Volume 64 — North Carolina Reports

Covenant, tried upon demurrer, by Jones, J., at Spring Term 1869 of Edgecombe Court, The action bad been brought to Spring term 1867. As the question involved is an important one, and the contract which gave rise to it seems to have been drawn with care, and as the record which presents it was settled by-learned counsel, the Reporter submits the declaration (filed, in the form of a complaint, at Spring Term 1869,) in fall: IN the Superior Court op Edgecombe County.

Action for money, and Counterclaim by defendant, tried before Jones, J., at Fall Term 1869, of Tyrrell Court. The plaintiff, as assignee, held a note executed by the defendants. This action is upon such note. The defendants, W. and N. McClees, held a note on one William T. Dillin,. as endorser, which note, with interest, exceeded the amount of the note sued on. Dillin died intestate in 1865, and his widow, Mary Dillin, another defendant, is his administra-trix.

Malicious Misohiee, tried before Pool, J., at Spring Term 1869, of Perquimans Court.

Motion to amerce a Sheriff, made before Buxton, J., at' Spring Term 1869, of Cumberland Court. The facts were, that the plaintiff at Spring Term 1867,. had obtained judgment against one McLeod, and that a fi. fa, issuing thereupon, had, on the 27th day of December 1867, been duly levied by the Sheriff of Eichmond upon certain lands.

Action for money, begun before a magistrate, and tried by Buxton, J., upon appeal, at Spring Term 1869, of Cumberland Court. The note upon which the action was founded, was given February 4th 1860.

<p>Debt, tried before Mitchell, J., at Eall Term 1869, of Alexander Court.</p> <p>Tlie plaintiff declare^ upon a note payable by the defendants, originally to one Carson, and by him endorsed to one Marshall, and by the latter to the plaintiff- — all as guardians of the minor heirs of one Emily Alspaugh, deceased, being for $226.90.</p> <p>The defendants relied upon the plea of payment, and in support of it showed the following facts:</p> <p>Previously to the first Monday of March 1862, Carson was guardian of the minor heirs aforesaid, and on the 15th of ¡February 1862, he filled up and handed to the Sheriff a writ for the same cause of action as that in the present suit, returnable to Eall Term 1862, of Alexander Superior Court.</p> <p>On the 19th of July, the said officer executed said writ. Immediately, one of the defendants insisted on paying the principal, interest and cost, as demanded by the wilt, in currency, a considerable amount of which consisted of N. 0. Rank notes; but a greater amount was in Confederate currency. The officer doubted his authority to receive payment. Thereupon they called on an Attorney residing in Taylorsville, for his opinion whether the officer had authority to collect, and give a discharge for money demanded by the writ; lie instructed them that lie liad tbe power and authority to do so, and directed tbe officer to receive it, which be did in snob currency as above mentioned, and tbe only evidence as to tbe value of sucb currency at that time, was that it was received by some, and by others was refused. Tbe Sheriff, after receiving tbe amount of principal, interest and costs in tbe said currency, endorsed for bis return on writ, as follows: u July -19 1862, satisfied in full,” &c. Tbe Attorney in question bad usually prosecuted suits brought by Mr. Carson to collect tbe moneys of Ms wards. In doing this, tbe only service required of him was to take judgments. Tbe collections were actually made under tbe directions ot Mr. Carson, and tbe money received by him. In regard to tbe writ issued by Carson, February 1862, be at first declmed to prosecute it, but afterwards, and before tbe writ was issued, be undertook to attend to it, as to other suits of like nature. When tbe payment was made to tbe officer, tbe Attorney was present. Tbe initials of bis name made by himself, were endorsed on the writ, before tbe payment was made; but be bad no recollection that be bad ever before seen tbe writ. Tbe note was not present, but be forthwith received from tbe officer, and paid Mto tbe Clerk’s office, tbe currency received, and it remamed there uncalled for, as far as be knows or believes, for two years, when be withdrew a part of it for bis own use, and tbe remainder suffered tbe fate of all Confederate currency. Tbe Clerk mentioned to some of tbe parties interested, that those notes were thus deposited, but does not recollect when, or to whom.</p> <p>It was further shown m the case, that on tbe first Mqnday of March 1862, Mr. Carson procured tbe appointment of G-. Marshall, uncle of bis wards, to them guardianship, and at that time be endorsed over and assigned tbe said note, and all notes of bis wards, to said Marshall, and defivered them over to him. He never afterwards bad possession of any of them, and bad no longer tbe management of tbe suit brought on said note, or any right to collect it. Marshall was informed be had issued a writ for its collection, but it did not appear that be, Marshall, knew that any counsel bad been retained to prosecute it. At the time of the alleged payment, the said note was in the possession of Marshall, at bis residence, a considerable distance from the town of Taylorsville, and there was no proof tending to show when be received notice of the alleged payment.</p> <p>The counsel for plaintiff requested the Court to instruct the jury, that the evidence did not show that the Attorney was an attorney and agent of the plaintiff, with such authority and power as to ratify by bis direction or assent, the collection of the money demanded by the writ.</p> <p>The Court refused the instructions called for; but instructed the jury, that the collection and receipt of the notes and currency by the officer, under the instructions as set forth in the evidence, was a discharge of the note, and the defendants were entitled to then verdict.</p> <p>The plaintiff excepted; Verdict for the defendants; Rule, &c.; Judgment, and Appeal by the plaintiff.</p>

Debt upon a bond, tried before Logan, J., at tbe January Special Term 1870, of Mecklenburg- Court. Tbe defendant pleaded, General issue, Usury, and That tbe agreement between tbe principal in tbe bond and tbe plaintiff was a fraud upon himself as surety. Plaintiff introduced tbe bond as follows : $900.

Action, for an injunction to stay proceedings, tried by Tourgee, J., at Pali Term 1869, of Ohatham Court.

<p>Debt, trieábefore Glouü, J., at Fall Term 1869, of Bowah Court.</p> <p>The plaintiff declared upon a bond for money, in the ordinary form, dated January 31, 1859. The defendant relied upon the pleas of General issue, and Illegal consideration.</p> <p>Evidence was offered by the- defendants, to show that the bond was given in payment of the price of a slave, and that the hill of sale received by the defendant, J. W. Hall, contained a warranty that the slave was such for life.</p> <p>This was excluded by the Court, and the defendant excepted.</p> <p>Yerdict for the plaintiff; Bule, &c.; Judgment, and Appeal by the defendants.</p>

Action, tried before Cloud, I., at Eall Term 1869, of Bowan Court. The following is the case sent up from below: The plaintiff, sued for the hilling of a boar by the defendant. It was in evidence that plaintiff was the owner of an unmarked, white Chester boar; that about the 1st of Oot. 1868, the boar was missing, and has not been since seen by plaintiff.

' Motion to set aside an execution returnable to that Term of the court, made before Buxton, J., at Pall Term, 1889, of MONTGOMERY Court. Judgment in the case had been rendered at EaU Term, 1-862. A fieri facias was issued, and was returned, levied on land, to Pall Term, 1863.

Action, for an injunction, before Watts J., at Pali Term 1869, of Wake Court, upon a motion to vacate the order previously obtained.

Paetitioh of land, before Cloud, J., at Fall term 1869, of Rowah Court. The plaintiffs alleged that they were tenants in common ■with the defendant, of the land in question, and asked judgment for a partition.

Assault and Batteby, tried before Tour gee, J., at Eall Term 1869, of G-uileobd Court. The defendants (two) were father and son. The evidence showed that the son, J. M. Mooney, struck the prosecutor with a hammer, the father taking no other part than by words of encouragement to his son. . Eor the defence it was proposed to introduce the mother of J. M. Mooney, to testify in his behalf..

Larceny, tried before Watts, J., at Eall term 1869, of H AT.TEAX Court. The defence was an alibi, sought to he set up through two witnesses. TTis Honor instructed the jury that the burden of proof to show the guilt of the prisoner, was upon the State.

Bill in equity, before Mitchell, J., upon exceptions to a reportmade in the course of the cause, at Fall Term 1869, of Caldwell Court. An order for an account having been made, upon the report coming in the defendant filed exceptions, which on consideration, were sustained by the court, the report set aside, and the bill dismissed. Thereupon the plaintiff appealed.

Debt, tried before Cloud, J., at Eall Term 1869, Rowan court. The note upon which the action was brought was as follows: “ Six months after elate, with interest from date, we promise to pay James E. Kerr or order, twelve hundred and fifty dollars,, for value received, witness our hands and seals, Nov. 27 1860.” This was signed and sealed hy the defendant; and the plaintiff was endorsee and purchaser for value.

Assumpsit, tried before Logan, J., at January Special Term 1870, of Mecklenburg Court.

<p>A person, tendered as a witness to express an opinion whether the symptoms attending a diseased mule were of recent or of long standing, upon preliminary examination, stated that he was a physician of eleven years standing, and that although he had no particular knowledge of the, diseases of stock, yet from his books, observation and general knowledge of diseases of the human family, he could tell whether certain symptoms indicate that the disease is of recent or long standing ; and although he never saw a ease of glanders (unless the one in question were such) yet he was able to form an opinion whether the symptoms of the mule, indicated a disease of recent or of long standing : Held, that he was a competent witness for the purpose indicated.</p>

Aotior to set aside an execution and vacate a judgment ■for irregularity, tried before Logan, J., on demurrer, at Spring Term 1869 of Oajbaubtts Court. This proceeding began in April 1869, by a petition to the Judge of the Ninth District.

Action for an injunction, against opening a public road,, before Bussell, J., at Chambers, for Bobeson County, September 23d 1869, on .a motion to continue a previous order. The complaint had been filed in the office of the Clerk of Bobeson County, September 3d 1869.

<p>Pebjuby, tried before Tourgee, J., at Eall Term 1869, of Guudeobd Court.</p> <p>In tbe course of tbe trial, tbe State offered in evidence tbe books of tbe North Carolina Eailroad Company, at Thomasville station,' in order to show that certain cotton, in regard to which it was alleged that tbe perjury bad been •committed, bad been received by tbe defendant. It was ■shown that tbe entries were in tbe band' of one Lea, a former agent of tbe Company at that Station, and were in reference to tbe ordinary business transactions of tbe corporation to which they belong. Tbe death of Lea was not shown, but that be was hving a short time previously in tbe State of Missouri.</p> <p>Tbe defendant objected to then introduction. Tbe objection was overruled, and the defendant excepted.</p> <p>Verdict, Guilty, Eule for a new trial, &c.; Judgment, and Appeal.</p> <p>In order that entries in hooks, whether in the cowrse of the' ¡business, or against the interest of the party making them, shall he competent evidence, such party mnst be dead: Price v. Pari Torrington, Salk. 690; Doe v. Twrford, 3 Barn. Sa Ad. 890; Poole v. Dicas, 1 Bing. N. 0. 649; Welch v. Barrett, 15 Mass. 380 ; Brewster v. Doon, 2 Hill (N. Y.) <537; Moore v. Andrews, 5 Porter (Ala.) 107; Kennedy v. Pmrman, 1 Hay. 458; Higham v. Ridgeway 10 B. 109, •(Smith, L. O. 2d, 183); Whitemarsh v. Gifford, 8 Bam. & Cress. 556; Speers v. Morris, 9 Bing. 687; Meddleton v. Milton, 10 Bam. & Cress. 299; Peck v. Gilmer, 4 D. & B. 249.</p>

ACTION for money due by judgment, tried upon demurrer to the complaint, by Mitchell, J., at Eall Term 1869 of Burke Court.

Scire facias to enforce a judgment nisi, tried before Buxton, J., at the Special Term of Iredell Court, July 1869. At February Term 1868 of the County Court of Iredell county, the plaintiff recovered judgment against Avery and Tate; a fi. fa. tested of that term was issued to the defendant, who was Sheriff of Burke, and by him was levied on certain lands and returned.

Scire Eacias, tried upon demurrer, by Buxton, J., at July Special Term 1869, of Iredell Court.

<p>Lnterplea, in attachment levied on goods, tried before Buxton, J., at Fall Term 1869 of Cumberland Court.</p> <p>The following is the case sent up :</p> <p>The plaintiffs had attached on the 3rd Dec. 1866; the interpleader claimed the property by virtue of a bill of sale from Phillips, dated 19th Nov. 1866 ; the attaching creditors resisted the claim on two grounds: 1. That the bill of sale was fraudulent. 2. That if the bill of sale were not fraudulent, and Haywood had acquired a valid title under it, yet that he had, prior to 3d Dec. 1866, the date of the attachment, parted with his title to one Forney Jernigan by a valid sale and delivery of the goods.</p> <p>E. W. Hardie, late Sheriff of Cumberland, testified for the plaintiffs that: “While Sheriff of the county, on Saturday 1st Dec. 1866, having in my hands an attachment in favor of one Sowder against E. L. Phillips, I went to the store on Hay Street, in Fayetteville, lately occupied, by Phillips, for the purpose of making a levy. It was about 11 o’clock in the morning; the front door was closed; I entered at the back door, and found in the store Moses Haywood, Eomey Jernigan, Duncan McLaurin and Wetmore Holmes. On making known my business, Haywood said tome: “Yon can’t levy on these goods ; I home sold them to Forney Jernigan.” Jernigan said, ‘‘Yes, they are mine, I lucre bought them.” I replied, “I must levy, or home a hail bond.” Haywood, Jernigan and McLaurin then retired into the shed part of the store, had a consultation, and returned. Haywood inquired if I had any other papers against Phillips besides the Sowder attachment, and on my answering no, he said he would sign the bond.</p> <p>The parties were packing up the goods in boxes at the time I entered the store, and while I was there, the goods were being removed, Jernigan superintending the removal.</p> <p>On the night of the same Saturday I saw the same goods at-the auction store of John H. Cook. By this time the Devries attachment had been placed in my hands. I informed Cook of the fact, and placed the goods in charge of his son, on the Monday following, 3d Dec. 1866. I' endorsed the levy on the Devries attachment. After doing so, I met Haywood, who said to me: “I suppose you hwve levied on those goods.” I replied, “Yes, I am in a hurry noiv ; come to the Court House, and I will furnish you a replevy bond.” His answer was “I won’t replevy.” I remarked, “Then you will have to interplead.” He answered, “I can’t interplead ; I ha/ve sold the goods to. Jenvigan.” He did not tell me then that they were his goods, and I have no recollection that he did so at any time.”</p> <p>John H. Cook testified: “I rented a room of my auction store to Eorney Jernigan to place goods in, and on Saturday, 1st Dec. 1866, about noon, the goods were brought there on drays and taken in at the front door — these were the same goods afterwards levied on by Sheriff Hardie. That same clay, about sundown, while Jernigan and myself were in ‘the store, where the goods were, Haywood came, and .in his presence Jernigan stated that those were his goods, and he was going to take some of them home with him, and I did see him take off with him in his hands two or three pieces, a dress for his wife and a coat. Haywood and myself had hut little to say — Jernigan did most of the talking. He and Haywood went off together about dark. About an hour later Sheriff Hardie levied the Devries attachment.</p> <p>Duncan McLaurin-testified: That he had been clerk of Phillips for two months, when Haywood took possession of the goods under the bill of sale, and continued the witness .as clerk for himself. Eorney Jernigan and Wetmore Holmes were also employed as clerks for him along with witness. That a short time before the levy of these attachments, not exceeding a day or two, the witness was informed by Haywood and Jernigan, that Haywood had sold out the goods to Jernigan. That during this time Jernigan was busy disposing of the goods, and claiming them as his ■own, with the assent of Haywood. Both parties assisted in the packing of the goods and sending them off to the auction room, and both manifested an interest in them. That Haywood told him he had disposed of the goods to Jemi-gan. That Haywood paid the witness for services as clerk of the store.</p> <p>Evidence upon the second point. .</p> <p>Moses Haywood, the party interpleading, testifled: ‘‘The goods never were sold by me to Jernigan,- he never paid a cent for them.”</p> <p>The plaintiffs objected to the witness making this statement, and asked his Honor to rule it out; and upon his declining to do so, the plaintiff excepted.</p> <p>The witness resumed: “I have no recollection of ever telling Sheriff Hardie that the goods were Jernigan’s, and don’t know that I ever said so in the presence of McLaurin. I may have said so for the purpose of saving the goods; I reckon I might have said so ; and Jernigan might have said the same. If Jernigan sold any of his .goods as his own before they were levied on, it was contrary to my orders. I sent him as a clerk to engage a room at Mr. Cook’s auction store. The first day I took possession, I sold Jernigan six suits of cheap clothes, and those were the bundles he took off from Cook’s, and they were never paid for. If he took off other clothes, besides these, from Cook’s, I don’t know of it. I have no recollection of saying to Sheriff Hardie : UI can't int&rplead, I hcwe sold the goods to Jernigan.” I told him, on meeting him Monday morning, that they were my goods, and he replied “It is just as I expected.” I sent the goods to Cook’s because I got his room cheaper than that. Where they were. The Phillips store I had rented for the-balance of the year to Jackson and Pearce.</p> <p>Upon the second point in the case, that is, the alleged sale by Haywood to Jernigan, his Honor charged the jury:</p> <p>Whether a real sale or a sham sale was intended, is a question for the jury. If you shall find that it was a sham sale, then no property passed to Jernigan — as such a contrivance intended to deceive the Sheriff would not work a change of property, so as to render what really was the property of Haywood, subject to attachment for debts of' Phillips.</p> <p>The plaintiff excepted, and asked the following special instruction: That if the contract between Haywood was as stated in the testimony of McLaurin, Hardie and Cook, there was a sale of the goods to Jernigan, and the title passed to him.</p> <p>His Honor declined to give the instruction as askedj. but qualified it thus to the jury:</p> <p>If you shall find that a real sale was intended to Jerni-gan, and the contract between Haywood and Jernigan was as stated in the testimony of McLaurin, Hardie and Cook, there was a sale of the goods to Jernigan and the title passed to him. 'If you shall find that a real sale ivas intended., then every • thing which was necessary to he clone to make a sale was clone — and the plaintiffs are entitled to your verdict.</p> <p>The plaintiff excepted. Verdict for the party interpleading; Rule discharged, and Appeal by the plaintiff.</p> <p>cited McLean v. Douglass, 6 Ire. 233; Cameron v. Big Marcellus, 3 Jon. 83; Broom’s Maxims, ex dolo malo, Seo.; Blossom v. YanAm-ringe, Phil. Eq. 138; Broom’s Maxims, in i>ari dedicto, See.; Bird v. Benton, 2 Dev. 179; Sasser v. Jones, 3 Ire. Eq. 19; Jones v. Sasser, 1 D. & B. 402; West v. Tilglxman, 9 Ire. 163.</p> <p>The rule is not, that an estate is transferred, or property Changed, hut that a right is lost or forfeited so that a conit of justice will not aid in its enforcement.</p> <p>Massey v. Belleisle, 2 Ire. 176; Fesperman v. Parker, 10 Ire. 474; Bessent v. Harris, Phil. 542; Smith v. Sasser, 5 Jon. 391; Marshall v. Flinn, 4 Jon. 203; State v. Brantley, 63 N. 0. 519, 2 Pars. Oont. 500; Gainey v. Hays, 63 N. 0. 497.</p>

<p>A creditor oí the deceased had a right, under the former practice, to-come in and be made a party defendant, for the purpose of excepting to an admeasurement of dower, in the course of a petition by the widow.</p> <p>Arguendo: This is so still, under the act regulating Special proceedings.</p>

Assumpsit, tried before Pool, J., at Fall Term 1869, of Chowan Court. Tbe facts were: That in 1864, and up to tbe close of tbe late war, tbe defendant was an agent of tbe State to procure suppbes of provisions and clothing, for tbe use of its troops, from places east of tbe Obowan river, and tbe plaintiff was a subordinate agent,' under tbe defendant, for the same purpose.

Action for money, tried before Cloud, /., at Eall Term 1869, of Davidson Court.

Debt, tried before Logan, J., at January Special Term 1870, of Mecklenberg Court. The plaintiff declared npon a bond oí the denfendant’s for $1010, payable to tbe plaintiff, and dated January 2d 1865. The plaintiff offered to prove that said bond was given for the hire of a negro man belonging to his intestate, for the year 1865, and that his hire was worth $50. His Honor excluded the testimony.

Debt, tried before- Watts, J., at January Special Term 1870, of Wake Court. . The plaintiff declared upon a bond in the ordinary form, given by the defendants for purchases made at a sale by him as administrator, in March 1864, upon a credit of twelve months.

Covenant, tried before Jones, J., at Eall Term 1869, of Edgecombe Court. The plaintiff declared upon a bond in the usual form executed by the defendants “for the sum oí $179.00, it being for the hire of negroes,” &c. It was shown .by the plaintiff that nothing was said at the time of the hiring as to the currency in which the bond was to be paid; and he offered further to show the value of the slaves in that locality and for that year.

Debt, tried before Jones, J., at January Special Term 1870, of Edgecombe Court.

Motion by the defendant, to set asidelan alias execution, and also a Ten. Ex., made before Tourgee, J., at Spring Term 1869 of Chatham Court.

Motion to set aside a warrant of attachment, made before Thomas, J., at January Special Term 1870, of Craven Court.

<p>Dower, liearcl by Buxton, I., at July Special Term 1869, of NobesoN Court.</p> <p>Tbe proceedings bad commenced in tbe County Court of Nobeson at August Term 1856, by a petition on tbe part of tbe widow, to wbicb ber children were made parties defendants as beirs of Allen Lowery deceased, and service bad been accepted, and no defence made. Tbe writ of dower thereupon issued, and at February Term 1867 a report was made allotting dower, and no exception was ¿led by tbe defendants. At that Term one Goins and bis wife, filed a petition verified by affidavit, that Mrs. Goins was a daughter of tbe deceased, and bad not been made a party to tbe proceedings, and charging that tbe petitioner never bad been married to tbe deceased, and therefore was not entitled to dower; upon this an issue was made up, and being continued, was brought to trial at August Term 1867, and thereupon a verdict found, that tbe petitioner bad not been married to tbe deceased. Judgment was given “ accordingly,” and tbe petitioner appealed.</p> <p>At the above mentioned Term of the Superior Court, the petitioner moved that the report of the jury should he confirmed, and the defendants did not object; hut, at the- instance of the said Goins and wife, the Court refused to make an order of confirmation, and directed an issue, “whether Elizabeth Goins, wife of William Goins, is one of the heirs at law of said Allen Lowery, deceased,” to he submitted to a jury-</p> <p>The petitioner appealed.</p>

<p>Do wee, tried before Mitchell, J., at Fall Term 1869, of Bueke Court.</p> <p>The petition, which was ex pa/rte, in the names of the widow and heirs of William Waightstill Avery deceased, set forth that the deceased died in 1864, leaving a considerable estate in lands, which he bequeathed to his widow for life, &c.; that the will was duly proved in Burke County Court, and the widow has been duly appointed guardian of the heirs, &c.; also that the estate is found to he insolvent; the prayer was for dower, &c.</p> <p>The Judge dismissed the petition, on the ground that the widow had not dissented Rom the will in due time.</p> <p>The petitioners appealed.</p>

Order, made in the course of supplemental proceedings, (0. 0. P. Tit. xi, c. 2,) by Logan,at Chambers, Meck-lenburg Court, December 1869.

Attachment, tried by Watts, J., at December Special Term 1869, of Wake Court.

Motion to vacate an order of arrest, made before Logan, J., at January Special Term 1870, of Mecklenburg- Court. The affidavit upon which the order had been granted, after stating the cause of action, set forth that the defendant “ is about to leave the State.” The order was thereupon made, and the defendant arrested December — 1869.

Motion to dismiss a rule theretofore obtained,, made before Buxton, J., at Eall Term 1869 of Anson Court.

ActioN tried, upon demurrer by the defendant, by Watts, J., at Chambers, December 9th 1869, Johnston Court. The summons was returnable before the Clerk of the Court, and a warrant of attachment, sued out at the same time (because the defendant had removed part, and was about to remove other, of his property,) was returnable in the same way. The defendant demurred to the complaint, for want of jurisdiction. His Honor overruled the demurrer, and the defendant appealed. 1.

Larceny, tried before.Toargee, ./., at Fall Term 1869, of Chatham Court. The indictment described the article taken, as u Fifty pounds of flour, of the value of sixpence.” A special verdict was-found : viz: 1. That the defendant had stolen, &c., “ one sack of flour the property of,” &c. 2. That there was no evidence of its weight. 3. That the only evidence of its value, was an allegation of defendant given in evidence, that he paid $5 50 for it.

Debt, submitted, upon a case agreed, to Watts, J., at Fall Term 1869, of Grahville Court. The suit was brought upon a bond for $1,000 00, executed by the defendants to the plaintiff, March 3d 1863, upon a loan of Confederate treasury notes by the plaintiff to the defendant, Lyon. The pleas were, General Issue, Illegal consideration.

Larcenx, tried before Thomas, at Fall Term 1869 of Greene Court. Tbe prisoner was convicted. His counsel thereupon moved to arrest judgment, because the indictment charged the property in the thing stolen, to he in “John B. Dail and another, or others.” This motion was refused, and the defendant appealed.

Special proceedings, tried before Buxton, J., at Spring Term 1869 of Richmond Court.

Tboyeb for two mules, tried before Mitchell, .7., at Eall •Term, 1869, of Wilkes Court. The facts were, that in 1863, Bobert E. Hoke, then a Brigadier-G-eneral in the service of the Confederate States, commanding two regiments in Wilkes County, issued a parol order to the defendant, commanding a detachment of soldiers near the.plaintiff’s residence, to distrain, for the transportation service of such detachment, a wagon, and mules.

Assumpsit, tried before Tourgee, J., at Eall Term 1869 of Alamance Court. Tue facts were that on the 21st of March 1862, the plaintiff had delivered to the defendant, at Gibsonville, N. 0., eighteen barrels of whiskey, in good order, for the purpose of being transported to Goldsboro’. The doors of the cars in whicn they were placed, was nailed up, the keys being lost.

Motion to discharge an attachment, heard before Watts, J., at Eall Term 1869 of Northampton Court. The action had been begun on the 4th of August' 1869, returnable to Eall Term; and an affidavit for an attachment returnable before the Clerk, was made npon the 30th of the same month.

Motior to set aside a judgment, heard by Buxton, J., at July Special Term 1869 of Iredell Court. The question had been brought by appeal from the County Court of that county, in which at August Term 1867, an order had been made, upon the motion of the defendant, to-set aside a judgment in debt, taken by the plaintiff’s intestate against him, at August Term 1861.

<p>Debt, tried before Mitchell, at Fall Term 1869 of Bubke Court.</p> <p>The plaintiff declared upon a single bill executed to Mm by the defendants, W. F. McKesson, Charles McDowell, the intestate of the defendant N. W. Woodftn, and James McKesson, the intestate of the defendant W. F. McKesson as adm’r. The pleas were Payment and Set-off. On the trial the defendant McKesson, offered in evidence a book account alleged to be due to him by the plaintiff together with one Thomas S. Walton, as partners. This evidence was objected to by the plaintiff, and excluded by the court. The defendant excepted. Verdict for the plaintiff. Rule, &c.; Judgment, and Appeal by the defendants.</p>

<p>The charter of a Eailroad Company, granted in 1852, provided, that “ the said Eailroad and all engines, cars and machinery and all the works of said Company, together with all profits which shall accrue from the same, and all the property thereof of every description, shall be exempt from any public charge or tax whatsoever for the' term of fifteen years ; and thereafter the legislature may impose a tax not exceeding twenty-fire cents per annum on each share of the capital sioclc held by individuals, whenever the annual profits shall exceed eight per cent The annual profits had never exceeded eight per cent: Held, that the Legislature, in 1869, might, notwithstanding, levy, and authorize to be levied, an ad valorem tax not exceeding two-thirds of one per cent, upon the franchise, rolling stock and real estate of such Company.</p> <p>Arguendo : All contracts between the sovereign and its citizens,-as in bank and railroad charters, are made, subject to any change of circumstances that future events may develope, and to the permanent right and duty of the State to regulate the currency, and to preserve its own existence by equal taxation ;</p> <p>Eegulations of taxation in such charters, are rather rough estimates of what will be required, things remaining as they are, than contracts holding in all events; say, even after the disasters whicn the common fund liable to taxation, suffers by a great war.</p> <p>The theory that such regulations are contracts in the ordinary sense, has issued in refinements, devised in order to escape its results ; such as the sub-division of corporations, for taxing purposes, into franchise, stock, dividends, &c., — an exhaustion of the chartered restraints upon the power of taxation in one or more ofawhieh, is held not to affect that power over others.</p>

<p>Covenant, tried before Mitchell, J., at Spring Term 1869 of Bubke Court.</p> <p>Tbe action was brought upon the following note:</p> <p>$1,330 39. Twelve months after date, we, or either of us, promise to pay Robert Patton, Exr. of John Warlick, dec’d, the sum of thirteen hundred and thirty dollars and thirty nine cents, in good current bank notes on the banks of North or South Carolina, for value received, this the 31st of October 1864. .</p> <p>J. A. HUNT, [Seal.]</p> <p>Wm. E. MCKESSON, [Seal.]</p> <p>On the day that the note fell due an agent of the defendants, meeting with the plaintiff, made known to him that he was sent to pay the above note, in South Carolina bank bills; and at the time, he had such notes in his possession. The plaintiff refused then to accept them, but said, if his counsel advised him to do so, he would. Nothing further, then or afterwards, was said or done in regard to payment of the note; no tender or payment of any bank notes or money in pursuance of such tender, was made in Court.</p> <p>The Court instructed the jury that this offer of payment by defendant’s agent, did not bar the plaintiff’s recovery ; that the plaintiff had no right to claim the value of $1,330 39 in the equivalent of specie, but the value of that numerical amount of notes in genuine, current bank notes on the banks of North or South Carolina in specie, at the day when the note fell due, and that in their verdict it would be proper to add the premium on gold at that time, and render their verdict in legal tender, with lawful interest.</p> <p>The counsel for the defendants excepted to the charge:</p> <p>1. The bank bills tendered by the defendant’s agent to the plaintiff were specific articles, and being offered as such when the note fell due, were a full discharge of the covenant; and that the plaintiff thereafter could not recover principal of interest thereon.</p> <p>2. The Court should have instructed the jury to find that the defendants had complied with their agreement to pay the note declared on, and that the plaintiff should not have recovered the value of the bills specified in said note, in gold, with the premium in Federal currency added, with interest ; and that the tender being made as stipulated, it was not necessary that the bank-bills, after being tendered, .should be paid into Court.</p> <p>Verdict for the plaintiff, for $663 70; Rule for a new-trial ; Rule discharged ; Judgment, and Appeal.</p> <p>cited 2 Pars. on Contracts, 165, note 3; 2 Kent 665; Fort v. Bank of Gape Fear, Phil. 417; Lacky v. Miller, Phil. 26.</p>

. Case-agreed, decided by Watts, J., at Fall Terra 1869 of Warren Court. Tbe claim of tbe plaintiff was founded upon a note given to him by tbe defendant, partly in satisfaction of another note, and partly for board. The former note had been made by the defendant to one Christmas, for money won at cards; and it had been endorsed to the plaintiff by Christmas, for value, and without notice of its consideration; and at the time the new note was given, he had no such notice.

Action, with claim and delivery, tried before Watts, J., .at Fall Term 1869 of Halifax Court.

Debt upou au administration bond, tried before Logan, J., at Fall Term 1969 of Cabarrus Court. Held: owned, preserved or enjoyed for or by an alien enemy; or in or to which any alien enemy had, and when, since that time, any right, title or interest, either directly or indirectly ? 2.

Action, tried before Watts, at Fall Term 1869 of Granvile Court.

Order, before Watts, J., upon appeal from the Clerk, at Chambers, March 22d 1869, Granville Court. His Honor had affirmed an order, made by the Clerk upon application by the plaintiff, that the defendant Sneed, give better security upon his bond as administrator. The defendant objected, for want of jurisdiction in the Clerk, &c. The facts are the same as in the case between the same parties, ante 176.

Exceptions to an account in equity, before Logan, J7., at Fall Term 1869 of Lincoln Court.

Petition by administrators to sell lands, &c., before Logan, J., at Spring Term 1869 of Meckxekbubg- Court.

<p>Case agreed in regard to a question in difference between the parties, submitted to Towrgee, J., July 1st' 1869, at Chambers, Chatham Court.</p> <p>The parties (with others who are admitted to be insolvent) were, in person or as representatives, sureties upon one or more of the four official bonds given by the Clerk and Master for Chatham County, during the years 1855, 1856, 1857 and 1858, and, some of them having been compelled to pay money on account of a default by their principal, a question arose, whether contribution could be enforced against the others, and if so, in what proportion. The principal, who is insolvent, was appointed Clerk and Master at Eall Term 1847, and was never1 formally re-appointed, but continued to act as such from that time until 1859. But the bonds above specified were regularly approved by the Judges presiding at the respective Terms when they were given; and among others, by Judge Caldwell, who presided at Eall Term 1855, to-wit: at the close of eight- years from the time of the original appointment.</p> <p>In 1857, a large sum of money came, in due course of law, into the hands of the said Clerk and Master, and a default having been committed by him, in not paying the same to the parties entitled under an order of the Court of Equity, at Eall Term 1858 suit was brought upon the bond of 1858, and thereby the above named James Moore, and others were compelled to pay, in equal proportions, the sum of $4,084.00, at Spring Term 1869 of Chatham Court.</p> <p>The plaintiff claimed that he had been compelled to pay more than, upon a due account, would appear that he should, as betwixt himself and the other parties above; and that now he was entitled to contribution from them.</p> <p>A demand upon the co-sureties was admitted, and all preliminary questions of fact, or of law, arising upon the above statement, the determination of which, might be necessary to a decision of the main question, were submitted to his Honor for determination.</p> <p>His Honor thereupon decided that the' acceptance of the bond of 1855, was equivalent to a re-appointment for the next term, or was conclusive proof of such re-appointment; and so, that the plaintiff was entitled to contribution from the sureties to the various bonds given during that term: the ratio between the parties, being determined by the aggregate of the penalties of all the bonds executed by them respectively, during that term, &c.</p> <p>The defendants appealed.</p> <p>1. There is no record, of an appointment of the 0. & M. in 1855, and this should be matter of record: See Bev. Code, cc. 19 and 82.</p> <p>2. The act requires an appointment, and also a qualifier Mon; reneioing a bond may be part of the latter, but does not' supply the place of the former.</p> <p>3. Bev. Code c. 77, s. 4, is not intended to make officers who hold over, such, de jv/re. Holloivéll v. Lang don, 7 Jon. 49, was well argued and was decided after the passage of that act. That case cites Chairman, &c. v. Daniel, 6 Jon. 444, and distinguishes the ease of a C. & M., from that of a Superintendent of Common Schools.</p> <p>4. Supposing, that these bonds are cumulative as regards creditors, they are not so as regards the respective sureties upon them.</p> <p>1. Bev. Code c. 77, s. 4, constitutes officers holding over, officers de jure) they were such defacto, without its aid. The case in 7 Jon. 49, shows upon its face that the attention of the Court was not called to that Statute.</p> <p>2. The acceptance of the bond by Judge Caldwell, at Eall Term 1855, was virtually a re-appointment.</p> <p>3. As to contribution, and ratio, Bell v. Jasper, 2 Ire. Eq. 597.</p>

<p>Exception to an account, tried by Tour gee, J., at Fall' Term 1869 of Chatham Court.</p> <p>The plaintiffs, at Spring Term 1867, filed a petition against, the defendants, for an account and settlement of the estate of Mary Taylor, deceased. The defendants answered separately, and very fully; and an account was taken. The plaintiffs excepted to part of the account, because the commissioner had allowed the defendants certain Confederate money received and invested by them, and subsequently lost by the results of the war.</p> <p>The material facts upon which this question turned, are to he found in the opinion.</p> <p>His Honor allowed the exception, and the defendants appealed.</p>

Debt upon bond, tried before Pool, J., at Fall Term 1869 of Bertie Court. Tbe plaintiff declared upon a bond for money, payable by tbe defendants to “ Mills E. G. Barrett, agent of William E. Savage.” Tbe defendants pleaded tbe General Issue, and moved for a non-suit, on tbe ground of variance. In obedience to an intimation from bis Honor, the plaintiff submitted to a non-suit, and appealed. A principal may sue upon a bond in wbicb bis name is disclosed as sucli.

Motion to vacate an injunction, beard by Watts, J.,, January 19tb 1870, at Chambers, Halifax Court. Tbe action in wbicb tbe injunction bad been ordered, was based upon tbe following facts: In 1859 John Devereux sold certain lands to Gavin H. Clark, wbo executed a mortgage to secure tbe price, thereby empowering Devereux, in default of payment of tbe price, to sell tbe lands, «See.

CONTEMPT of court by an attorney, adjudged by Jones, J., at Fall Term 1869 of Edgecombe Court. Held: In re Wallace. The case of Brounsall represents the opinion of all the Judges of England in 1778, while that of Wallace is the judgment of the highest Oourt in England in 1866. The law in both is the same, and is now and ever has been the law of this State. 12..

Action for money, tried by Pool, J., at Eall Term 1861 of Perquimans Court. The plaintiff, under a contract with the county, hacL built a float bridge, which had been accepted; his claim had also been audited, an order upon the Treasurer given therefor, ■and partial payments thereon made.

Motion to vacate an injunction, made before Watts, J., January 18 1870, at Chambers, Halifax Court. The facts were as in the case, ante, 155.

MOTION to quash a summons and. warrant of attachment for irregularity, made before Watts, J., at Fall Term 1869 of Wake Court. The Summons issued August 16th 1869, returnable before Judge of Superior Court in term time; Returned executed on same day; Complaint filed with summons; Affidavit that defendant is anon-resident.

Assumpsit, tried before Logan, J., at January Special Term 1870 of Mboklerburg Court. The cause of action was, the loss by fire of nineteen bales of cotton belonging to the plaintiffs, whilst being transported by the defendant in 1866.

Actiok for the possession of land, tried before Hmry, J.,. at Spring Term 1870 of Buncombe Court. The plaintiff was assignee in bankruptcy of Eobert H. Chapman, who had been adjudicated a bankrupt in December 1868; and the defendant was trustee for the purpose of paying certain debts of said Chapman, under a deed of conveyance from him, dated February 8th 1867.

Injunction, before Tourgee, J., November 27th. 1889, at Chambers, Rookingjia'm: Court. An order of restraint had been made'in the action by 'Watts, J., October 5th 1889, and the matter came before Judge Tourgee, upon a motion to vacate, made after due notice &c. The plaintiffs were tax payers, who sued for themselves and all other tax payers of the county ofRockingham, and the defendants were the commissioners of that county.

<p>The defendant, by a decree in tbe Supreme Court, bad recovered of tbe plaintiffs, a sum of money ; whilst tbe execution was in tbe bands of tbe sheriff, tbe plaintiffs recovered from tbe defendant, by judgments before a magistrate, a like amount, — being for items in tbeir account not allowed in tbe case in tbe Supreme Court; these latter judgments were docketed, and executions were taken out upon them and returned nulla bona ; tbe plaintiffs then asked for an order to have tbe amount of the decree in favor of tbe defendant applied to their judgments, (0. O. P., s. 26f): Held, that they were entitled to such rebel</p> <p>Objections, — that tbe judgments were obtained subsequently to tbe decree, and, — that tbe latter was rendered in Equity — as also, in a Supreme Court, are not material.</p>

Forgery, tried before Cannon, I;, at Fall Term 1869 of Botcombe Court. The 'defendant had brought suit against his wife, M. L. Lytle, for divorce, and in the course of such suit had given as a prosecution bond, the instrument for the forgery of which he was indicted. The points upon which the decision of the case turns, render it necessary to state only that the indictment contained two counts, and charged that the defendant: 1.

Trover, tried before Mitchell, at Eall term 1869, of I REBELE Court.

Petition for a Recordari, heard by Waits, J., (April 29th 1869,) at Chambers, Granville Court. ' The petition (filed March 6th 1869) alleged that a warrant against the petitioner was returned before Justices Paschal! and Satterwhite of Granville county, on the 10th of February 1869; that the same was dismissed by them for want of jurisdiction; that on the 14th, in his absence, and without his knowledge, the matter was reconsidered by Justices Satterwhite and Cross, and…

Assumpsit, tried before Cloud J., at Eall term 1869 of Eorsyth Court. The Pleas were, General issue, Failure of consideration, Illegality of consideration. The plaintiff declared upon two notes given to him by the defendants in February 1865, for $1,565.00. payable in gold, or its equivalent.

Action for a legacy, tried before Tourgee, J., at Eall Term 1869 of Chatham Court. The facts were that one James 0.

<p>A prominent feature in that Felonious mto¡! which distinguishes Robbery or Stealing from Forcible Trespass, is, an inieni to evade the law, as, ex. gr. by concealing from the owner of the thing taken, the person who took it, i. e., the person who might he sued, or, might he indicted-, such, are the familiar instances of taking goods &c., by persons in masks, or, with faces blacked, or, on the highway.</p> <p>Artifice in getting possession of the thing, is to be distinguished from artifice in concealing the faxl that the taker has it in possession : It is the latter that shows a felonious intent.</p> <p>Cases in which persons conceded “shawls” &c., which they had previously found, are excepted from the general rule, because of the temptation to which they were subjected by circumstances rarely occurring.</p> <p>Where the maker of a note who had complained of the manner in ¶ hick he had been treated in the transaction in which he had given it, went to the holder, and after proposing to pay it in a certain way which was refused, asked to see it, upon one pretext or another, and upon having it delivered to Mm by the holder, kept possession of it, saying “ you wont get it again and upon a struggle ensuing, snatched up an axe, retreated to his horse, and then rode off, adding “ Tom (the holder’s son, and a surety to the note) sent me word to get this note as I could:” Held, to be no case of either Robbery or Larceny.</p> <p>Per Rodman, I., (Dissenting.) In the case of the maker of the note above stated, there is no error in the instructions to a jury : that if they should find that the defendant went to the holder with a felonious purpose, to get possession of it, and resorted to a fraudulent trick, to effect that purpose, he is guilty of larceny.</p> <p>An open manner of taking, although evidence of Forcible Trespass only, is yet not proof of it, but may consist with larceny ; the distinction is, that in the latter case, there must be, an asportation, and an intent to deprive the owner of Ms property with a view to some advantage to the taker.</p>

, at Fall Term 1870 of Northampton Court. Tbe issues bad been sent for trial bom tbis court. No statement of tbe facts is necessary.

<p>Testator died in 1869, leaving a will, made in 1858, by which he directed “all my negroes, July,” &c., (naming- them — seven) “to be removed and settled in some free State”; and to meet the expenses of removal, bequeathed to his executors $800, and in same clause provided: “Should there be any balance of the trust fund herein created, remaining, after paying the expenses of the removal of my slaves, as aforesaid,</p> <p>. then to pay over such balance to my said slaves, to be equally divided among them”. Two of the slaves died, unmarried and withoút issue, before the testator: Held,</p> <p>1. Notwithstanding the slaves were emancipated in a way other than that anticipated by the testator, and 'were not compelled to remove, they are entitled to the legacy.</p> <p>2. The legacy being to the individuals of the class nominalim, and not to the class as such, the shares of the two who died before the testator, did not survive to the others, but lapsed.</p>

Motion, to set one judgment off against another, heard by Cloud, J., at Fall Term 1869 of Bowan Court.

Action for money, tried before Mitchell, J., at Eall Term 1869 of Burke Court. The complaint set forth as the ground of action, a note, of which the following is a copy:— $4,000. Two years after date we promise to pay McKesson & Hunt four thousand dollars for that portion of the McDowell land we have rented; the same to be paid in the current funds of the country when due; this 14th of November 1863.

Petition by an administrator to sell lands, &c., heard by Hemy, J., at Pali Term 1869 of Buncombe Court. The intestate died before 1866, and the defendants, who were minors, and his heirs, claimed that they were entitled to a Homestead in the lands to be sold, under the ¡Constitution. His Honor gave judgment according to such claim, and the petitioner appealed.

Assumpsit, for goods sold and delivered, tried before Watts,at Fall Term 1869 of Halifax: Court. Judgment bad been, taken, by default against tbe defendant, and upon tbe inquiry by tbe jury as to tbe damages, tbe defendant offered to prove that none of tbe goods charged bad ever been delivered. Tbe plaintiffs excepted.

Assumpsit, tried before Henry, J., at December Special Term 1869 of Buncombe Court. Tbe facts appear sufficiently in tbe Opinion of tbe Court. There being a dispute as to wbattbe parties meant by tbe yerbal contract between tbem, as to tbe expression of wbicb there was no dispute; His Honor left it to tbe jury to say what that meaning was. Verdict for tbe defendant, &c., and appeal by tbe plaintiff.

Ejectment, for 100 acres of land, tried before Heivry, J., Spring Terra 1869 of Buncombe Court. The plaintiff made title by a grant from the State to one Williams, describing the land, and referring to an entry- of the same by Gabriel Eagsdale. The defendant claimed under an older State-grant, to one Blount.

■ Ejectment, tried before Logan, J., at Fall Term 1869 of Cabarrus Court. Tbe lessor of tbe plaintiff claimed under a deed to himself, executed November 6th 1852, by one W. E. Taylor.

Debt, tried before Waits, J-., at Fall Term 1869 of Gran-ville Court. Tbe suit was upou a promissory note, signed “ Dalby & Bullock,” wbicb was the name of a firm in which the defendant and one John D. Bullock, were partners.

INJUNCTION, before Watts, J., upon a motion to vacate, at Eall Term 1869 of Wake Court. The action sought an injunction, &c., against a judgment -and execution ; and alleged, 1. That the plaintiff and one High had executed a note payable to the defendant Gulick, as Cashier, &c., in the character of sureties for one Hutchings. 2.

INDICTMENT, for an milcmful fence, tried before Cannon, J., at Eall Term 1869, of Ashe Court. No other statement is required, than is to be found in the opinion. Verdict, Guilty; Eule &c.; Judgment and Appeal.

Assumpsit, tried before Logan, J., at Eall term 1869, of Cleveland Court.

Assumpsit, tried before Cloud, J., at Fall Term 1869 of ÉOWAN Court. Upon the trial, the plaintiff was introduced and testified, without objection, as to a conversation between himself and the testator in regard to the cause of action; upon his cross-examination he was asked if he were not plaintiff, and if Isaac T. Avery, the testator of the defendant, were not dead.

<p>The plaintiff in a suit is (byO. C.P.,g 343) incompetent to prove that the intestate of the defendant actually signed a particular paper, although he is competent to prove his hcmd-writing.</p> <p>What was once said by the plaintiff to the administrator, in relation to acts or words of the deceased, (introduced to get the benefit of admissions, deducible from a failure to deny, by the administrator,) when such acts or words were not within the personal knowledge of the administrator, — is also incompetent.</p>

Assault and Battery, tried before Jones, J., at Pall “Term 1869, of Hyde Court. The only statement necessary is to be found in the opinion. Yerdict, guilty;. Bule, &c. Judgment and appeal.

<p>Teoyee, for a horse, tried before Tourgee, J., -at Fall Term 1869, of Bandolph Court.</p> <p>The horse had been taken from the owner, a private citizen of Bandolph county, about the 2nd of May 1865 ; and, upon the 26th of July thereafter was purchased, at a public Government sale of horses in Baleigh by one A. W. Garoutte, A. Q. M. in the U. S. Army. It was at that time branded, as the property of the United States, and a bill of sale was given by Garoutte. The defendant claimed under the purchaser at this sale.</p> <p>The defendant asked the Court to instruct the jury, that the property in the animal was changed by the formal sale, under the authority of the United States.</p> <p>His Honor declined to do so.</p> <p>Under the instructions of the Court, the jury returned a verdict for the plaintiff, &c., and the defendant appealed.</p>

<p>Courts will not readily decide an answer to be “frivolous”: One by which, it is intended to raise a serious question, ex. gr., the effect of an endorsement by three out of four executors, of a note payable to their testator, is not frivolous.</p> <p>Perhaps, no notice of a motion is required, where cases come on regularly for trial at a term of the Court.</p>

Ejectment, tried before Buxton, J., at Fall Term 1869, of Montgomery Court. The plaintiff claimed under a chain of title, beginning with a grqut from tbe State in 1825. In order to show title out of the plaintiff, the defendant offered in evidence, an abstract of a grant from the State, in the following terms: “ Sampson Williams 300 acres, Anson, on Mountain Creek, beginning at a pine [then tracing the boundaries,] May 24th 1773.

Action, before Watts, J., upon a motion to vacate an injunction, at December Special Term 1869 of Wake Court. The facts were, that a writ had been issued by the defendant against the plaintiff, upon a note for $750, given for the price of a steam engine, payable in Confederate money, and dated March1864. The writ was executed, and was returnable to Spring Term 1865 of Johnston Superior Court.

Action, tried before Logcm, J., at Eall Term 1869 of Cabarrus Court. The action was brought for damages, for the loss of a horse, which had been lent by the plaintiff to the defendant, to ride to one Cline’s and return the next day — but which was ridden a mile and a half-further than Cline’s, and in a different direction, and which died during its absence, on the third day after leaving home.

Motion to vacate an injunction, made before Cloud, December 18 1869 at Chambers, Yadkin Court.

AotioN, before Henry, J., upon exceptions to an award therein, at December Special Term 1869 of Buncombe Court. The plaintiffs sought an injunction against a writ of possession for land, which the defendant was suing out under a judgment in ejectment. After the coming in of the answer, the cause was referred to two gentlemen, for settlement, with a provision that them award should be a rule of Court.

Assumpsit, tried before Cloud, J., at Fall Term 1869 of Eowan Court. The plaintiff declared upon a special contract for the price of a steam engine, sold by it to the defendant in 1865. There was conflicting evidence whether the price was agreed upon, or was left undetermined; also* whether or not the engine was valuable or worthless.

Eape, tried before Mitchell, J., at Fall Term 1869 of Burke Court. The prisoner was a colored man, and among the preliminary questions put to persons who were offered as jurors, lie proposed to enquire, whether they believed that they could as jurors, do equal and impartial justice between the State and a colored man. Upon objection by the Solicitor, the Court excluded the question.

Ejectment, tried before French, J., at Spring Term 1861 of the Superior Court of Ibedell. The plaintiff made title through a paper-writing, purporting to he the will of one John McConnell, which had been admitted to probate at February Term 1810, of the Court of Pleas and Quarter Sessions of Iredell County. The entry of probate, upon the record oí that term, is : “ Tuesday February 20th 1810; Present, James Crawford,.

Debt, tried before Tourgee, at Fall Term 1869 of Alamaatce Court. The plaintiff declared upon a bond executed by the defendant, as surety for one John A. Mebane.

MotioN to vacate an injunction, &c., before Henry, J., at Spring Term 1869 of Madison Court.

<p>Motion to dismiss a suit, beard by Watts, J., at Spring Term 1869, of G-banville Court.</p> <p>Tbe facts, appear in tbe opinion.</p> <p>His Honor refused tbe order applied for, and tbe defendant appealed.</p>

<p>"Whether an aceonnt in the handwriting of - the party charged, under a. heading in the same handwriting, showing that it -was an account of one partner’s indebtedness to the firm, entered upon the partnership-books; be a signed account, -within the statute heretofore prescribing' the degrees of deceased person’s debts, Quaere ? — but at all events it is no .settled account showing the partner’s indebtedness to his co-partner, but is merely an item in the general settlement of their dealings in that connexion.</p> <p>An administrator, under our former system, had no right to retain a. debt of lower dignity within the nine months given him to plead, upon the ground that he had no notice of debts of higher dignity.</p>

<p>A conveyance in regular form, executed in 1859, with a memorandum under seal annexed, stating that it was made in substitution for a previous deed between the ¡same parties for the same land, executed in 1854, and lost, — -will, notwithstanding such memorandum, pass -whatever estate the bargainor may have in such land in 1859.</p> <p>(An injunction against the judgment at law in this controversy. [See Phil. 484.] dissolved, upon the bill and answer.)</p>

Motion to discharge a prisoner, made before Watts, J., at Eall Term 1869, of Wake Court. The prisoner had been indicted at the same term for Murder.

Motion, to vacate an injunction, heard by Thomas, J., at Eall Term 1869, of Onslow Court. The facts are stated in the opinion. His Honor ordered the injunction to be vacated, and the plaintiff appealed.

Bill in Equity, filed in 1867, before Cloutl, upon a motion to refer, at Eall Term 1869 of Bowan Court. Tbe point involved is one of practice, and requires no further statement of facts than appears in tbe opinion. His Honor ordered tbe issues to be referred, and tbe defendant appealed.

Issues, from the Supreme Court, tried before Watts, J., at January Special Term 1870 of Wake Court. It is the same case that is reported, upon a former trial of it, in 63 N. O. 656, as Peebles v. Peebles.

Forcible-Trespass, tried before Watts, J., at Eall Term 1869 of JobrstoN Court. The facts were, that Creech was tenant in common of a bale of cotton, with Hodges and Sanders;’that the two latter had authorized the defendant to take it into his possession : it being before in the possession of Hodges.

Action for money, tried before Jlewry, at December Special Term 1869 of Buncombe Court.

Assumpsit, tried before Cloud, J., at Fall Term 1869 of Wilkes Superior Court. The plaintiff declared as endorsee (secondj of a note for $1175.50 made by the defendant, June 18th 1862, at one day after date “to be paid in current notes of the State of North Carolina.” The defendant objected that he could not maintain an action upon it in his own name. His Honor was of a different opinion. Verdict and Judgment for the plaintiff, and Appeal by the defendant.

Case, tried before Buxton, .7., at July Special Term 1870 of Ibedell Court. Tbe action had been brought in 1860, to recover damages for the loss of a slave, whilst in the employment of the defendant, in 1859, under a contract of hire as a section-hand. The slave, with others, had been placed by the Company, for a temporary purpose, under the control of a contractor, who was building a bridge for it. The Section-Master accompanied, and remained in charge of them.

Action, tried upon demurrer to the complaint, hj Mitchell, J., at Eall Term 1809 of Bueke Court. The facts are stated in the opinion. The judgment asked, was, that it might be declared that the deed in question was procured by fraud and circumvention; that it should be surrendered for cancellation, and that it be ordered that the title to the land should be held subject to the trusts of the original contract of sale.

Bill in Equity to impeach a former decree, heard by Mitchell, J., upon pleadings and proofs, at Fall Term 1869 of Burke Court. The case is the same with that reported, upon an interlocutory point, in Phillips’ Equity, p. 270. A principal question between the parties, was, whether the decree in the former suit (Win. Eq. 44) so far as it charged the present plaintiff's with certain Confederate money received by them officially, should stand.

Claim against the State, decided by the Court, at June Term 1869, and ordered to be reported to the General Assembly, for its action: (Constitution of 1868, Art. IV., s. 11.) The claimant filed his complaint in this Court at January Term. 1869, setting forth a claim against the State, for articles delivered to the “Insane Asylum,” at the dates, and for the prices specified below, the latter being “in gold coin ”: 1864.

Case, tried before Bussell, J., at December Special Term 1869, of New Hanoyeb Court. Tlie plantiffs sought to recover damages from the defendant for the negligence of its servants in managing the Steamboat, “ Gov. Worth,” whereby the barn of the plaintiffs, and the machinery therein were destroyed by fire communicated by sparks from the smoke-stack of said Steamboat, while navigating the Cape Fear Biver in April, 1867.

Proceedings under the acts for the relief of Landlords, before Bussell, J., upon appeal, at Spring Term 1870, of of Bobeson Court. The defendant was tenant of a house, &c., under a lease by one Griffin, who died in November, 1865, leaving a will, proved in common form at November term 1865 of Eobeson County Court, by which he devised his lands to his widow. No executor being named in the will, administration cam testamento annexo was granted to the plaintiff.

<p>Debt, tried, before Watts, J., at December Special Term 1869 of Wake Court.</p> <p>Tbe plaintiff declared upon two bonds executed by tlie •defendant July 27th, 1860, for $75.00 each, payable severally 1st January, 1861, and 1st January, 1862, to the plaintiff ‘‘for the hire of a boy.” Eor the defendant evidence was given tending to show that the boy, free colored and nineteen years of age, had at May Term, 1860, of Wake County Court, been bound as an apprentice during his minority, to the plaintiff; that at the date of the notes the plaintiff was upon the eve of removing from the State, and that the notes were given for the hire of the boy for the rest of the year 1860 and for 1861; also that the notes were in fact given for the assignment of the full unexpired term of the apprenticeship. His Honor instructed the jury that if the •consideration of the notes was the assignment of the full unexpired term of the apprentice, the plaintiff could not recover; but if it was not such assignment, but only a hiring of the apprentice for 1860 and 1861, the plaintiff would be •entitled to their verdict.</p> <p>Verdict and judgment for the plaintiff; appeal by the defendant.</p> <p>The assignment or transfer of an apprentice, or his services, is inconsistent with the nature of the trust, and against the policy of the law. Bevised Code, chap. 5. Musgrove v. Korney a,y, 7 Jon. 71; Allison, et al. v. Norwood, Bus. 414; Goodbred v. Wells, 2 D. & B. 476.</p> <p>It is contra bonos mores, and against the policy of the law, for a master to Imre out an apprentice; and a contract founded upon such consideration, will not be supported: Hally. Gardner, 1 Mass., 296; Ayer y. Chase, 19 Pick.,' 556; Graham y. Kinder, 11 B. Mun. (Ky.) 62; Huff man v. Bout, 2 Met. (Ky.) 50. See also, Davis y. Cdburnt 8 Mass. 172; Stewart v. Bicketts, 2 Humph. 151; Tucker y. Magee, 18 Ala. 99.</p> <p>The case of FutreTl y. Vann, 8 Ire. 402, relied on by plaintiff does not sustain his case, as it turned upon a promise made after the original contract was rescinded, upon sufficient consideration, to-wit: the allowance of a certarn, credit, &c.</p> <p>At any rate it was a promise to pay for past services. See Turner y. Vaughn, 2 Wilson 339.</p>

Debt, tried before Buxton,at Spring Term 1870, of Moetgomeey Court. Three eases depending upon the same principle of law were heard at the same time, between parties substantially the same, one L. E. Russell being plaintiff in the third suit. The defendants in each, were Jeremiah Adderton, Thomas Stokes and John P. Mabry, who, with J. M. Crump, as principals, and two others as sureties, had executed three notes for $1,400 each, payable to the plaintiffs.

Ejectment, tried before Jones, J., at Spring Term 1870, of Hyde Court.

MotioN, by a purchaser of the land, to be allowed to intervene in proceedings for dower, heard by Jones, J., at ^Spring Term 1870, of Pitt Court. The plaintiff had made the heirs parties, alleging that the deceased had died seized, and in possession. They answered setting up a sale of the lands by the deceased to one Gray, as trustee to pay debts, and that alter his death,- the trustee .had resold them to James Whitehurst.

MOTION to rescind a previous order, made before Buxton, ,7., at. Spring Term 1870 of Union Court.

Motion, to alter an award as to certain costs, made before ■Tourgee,./., at Fall Term 1868, of Randolph Oourt.

Civil action for possession of land and for damages, tried before Cloud, J., at Spring Term 1870, of Eowan Court. The plaintiff claimed title under a deed by one Gibson, dated 1863, and the latter, under a deed made in 1862 to him as trustee to pay debts, by the defendant. The defendant’s title was as husband of a wife he had married in 1831, -and who died in 1861, having had issue born alive, and capable of inheriting.

EjegtmeNT, tried before Hervry, /., at Spring Term 1870 ■of Buthereord Court. The question was as to the true boundary line between the lands of the plaintiff and defendant, and also as to the effect of a possession by the latter under the circumstances given below. The defendant was in possession of a part of the land known as u the Smart Grant,” and the plaintiff owned a tract adjoining that grant, and calling for the line of that grant as its western boundary.

Assumpsit, tried before Logan, J., at Spring Term 1870,, of Cleveland Court. The case is'stated in the Opinion. Verdict and judgment for the plaintiff. The defendant appealed.

Civil ACTION for money, tried before Buxton, J., at Spring Term 1870, of Cumberland Court. The case is stated in the Opinion. Verdict for the defendant, and Judgment accordingly. Appeal by the plaintiff.

Civil action, for the recovery of distributive shares in a fund of which it was alleged that one Thomas Pool had died intestate, argued, upon demurrer as to part of it, before Pool, J., at Fall Term 1869, of Pasquotank. Court.

Ejectment, tried before Buxton, J., at Spring Term 1870 of Moore Court. The facts appear in the Opinion. Verdict, &c., for the defendant; and the plaintiff appealed.

Exceptions, to a report in Equity, tried before Buxton, J., at July Special Term 1869, of Bobeson Court. The plaintiff had brought au action of Trespass, Q O. E., against the defendants, for injury to certain turpentine lands, and in order to preserve the property during the pending of such suit, had also obtained an injunction against them.

<p>Motion, to strike out the name of one of the plaintiffs,, made before Buxton, J., at Spring Term 1870, of Cumberland Court.</p> <p>The facts appear in the Opinion.</p> <p>His Honor refused to strike out, and the plaintiff Pette-way appealed.</p>

Injunction, heard upon motion to dissolve, before Cloiid, ■J., at Spring Term 1870 of Eowan Court. The plaintiff was indebted to the defendant, as surety for one Long. The latter had taken out proceedings against his debtors before a magistrate, and had obtained'judgment and issued an execution, which was levied upon personal property of Long sufficient to satisfy it. Whilst this levy existed, a conversation and transaction took place between Sprague and Long.

Injunction, granted by Russell, J., at Spring Term 1870, of Bobeson Court. No statement of facts is required. The controversy is the same which appears ante 72. The defendants appealed.

<p>Petition (filed 1868) to recover damages for an injury done by a mill dam to lands of tbe petitioner, tried before Cloud, J., at Spring Term 1870, of Stokes Court.</p> <p>Tbe boundary of tbe plaintiffs land approached tbe creek on which tbe dam was, on its eastern side, about two hundred yards above tbe dam, and ran thence up tbe creek two> hundred or three hundred yards, and then crossed it at right angles running west. Two dams that had previously stood near the. point where the present dam stands, and successively up to the time that it was erected, had thrown the water back so as to damage the plaintiffs land upon the eastern bank for more than twenty years before, — up to a point about one hundred yards below that at which the plaintiffs line crosses the creek. In 1858 or 1859, the present dam was erected, at a point six feet farther down the creek than that which it succeeded. It was no higher than the former dam, but was tighter. It did not pond'the water as far as either of the former dams, but after its erection, sand and mud accumulated at the upper end of the pond gradually, and drove the pond, or backwater, nearer and nearer to the dam, and, at the same time, raised the bed of the stream through the plaintiff’s land, above the line which crosses the creek, until the water became, in 1866- and thence down to the present time, on alevel with the banks at the line, and of the average of a foot and a half below the top of the bank through forty acres of bottom, which became sobbed and unfit for cultivation. Previously, the banks at the point where the line crosses, were three feet high, and through the body of the forty acres they were four, or four and a half feet high; and the bottom was dry enough for cultivation, and yielded fine crops.</p> <p>The defendant showed that for ten or fifteen years past-the banks of the creek had been cleared, and that the creek had been gradually filling up for five or six miles above the dam, and that the same fact was to be observed in other streams.</p> <p>The plaintiff admitted that the defendant, and those with whom he was connected, had had a twenty years user of so-much of the plaintiff’s lands as lay between the point where-the line- approached the pond on the east side of the creek, and a point about one hundred yards below where the line-crosses the creek.</p> <p>The plaintiff requested the Court to charge that a twenty years’ user afforded a presumption of a grant of license or easement only to the extent and in the state to which there was enjoyment for the whole twenty years, and that if from the evidence they should believe that there had never been, a user for that length of time above where the line crosses the creek, that the plaintiff was entitled to damages for the-injury to his bottom lands above the said line.</p> <p>The Court declined so to charge, and instructed the jury that a twenty years’ maintenance of the dam, and for that time using any part of the plaintiff’s lands, whether above or below the line crossing the creek, afforded a presumption of an easement, an d rendered the defendant irresponsible for damages, although the jury might believe that the filling up of the bed of the stream, and sobbing the plaintiffs bottom land above where his line crosses the stream, was occasioned by the dam of the defendant.</p> <p>Verdict for the defendant; Judgment accordingly; Appeal iby the plaintiff.</p>

Claim against the State, filed in this Court, January 1870, and heard under Art. IV, Sec. 11, of the Constitution of the State. The subject of the claim was the value of forty-four bales of cotton, said to have been sold by the State for about $6,290 00.

Motion, to vacate an injunction, overruled by Camion, Ji, at Chambers for Haywood, June 18th 1870.

<p>Where, one of two executors had informed creditors of his that certain cotton in a warehouse belonged to him, and thereupon they attached the,same for a debt due by him: Held, that such executors, upon inter-pleading, were not estopped by the declarations made as above.</p> <p>Executors who had qualified in South Carolina, and afterwards removed ‘ property from that State into this, may maintain a suit here for such property, without again proving the will, and taking out letters : in such case they need only show a duly certified copy of the record, &c. in South Carolina, as evidence of their title.</p>

Bill in equity, filed February 1868, and argued upon demurrer, before Thomas,' J., at Spring Term 1869 of Chayen Court.

Civil action, upon an arbitration bond, tried before Logan, J., at Spring Term 1870, of Gaston Court.

Debt, tried before Jones, J., at Spring Term 1870 of Pitt Court. 'The plaintiff declared upon a bond for money, payable to himself. It appeared that the name of the obligee had-been, inserted by one Haddock, to whom the defendant had handed it for other signatures, and for registration, after the defendant had executed it, having been in blank at that time, and that the date was also altered after that time.

Civil motion, for the partition of lands, tried before Watts, Jl, at Spring Term 1870, of Wake Court. The facts were, that John O’Bourke, a citizen of this State, .formerly of Ireland, died in Wake County in the Spring of 1867, seized in fee of the lands in question, and without lineal descendants. The plaintiffs in the action were Ellen Harman, Catherine Cassidy, and Laura, Erederic, Charles and Thomas Hinder.

Debt, tried before Logan J., at Spring Term 1870 of Mecklenbubg Court. Tbe plaintiff declared against tbe defendant as sheriff, &c., for tbe penalty of $100 given by Eev. Code, ch.*31, s. 39, because of bis having failed to note upon process tbe day on which be received it.

<p>Attachment, vacated., upon motion, by Buxton, J., at Spring Term 1870, of Cumberland Court.</p> <p>The facts are stated in the Opinion.</p> <p>The plaintiffs appealed.</p>

Debt, upon a sheriffs bond, tried before Logan, J., at Spring Term 1870, of Mecklenburg Court. Tbe plaintiff declared for a failure by tbe sheriff to collect • a debt, an execution for wbicb bad been in bis bands, &c. Upon tbe trial tbe plaintiff offered in evidence a copy of tbe bond certified by tbe Clerk of tbe Superior Court of Lincoln, of wbicb county tbe defendant was sheriff. Tbe defendant objected to tbe admission, but was overruled.

Assumpsit, tried before Logan, J., at Spring Term 1870 of Mecklenburg Court.

Case, tried before Russell, J., at January Special Term 1870 of New Hanover Court. The plaintiffs declared for breach of a contract to give them possession of certain premises, which they had leased from the defendant for one year, to begin in October 1865.

Assumpsit, tried before Buxton, .7., at Spring Term 1870 of CtJMBEBLAND Court. The action was commenced on the 4th day of May 1859, and the plaintiff declared upon a subscription by the defendant for two shares of its stock, of one hundred dollars each, on the 26th day of June 1855. The pleas were, The General Issue, and, Statute of Limitations.

Caveat, tried before Watts, J., at Spring Term 1870 of Northampton Court. The script propounded purported to be a holograph, and the only question was, whether it had been found in a proper place of deposit. That place was an upright desk, with a door swinging on binges at tbe bottom, and looked at tbe top. Tbe door protected a space occupied, above by pigeon-boles,. and, below, by two small drawers wbicb were closed but bad no locks.

Civil action, commenced before a justice, tried by . Watts, J., at Spring Term 1870 of Warren Court. One Claiborne being indebted to the plaintiff, it was agreed between them that the former should leave with a certain person (the defendant) seventy-five dollars, in payment of the debt.

Ejectment, tried before Watts, J., at Spring Term 1870 • of Geanville Court. The plaintiff claimed title under a sheriff’s deed, by virtue .of an execution in a suit by a creditor of one Merryman against the latter. Two months before the recovery of the judgment in that suit, i. e. in March 1867, Merryman sold the land to the defendant for ten thousand dollars. At that time he was insolvent, being indebted not only to the creditor above, but otherwise.

Civil action upon an official bond, tried before Cloud, J., at Spring Term 1870, of Davidson Court. The case was, that the defendant Lowe had been Clerk of the County Court of Davidson, and that the other defendant was one of his sureties. Whilst Lowe was Clerk, one Henderson Adams was guardian of the feme plaintiff, and the time for renewing his bond having come around, (August Term 1853,) lie failed to do so. Thereupon, it was the duty of Lowe to notify him thereof: (Eev.

<p>In defence to an action upon a note, the defendants, by way of counterclaim, alleged that it was given to the plaintiffs for rent of a tract of land, and that other parties, claiming such land by title paramount to that of the plaintiffs, had sued one of the defendants, seeking damages •for its occupation during the time for which the note was ’given ; and thereupon, by order of court, the owners were made parties plaintiff to the suit; the original plaintiffs then elected to be non-suited : Held, upon an appeal by the interveners from this judgment of non-suit :</p> <p>1. That they had a right to take a non-suit;</p> <p>2. That although non-suited, the action would go on for the interveners, and the persons non-suited would be bound by the result of the suit, as privies thereto.</p> <p>A plaintiff may elect to be non-suited in every case where no judgment, other than for costs, can be recovered against him by the defendant, and when such judgment may be recovered, he cannot.</p> <p>The defendants had a right to ask for a bond for costs from the inter-veners, as the parties non-suited ceased to be liable, except partially.</p>

Bile in Equity, filed in I860, in Alamance, and removed to this Court, at June Term 1869. The suit was by a former ward against his guardian, for an account; under an order of the Court, the account had been taken; and the plaintiff filed two exceptions thereto, viz: 1. That there was a mistake to a small extent, in crediting the guardian at Eebruary Term 1869; 2.

Motion to amend pleading, heard by Thomas, J., at May Special Court 1870, for Wayne.

<p>Wliere a contract for the purchase of tobacco required certain acts to be done in regard to it, (such as payment of the U. S. Tax, a permit &c.,) before it was accepted, and afterwards the defendant accepted it, knowing that such acts had not been done : Held, that he could not resist payment of the price agreed upon, by alleging that conditions had . not been performed :</p> <p>Nor, if the doing of such acts was suspended with the consent of the U. S. officers, andwastouaJMe, and not intended to defraud the government of its revenue, although the transaction may have been irregular,— could the defendant shelter himself from liability, by showing such omission to have been in violation of the law.</p>

Mandamus, tried before Mitchell, J., at Spring Term 1870, of Catawba Court. The case made by the parties, showed that in 1862 the County authorities, pursuing the provisions of the Ordinance of Dec. 6th, 1861, borrowed a large sum of money from the-plaintiff, in order, as was known to the plaintiff, to procure salt for the'families of soldiers in the Confederate army, and for other destitute persons. The money was duly applied as designed.

Debt, tried before Tour gee, I., at Spring Term 1870, of Randolph Court. The plaintiff declared upon a note for $1,000, dated June 21, 1861. The defence was, that the consideration was. illegal.

<p>Debt, tried before Watts, J., at Spring Term 1870, of' Granville Court.</p> <p>The cause of action was a bond for $1,600, dated February 3d 1863, the consideration of which was the loan of money, to be used, as the plaintiff knew, for the purpose of putting into tbe Confederate army a substitute for tbe defendant Holloway.</p> <p>His Honor instructed tbe jury tbat this formed an illegal consideration, and tbat tbe plaintiff, therefore, could not recover.</p> <p>Verdict for tbe defendant, &c. Appeal by tbe plaintiff.</p> <p>cited Martin v. McMillan, 63 N. 0. 486; Turner v. N. G. R. R. Go., Ib. 522 ; Clemmons v. Hampton, ante, 264, and Leah v. Oomm'rs, ante, 132.</p>

Debt, tried before Walts, I., at Spring Term 1870 of Gbakvillb Court. The plaintiff declared upon a bond for the payment of two thousand two hundred dollars, dated July 28,1862, with certain credits endorsed. The defendant pleaded, General issue, Payment and set off, Tender and refusal, Illegal consideration. The first plea was waived so far as it denied the execution of the bond.

Scire Eacias against a sheriff, for not making due return upon an execution, tried before Thomas, J., at Spring Term 1870, of Wayne Court. AtEebruary Terml867, of Wayne County Court, theplain-tiff had recovered judgment against John Everett and others, upon a bond dated April 25th 1866; execution issued from such term, and at May Term the sheriff returned, ‘‘To hand March 15th 1867 : Levied this fi. fa.

Covenant upon a bond for money, tried before Logan,. X, at Spring Term 1870, of Lincoln Court. No statement is required. Under the instructions of his Honor, there was a verdict for the plaintiff, for the fall amount of the bond. Judgment accordingly; and Appeal by the defendant.

<p>Debt, tried before Watts, /., at Spring Term 1870 of Geahville Court.</p> <p>No statement is necessary.</p> <p>The defendant appealed.</p>

Civil action, tried before Cloud, J., at Spring Term 1870 of Rowan Court. The facts were, that on the marriage of the plaintiff with the defendant Marcellus, in 1846, her property was conveyed to her separate use; in Mardh 1848, a part of it was invested in lots in Salisbury, which, in April 1866, were sold, and the land, in question, purchased. This last was, by mistake, ‘'conveyed to the husband for his own use.

Civil action, tried, upon appeal from a Justice of the Peace, by Logcm, J., at Spring Term 1870 of Cabarrus Court. The cause of action was a note given by the defendant to the plaintiff, for the hire of a slave for 1860. The slave belonged to one J. E. Eussell, a ward of - the plaintiff, and at the hiring, it was bid off by one E. E. Eussell, another ward of the plaintiff.

<p>Whether one possesses information superior to that of another, in regard to the subject matter of a contract, is a question of fací, and not of law.</p>

Civil action, tried before Jones, J., at Spring Term 1870, of Pitt Court. The action whs brought upon a note for $403.00, payable at six months, elated October 15, 1863, and given for the price of two bales of cotton bought at an administrator’s sale in Greene County. The price bid was fifty, cents a pound. On the day of sale, the defendant-asked the plaintiff if he would accept.

<p>Land having been devised charged with°the payment of a sum of money to a minor, the devisee also being appointed guardian of the minor Held, that the fact that the guardian charged himself with such money in his returns to Court, was no discharge of the lands.</p> <p>In such case the widow of the devisee, before she can be called on to contribute, is entitled (in aid of dower) to have the whole of the personal estate of the deceased, and, after that, all of his real estate not included in her dower interest, applied to the discharge of the debt.</p>

Civil action, for possession of land, tried before Bussell, Ji, at Spring Term 1870, of Onslow Court. Tbe defendant, by counterclaim, set up a contract for the purchase of the land by himself, in May 1863, at. $2,000, the payment of $1,000 thereof in Confederate currency, the giving a note for the remainder, and various payments thereupon since the Surrender,, in.

Covenant, upon a note given as the price of. a horse,• tried before Cloud, J., at Spring Term 1870, of Davidson, Court.

<p>Where a note was given' in 1862 in consideration of the loan of Confederate money, and in 1863 the payee endorsed it to the plaintiff in payment for a tract of land : Held, in a suit against the payee and the-maker, that the scale to be applied was the value of Confederate money in 1862, and not that of the land afterwards purchased by the payee.</p>

Mandamus, tried before Logan, J., at Spring Term J.870, of Mecklenburg Court. ■Tbe plaintiff alleged .that he was bolder of -coupons , of bonds issued by Cleveland County in 1857; that tbe act authorizing tbe bonds bad directed that taxes should be levied by tbe County authorities, in order to pay tbe coupons as they became due; that be bad demanded payment, and bad been refused; thereupon be asked . for a mandamus, -directing a, tax to ¡be-levied for bis satisfaction,…

Civil action, tried before Mitchell, /., at Spring Term 1870 of Catawba Court.

Debt, tried before Logan, J., at Spring Term 1870, of Euthereord Court. The plaintiff offered in evidence a bond for $1,902, dated May 25th 1863, payable Nov. 27th 1864, u to Squire Parker or Thomas Parker, in currency,” and executed by the defendant’s intestate. The defendant objected to the evidence, but was overruled, and therefore excepted.

Mandamus, before Logan, J., at Spring Term 1870, of Mecklenburg Court. The plaintiff had. taken out the process against the Justices of the (late) County Court of Cleaveland, in 1867, and they had answered. The suit was continued, (a part of the debt claimed having been paid from time to time,) until the adoption of the present Constitution abolishing those Courts.

Civil action, tried, before Mitchell, J., at Spring Term 1870, of Burke Court. The action was brought upon a bond executed by the defendants, payable to the plaintiffs’ testator at twelve months, and dated November 1, 1860. .

<p>Civil action, tried before Buxton, .7., at Spring Term 1870, of Union Court.</p> <p>The plaintiff brought the action upon an endorsement on a note, made by the defendant in blank, and filled up as payable to the plaintiff, previously to the trial. The defendant introduced parol evidence, going to show that when the plaintiff paid to the defendant the money due upon the note, he did so in behalf of its maker, to take it up for him, and not as a purchaser, and that the endorsement was understood by the parties not to bind the defendant for its payment.</p> <p>His Honor left it to the jury to find what the understanding of the parties was, when the endorsement was made,, telling them, if the latter was meant only as a receipt, to find for the defendant.</p> <p>Yerdict for the defendant; Eule, &c.; Judgment, and Appeal.</p>

Bill in equity, beard by Watts, ./., at Spring Term 1870, •of Granville Court.

Covenant, tried before Tourgee, J., at Spring Term 1870-of Guileord Court. The plaintiff declared upon a bond for the payment of money at one day after date, dated December 12th, 1863. It was admitted that the consideration therefor was a loan of bank bills; and the only question between the parties was as to the measure of damages.

Civil action, tried before Thomas, I., at Spring Term 1870 of Wayne Court. The defendant, atEallterm 1869 of Wayne Court, bad obtained judgment for some seventeen hundred dollars against the plaintiffs. The present action was instituted for the pul-póse of setting such judgment aside, and, in the meantime, to have a restraining order.

Motior, to vacate- a judgment, made before Watts, J., at Spring Term 1870 of Wake Court. This is a motion by Isabella, wife of Samuel Bowland, to-vacate a judgment taken by default against her husbandand herself, in the Superior Court for Wake County, on the ground .that the summons in the action was not personally served on her, and that she had no notice of such action.

Assault and battery, tried before Jones, J., at Spring Term 1870, of Washington, Court. The defendant pleaded, Former Conviction ; and, in support thereof, relied upon the fact that he had been tried and convieted for the same offence, by a Magistrate of the county. The plea did not state that the Magistrate who tried him, was a Justice of the Peace in and for the township in which the offence was committed.

Largely of a horse, tried before Tourgee, J., at Spring Term 1870, of Oraet&b Court. It was shown that the defendant borrowed the horse of his owner, at that time in Hillsboro’, in order to ride to a place about one mile from town. He was directed by the owner to hitch the horse on coming back, about a certain place; not where he was when taken.

INDICTMENT, for hunting with a gun upon Sunday, tried before Watts, J., at Spring Term 1870, of Nash Court. The indictment charged the offence to haye been committed il on the 1st day of October 1868,” &c., “ on the Sabbath ■day,” &c., &c, A special verdict having been found in accordance.with the indictment, his Honor gave judgment for the defendant, .and the Solicitor for the State appealed.

Assault, tried before Watts, J., at Spring Term 1870,, of Halifax Court.

<p>What a man says when charged with a crime, is competent evidence for him ; therefore, what was said by a man charged with having stolen goods in his possession, who thereupon showed them, is competent.</p> <p>It was also competent, as part of a conversation, the first part of which had necessarily been given in evidence by the State.</p> <p>In such cases, the record ought to show what it was that the defendant said, — so as to show its importance, and that its rejection prejudiced him ; it ought also to present what had been said by the person who charged that he had stolen goods in his possession.</p> <p>(Observations by the Court, upon the importance of counsel’s bestowing care in making up cases for this Court.)</p>

Indictment for receiving stolen goods, tried before Watts, J., at Spring Term 1870 of Eeanklin Court. The defendant was charged with having received ten pounds of bacon, of the value of six pence, knowing it to have been stolen: Having been convicted, upon motion the judgment was arrested for want of jurisdiction. The Solicitor for the State appealed.

Motion, for discharge, by a defendant in a case of larceny, made before Buxton, T., at Eall Term 1869 of Union Court. The defendant had been convicted of larceny, and having appealed to the Supreme Court, judgment had been rendered there, that there was no error (63 N. C. 98,) and a transcript had been sent down accordingly.

Murder, tried before Buxton, /., at Spring Term 1870 of ■Cumberland Court.

Indictment for promoting, &c., a lottery, tried before Bussell, J., at Spring Term 1870, of New Hanoyee Court. The defendants claimed a right to sell and dispose of personal and real property, among other ways, by lottery, under the private act of 1868-’9, c. 42, which chartered the North Carolina Beal and Personal Estate Agency; and the question was, whether such authority was given therein. The clause relied upon is given in the Opinion.

<p>Upon the trial of issues in proceedings for bastardy the defendant is a competent witness.</p>

Murder, tried before Mitchell, J., at Spring Term 1870 of Burke Court. The deceased was Andrew Caldwell, and when killed, he was talking with the wife of the prisoner, who was upon her way to a neighbor’s. The prisoner had gone part of the way with his wife, and then turned back towards home, but concluded that he would follow his wife, and watch her. Upon his wife’s discovering him, she ran off, telling the deceased to run also.

Murder, tried before Jones, J., at Spring Term 1870, of Edgecombe Court. Tlie prisoner was charged with shooting his wife, at their home, which was also the home of a son-in-law of theirs. It appeared that the prisoner and the deceased were sitting outside of the door, and the son-in-law and his wife, inside, by the fire. A child of the son-in-law had a fall, and cried, and the prisoner became vexed at, what he thought, the negligence of the child’s parents.

Murder, tried before Gannon, J., at Spring Term 1870, of Jackson Court. The prisoner, Ta-cha-na-tah, together with one Johnson Ta-yah-ln-tan-hih, (not upon trial,) described as Cherokee Indians, were charged with killing Ches-qua-nut, also an Indian, the former being charged as principal, and the latter as aiding and abetting.

Labceny, tried before Watts, J., at Spring Term 1870,, of Fbahklih Court.

<p>Motion to set aside a judgment, for want of service of ‘the mesne process in the action, made before Towrgee, J., at ■Spring Term 1870, of Eockingham Court.</p> <p>The writ had been returned to the Clerk’s office, “ exe-•euted on 18th Nov. 1868,” and upon the 9th December thereafter judgment was rendered for want of an answer, •&c. In January 1869 the defendants became bankrupt, and upon the 11th March 1870, notice of this motion was given by the assignee. Both parties filed affidavits npon the question, and at Spring Term 1870 the following order was made:</p> <p>“ On reading and filing the accompanying affidavits, and proof of the service of the notice of this motion, and on motion of, &c., &c., ordered that the judgment obtained in the above entitled actions (being tivree, appeals in all of which 'were afterwards taken) as above set forth, be vacated, &c.”</p> <p>The plaintiff appealed.</p>

Motion to set aside a judgment given at Fall Term 1869, heard by Mitchell, J., at Spring Term 1870, of Iredell Court. Tbe facts appear in tbe Opinion. His Honor refused to make tbe desired order, and tbe defendant appealed. 1. Tbe power given in O. C. P. s. 133, to set aside a judgment, is discretionary, and so cannot be reviewed by appeal: Simonton v. Ghipley, ante, 152. 2.

<p>Where a judgment was rendered, upon an attachment, in August 1866,— the defendant had notice thereof in November 1866, and application was made by him, in March 1869 to vacate it, on the grounds: that he had had at the time it was rendered, no notice of the action in the cause in which it was rendered, Chat, he was an infant when the note was given, and had had no opportunity of pleading it: Held, that, in any view, his laches after November 1866, would defeat the application.</p>

Bill in equity, coming before MiteheTl, J., upon an exception to a report, at Spring Term 1870 of Caldwell Court. No other statement is required than what appears in the Opinion. The exception of the plaintiffs to the report having been overruled, they appealed. Treating the parties to the covenant as vendor and vendee, the Court will not divest the vendor’s title before he is indemnified according to the contract: 1 Story Eq. Jur. s. 742; Lloyd v. Wheatley, 2 Jon. Eq. 267.

Ciyil action upon Railroad Bonds, tried before Tourgee, J., at Spring Term 1870, of Orange Court. The defendant set forth, that no part of the track of said road is situated in the county of Orange, and that the only •county in the State, in which such road is situated, is Meck-lenburg, — and demanded that trial should be removed to the latter county, according to O. C. P., s. 69.

Civil action, tried before Mitchell, J., at Spring Term 1870 of Iredell Court. On the 20th of August 1862, the defendants Rintels & ' Wittkowski, upon a loan of Confederate money, made their note to Lowrance (whose administrators the plaintiffs are,) who afterwards endorsed it to Sharpe, and he, at Fall term 1864 of the Superior Court of Law for Iredell County, recovered judgment on it by default against both the makers and the administrators of the endorser.

Bule upon a Olerk in the cause above, beard by Mitchell, J., at Spring Term 1870, of Wilkes Court. The plaintiff recovered and docketed a judgment in tbe Superior Court of Wilkes against Benjamin P. Martin, and issued an execution to that County, which was returned nulla bona. He thereupon obtained an order for the examination of Martin, who, on April 27th, 1870, gave information that one Shuford, a non-resident of the State, but then in Catawba County, was indebted to him.

Civil action upon a bond payable to the intestate, tried before Logan, J., at Spring Term 1870, of Cabaeeus Court. The defendant Henry having answered that the instrument sued upon was not his act and deed, offered upon the trial his co-defendant Daniel as a witness, to prove that when he, Henry, executed it, it was in blank as to the amount payable, and that it was filled up afterwards, in bis absence, and without authority under seal.

Debt upon bond, tried before Cloud, J., at Spring Term 1870 of Surry Court. The plaintiff declared upon a plain bond for money, payable /‘in silver or its equivalent ” at one day after date, and dated July 2,1864. The defendants pleaded: General issue, and Payment and set-off. The name of the obligee was J. W. Brower, who had died before the time of the examination of the witnesses, having previously endorsed the bond to the plaintiff.

Dower, before Mitchell, J., at Spring Term 1870, of Burke Court. Tbe summons bad been made returnable to tbe Term of tbe Court. Tbe defendants moved to dismiss for want of jurisdiction. His Honor refused to make tbis order, and tbe defendants • appealed.

Ciyil ACTION to recover possession of land, tried before Jones, J., at Spring Term 1870, of Washington Court. Tbe summons was returned before the Clerk, and the defendant having demurred to the complaint for want of jurisdiction, the action was dismissed; upon an 'appeal to the-Judge, this ruling was reversed; and the defendant appealed to this Court.

Civil action, tried before Cloud, J., at Spring Term 1870 of Forsythe Court. The complaint was founded upon a note, executed by the •defendants, for two hundred dollars, dated May 17,1859, the interest upon which, after deducting certain payments, •amounted to some thirty-nine dollars. The defendants demurred, for want of jutisdiction. Judgment for the defendants, and Appeal by the plaintiff.

Motion to vacate a judgment, made before Tom-gee, at Spring Term 1870, of Guilford Court. No statement beyond wbat appears in tbe Opinion, is necessary. His Honor granted an order to vacate tbe judgment, and tbe plaintiff appealed.

Civil Action upon a Clerk’s bond, tried before Pool, J.y at Spring Term 1870 of Chowan Court. The facts on 'which it was sought to recover upon the bond of the defendant Jones, as Clerk of Chowan Superior Court, were, that at Spring Term 1807 of that Court, the plaintiff had obtained a judgment for money against one Leary; that the Clerk had fwiled to issue an execution therefor for two terms afterwards; and, that in the meantime Leary had become insolvent.

Motiok to amend a summons, made before Tourgee, J.r at Spring Term 1870 of Chatham Court. The summons had been issued in July 1869, returnable. before the Cleric, and the complaint, and answer, in chief, had been filed before him. The cause was then transferred by him to the next term, with the names of 'the attorneys for the parties marked on the docket.

Civil action, tried before Jones, J., at Spring Term 1870 of Washington Court. The action bad been commenced by a summons returnable (Nov. 1,1869,) before a Magistrate. Incident to this, was a warrant of attachment, upon an allegation that the defendant bad left the State, &c. The warrant was returnable Nov. 27th. The summons was returned, (“Not to be found,” &c.,) upon the 26th of November.

Contested election, tried before Bussell, J., at Spring. Term 1870 of New Hanover Court. An Act of Assembly authorized six Justices to be elected in the township including Wilmington; and upon a contest occurring as to which of these composed the Board of Trustees for such township, the County Commissioners decided that the two elected for the township at large (the plaintiffs), were such Board. Thereupon the defendant appealed to the Superior Court.

Assumpsit, tried before Thomas, J., at Spring Term 1870, of Craven Court. The plaintiff bad served as policeman in Newbern from •July 1865 to March 1866, under an appointment by persons, who, during that time, acted as Mayor and Commissioners of the City under an appointment by Governor Holden, whilst Provisional Governor. Under the instructions of his Honor there was a verdict .and judgment for the plaintiff; and the defendant appealed.

Exceptions to a report, made in an action of Debt against executors upon a bond given by their testator, tried before Tourgee, J., at Spring Term 1870, of Chatham Court.

Exceptions to a report iipon assets, in an action (commenced in February 1868,) against executors, tried before Tourgee, J., at Spring Term 1870, of Chatham: Court. George W. Goldston, the testator, died in November 1863, leaving a considerable estate, mostly in notes and other personalty, which having been lost by the results of the war, it was found that the estate was insolvent.

Debt upon bond, tried before Tourgee, ■!., at Spring Term 1870 of Randolph Court. The bond bad been executed Sept. 1, 1863, payable at six months, for $1400, being the price of a negro girl then purchased by the obligors. Payments were endorsed thereupon : of $800, paid April 30th 1864, and of $400, paid Oct. 29th 1864.

Civil action, tried before Mitchell, J., at Spring Term 1870 of Caldwell Court. A summons, issued in the name of Jesse Eankin, plaintiff, .against E. M. Allison and others, defendants, returnable to the Superior Court of Caldwell County. The complaint alleged, that the defendants, on February 26th 1863, made a promissory note to Sarah 0.

INJUNCTION, ordered by Bussell, J., at Spring Term 1870, -of Eobeson Court. The prayer for judgment in the action to which the order was incidental, was, that a certain deed should he surrendered for cancellation; the order on motion of the plaintiff,, was, that two suits, one of trespass, and one of ejectment, brought by the present defendant against the present plaintiff, and still pending, — being suits based upon a title created by such deed, should be stayed.

<p>The defence of set-off as heretofore administered in the State has, by the O. O. P., been merged in that of counterclaim, the effect of which, in one respect, is, that a defendant is not allowed to off-set the claim of a plaintiff as assignee of a note past due when assigned, by showing that the assignor was indebted to such defendant at the time of the assignment; unless such counterclaim had attached itself to the note before the assignment, ex. gr. by an agreement that it should be applied thereto, or otherwise.</p>

<p>Case submitting a question in difference, decided by Tourgee, J., at Spring Term 1870, of Person Court.</p> <p>The question was, whether there were any priority between judgments taken as follows: The Ball Term of Person Court 1869, began by law upon the 6th Monday after the first Monday of September, being the 18th day of October, hut the Judge did not attend until the 7th Monday, being the second week of the term, he having previously directed the sheriff to adjourn the Oourt until that day. The plaintiff’s judgments were taken at that term, and were certified as docketed on the 26th day of October. The defendant’s, judgment had been rendered at Eall Term 1869 of Granville Court, and was docketed in Person on the 18th day of October 1869.</p> <p>Execution issued upon all such judgments, and an amount of money was raised thereupon that was insufficient to satisfy all.</p> <p>The plaintiff claimed that his judgments were to be taken as docketed upon the 18th day of October, and moved that the record he amended so as to show this fact; and that thereupon, the money which had been raised by the sheriff upon the above judgments, should be applied to all, pro rata.</p> <p>The defendant claimed that the judgment recovered by him, was to be satified in full, before any part of the money should he applied to those in favor of the plaintiff.</p> <p>His Honor gave judgment in favor of the defendant, and the plaintiff appealed.</p>

Special proceedings to obtain damages caused by the erection of a mill, tried before Cloud, at Spring Term 1870 of Rowan Court. The summons was issued April 3d, 1869, and was made re turnable to term. The defendant having taken issue upon the allegations of the complaint, they were submitted to a .jury, who found a verdict for the plaintiff, assessing his damages, &c. The defendant appealed.

<p>Assumpsit, commenced Nov. 16th 1867, tried before Watts, J., at Spring Term 1870, of NORTHAMPTON Court.</p> <p>The plaintiff declared : 1. For money had and received; 2. On a special contract to convey certain land to plaintiff, and a refusal to do so.</p> <p>The case states that on the 4th of October 1866, the defendant agreed in writing, in consideration of $1200, to sell to plaintiff all the islands in Boanoke Eiver between certain points; “ Title to be retained until the purchase money is paid; Payments, one-third Jan. 1st 1867, one-third Jan. 1st 1868, one-third Jan. 1st, 1869.” On February 1st 1867, plaintiff paid defendants $200. Afterwards he notified defendants, that in consequence of their inability to make title, he (the plaintiff) abandoned the contract, and demanded repayment of the $200. This the defendants refused. There are five islands,, viz: Jones, Ivey, Hickory, Holly and Collard, lying between the points named in the contract, to which it was admitted that defendants at the date of the contract had no title, and that they had not acquired any up to suit brought; but this want of title, it was alledged by the defendants, was known to the plaintiff. There are several other islands between the points named, of which the defendants claimed to have owned at the date of the contract an undivided ninth, as tenants in cammon with other persans. The plaintiff objected to the evidence tending to prove Ms knowledge of the defect of title in the defendants, but it was admitted.</p> <p>The Judge told the jury that if the plaintiff knew at the time of making the contract that defendants had no title to the islands, he was not entitled to recover anything, but if he did not, he was entitled to' recover $200. The jury found for the plaintiff, and assessed his damages at $100. There was an allegation of misconduct by the jury,, which it is unnecessary to consider.</p> <p>The plaintiff appealed.</p> <p>1. Where purchaser has paid any part of the price, and vendor is unable to make title, from any cause, the former may abandon, and sue for money had and received: Chitty, Cont. 316, Sugden, Yend. 279.</p> <p>2. The rule of damages is: What he has paid and interest, and expenses in investigating the title: Fuller v. Hubbard, 6 Con. 13; Ciarle v. Smith, 14 Jon. 329.</p> <p>3. That vendee, at time of contract, knew of defect of title is immaterial: Chitty Cont. 320, Bmrett. Wheeler, 7 M. & W. (Exch.) 364.</p>

Civil action, tried before Pool, I., at Spring Term 1870 of Chowan Court. The plaintiff demanded one-half of a Policy of $4,012 upon the life of her husband, W. 0. Roberts deceased, which was the only estate left by the deceased, and had been received by the defendant as his executor, and was held by him subject to the disposal made thereof in the will. The Policy had been issued by the Georgia Masonic Mutual Life Insurance Company.

<p>A guardian of an infant (some fifteen years of age) obtained judgment in her favor in July 1861, against parties who were, and remained until the Surrender, amply) solvent — by his direction no execution was issued upon such judgment during the war, and until his death, ip March 1866; the administrator of the guardian commenced an action upon the judgment in October 1866; and before he obtained judgment therein, the defendants sold' out their property, removed from the State, and were found to be insolvent: Held, that neither the guardian nor his administrator were chargeable with negligence in managing the debt due to the ward.</p> <p>Guardians are not responsible' for losses to their wards attributable to their not having resorted to new and extraordinary remedies the force and effect of which are doubtful.</p>

Debt upon an administration bond, commenced in 1858, and tried upon exceptions to a report, before BaMey, J., at Eall Term 1863 of Mecklenburg Superior Court. It appeared from the report that the defendant administered on the estate of Drury Clanton in 1834, and thereupon took into his possession two notes on Robert Hamilton, for about $984.

Civil action, tried before Tourgee, J., at Spring Term 1870 of Chatham Court. The plaintiff alleged that the former County Court of Chatham had incurred the two debts for which he now demanded judgment, in building, and repairing bridges; and that they had been allowed, after being scaled. No demand for such debts was alleged.

Civil ACTION, tried before Clouci, J., at Spring Term 1870 of Bowan Court.

<p>Civil action, before Russell, J., at Spring Term 1870 of Bobeson Court.</p> <p>The plaintiffs demanded a settlement by the defendant of Ms trust as former guardian of Mrs. Eowland. The defendant answered, submitting to an account. During the taMng of the account the defendant excepted to various points of evidence, &c. The Probate Judge gave judgment for the plaintiffs, for a large amount. And the defendants appealed to the Judge of the District.</p> <p>Upon the case being brought before his Honor at Chambers in Wilmington, he ordered it to be transferred, for trial as to matters both of law and fact, to the next term of the Court to be held for Eobeson County.</p> <p>The plaintiffs thereupon appealed.</p>

J., at Chambers in Yadkin County, April 27th 1870. The complaint, filed in Wake Court, set forth that: 1. By an act ratified Dec. 20th 1866, the Company defendant was authorized to issue bonds not to exceed $4,000,000, for the security of whose holders it might execute a mortgage, conveying its franchise, &c., which should be a first mortgage, — a previous loan in favor of the State to be postponed, and made a second mortgage; 2.

Civil action to recover possession of land, &c., tried before Mimell, J., at Spring Term 1870 of JBladen Court.

Oivil action upon a bond, tried before Jones, J., at •Spring Term 1870, of Beaueobt Court. The answer relied upon the defence of set off. Upon the plaintiffs offering the bond in evidence, the defendant objected to its being read, because it was not stamped.

Assumpsit, tried before Bussell, J., at December Special Term 1867 of New Hanover Court. The action was brought to recover the price of two carpets, the transaction in regard to which is presented in the following correspondence. Robeson, N. C., Dec. 10th, 1866. Wadteb Crook, Jr., Esq., Baltimore: Sir : — General R. of Wilmington, has kindly furnished me your name, and recommends your house.

Exceptions to a report, tried by Tonrgee, J., at Spring Term 1870 of Chatham Court. The plaintiff O. H. Womble, as executor of Cornelius Womble, deceased, filed Ms bill in equity, alleging the loss of the personalty belonging to his testator by accident, connected with the results of the late war, and asking for license to sell the realty, for the purpose of paying debts.

Civil action, before Jones, J., at Chambers, for Edge-combe, March 16, 1869.

Injunction, before Towrgee, J., on a motion to dissolve, at Spring Term 1870 of Chatham Court. The defendants, as Township Trustees, had employed one Thomas to open, from the abutments of a bridge, a way to an old ford across Cape Fear Biver at Haywood; and upon his doing this, the plaintiff, who owned the land at that place, brought this action for damages, for pulling down' a fence, &c., and for an injunction, He obtained an order of restraint in vacation.

Bill in equity, filed in 18G6, and heard upon bill answer and proofs, by Mitchell, J., at Spring Term 1870 of Caldwell Court. The bill alleged that Allen Ferguson was seized of a certain piece of land; that John Ferguson, his brother, and one Langston, Ms brother-in-law, had obtained judgments against him; and that their executions had been levied on the land.

Trespass on the case, for malicious prosecution, tried before Watts, J., at December Special Term 1869 of Wake Court.