battery, tried before Watts, J., at Granville, Spring Term 1869.