Volume 65 — North Carolina Reports

<p>"Where two or more plaintiffs had, prior to the adoption of the new Constitution and the Code of Civil Procedure, obtained judgments at the same term of the County Court of a County, and then after such Constitution and Code had been adopted, transferred them to the docket of the Superior Court, at different times, but all within six months as required by the sections 400 and 403 of the C. C. P., and had then issued executions on them at different times, but all came to the Sheriff’s hands before the sale of the defendant’s land; it was held that under Art. 4, Sec. 25, of the Constitution, which ordains that “actions at law, and suits in Equity, pending when this Constitution shall go into effect, shall be transferred to the Courts having jurisdiction thereof, without prejudice by reason of the change,” the proceeds of the sale under the executions shall be applied pro rata to all of them.</p> <p>The case of JSTorvjord v. Thorp, 64 N. C. Rep. 682, cited and approved.</p>

This was a motion to set aside an execution made before Ms Honor, Clarice, J., at the last Term of the Superior Court of Wayne County. The material facts were, that at the August Term, 1861,. of the County Court of Wayne County, the plaintiff obtained a judgment against the defendants. Successive executions were duly issued thereupon, and previously to May Term,, 1866, a levy had been made upon the lands of the defendant J. M. E. Harrison, who resided in the County of Craven.

This was an action of ejectment commenced before the .adoption of the Code of Civil Procedure, submitted to His Honor, Buxton, J., at the Spring Term, 1870, of Moore .Superior Court, upon a ease agreed. The fact upon which the case was considered in the Supreme Court will be found to be sufficiently stated in the opinion filed. In the Court below the Judge decided in favor of the lessor of the plaintiff. And the defendant appealed.

This was a civil action brought by the plaintiff to recover from the defendant the balance of a general deposit account kept between him and the branch bank of the defendant at Salisbury.

This was a motion made at the Eall Term, 1869, of Cumberland Superior Court, to amerce the sheriff of that county for failing to execute process, and for making an insufficient return to a writ oifi. fa. against one John W. Matthews.

This was a civil action brought by the plaintiff against; the defendant under the C. O. P., to recover possession of the tract of land described in the complaint, tried before' Mitchell, J., at the last term of the Superior Court for the county of Alleghany. The facts material to a proper understanding of the case were as follows: The land in dispute consisted of about forty acres, lying in a peninsula formed by a bend in New Biver.

This was a bill filed prior to the adoption of the new Constitution and the Code of Civil Procedure, in the Court of. Equity for the County of Caldwell, for the purpose of having the sale of two tracts of land, sold by the defendant Thomas Roberts, as the administrator of his father, William Roberts, set aside upon the ground of fraud, and that he had, through an agent, purchased at his own sale.

<p>Whenever, by any accident, there has been an omission by the proper-officer to record any proceeding of a Court of record, the Court has the power, and it is its duty on the application of any person interested, to have such proceeding recorded as of its proper date ; and such amendment should be made, even though the rights of third persons may be affected thereby.</p> <p>An amendment supplying an omission in the record of a Court differs materially from one made for the purpose of putting into a process, pleading or return, something which was not in it originally; as an amendment for that purpose will not be allowed to the injury of third persons.</p> <p>Upon a motion to amend a record of a Court, it is not regular or convenient, collaterally to consider what the effect of the amendment will be, or whether the Court had the right to do what it is alleged that it did. These questions must be decided in some proceeding directly for-that purpose.</p> <p>A motion to amend the records of the County Courts which existed prior to the adoption of the present Constitution and the Code of Civil Procedure, in any matter relating to the appointment of an administrator, or qualification of an executor must now be made to the Judge of Probate, and not to the Superior Court of the County.</p> <p>The case of PMllipse v. Higdon, Bus. Rep. 380, cited and approved.</p>

This was a bill filed under the old practice to which the defendant filed his answer, and the cause was set for hearing upon the bill and answer without any replication having been taken. Upon the cause coming on to be heard before his Honor, Judge Jones, at the last term of the Superior Court for Beaufort County, the plaintiff obtained a decree and the defendant appealed. The facts of the case are sufficiently stated and explained in the opinion of the Court.

This was a bill filed by the plaintiffs in the Court of Equity for the County of Alamance in 1864 against the defendants, Joshua Bouse and his wife, for the specific performance of the following contract in writing: “Know all men by these presents that I acknowledge myself indebted to George W. Swepson and Bufus Y. McAden, of Alamance County, State of North Carolina, in the sum of thirty thousand dollars, tor the payment of which I bind my heirs and assigns.

This was an action of debt under the former system upon a bond in the following words : “Pleasant Valley, S. C. $900. One day after date, we or either of us promise to-pay Jane D. Houston or order nine hundred dollars for value received. As witness our hands and seals. R. C. POTTS, [Seal.] J. M. POTTS, [Seal.”] The defendants plead general issue, usury and fraud.

This was an action of debt, commenced prior to the adoption of the Code of Civil Procedure, which after issue joined upon the defendant’s pleas, was, by an order of Court, referred in the following terms: “This caiuse, together with all other matters in difference between the parties, is referred to J. Keener and J. Ramsay Dills, with leave to choose an umpire and their award, or that of a majority of them, to be a rule of Court.” At the Spring Term, 1870, of Jackson…

The plaintiff obtained a judgment against the defendants, John T. Atwood, Charles Atwood and Mary Atwood, upon which he had an execution issued.

This was a civil action tried at the Fall Term, 1870, of the Superior Oourt of Caldwell County,, before his Honor Judge Mitchell. For the plaintiff it was testified by the Clerk of the Oourt that he placed in the mail at Lenoir, enclosed in a stamped envelope, the summons in question directed to the Sheriff of Franklin County, and that he had no •other evidence of its having come to the hands of the defendant, who was the Sheriff of that County.

This was a civil action upon a judgment confessed by the defendants as executors of one Solomon Hall upon the compromise of a suit in which the will of the testator was caveated by the plaintiffs. By the terms of the compromise the will was admitted to probate, and upon the confession of the judgment, it was agreed that the amount of it ($13,000) ' should not bear interest for twelve months, and that execution should be stayed for two years.

This was a civil action brought to recover the amount of a bond given in January, 1867, by the defendants to the-plaintiff, as Clerk and Master, for the purchase money of a tract of land sold under an order of the Court of Equity, tor the County of Watauga.

This was a special proceeding by an administrator for tbe purpose of obtaining an order to sell land for tbe payment of tbe debts of bis intestate, commenced in tbe Court of Probate for tbe County of Halifax. A question of law having arisen in tbe course of tbe proceedings, it was sent to bis Honor Judge Watts, wbo having decided in favor of tbe plaintiff, tbe defendants appealed to tbe Supreme Court.

The motion was granted and a judgment rendered which the defendants, at a Special Term of the said Court, held in January, 1871, moved to have set aside and vacated upon the following grounds: 1st. Because the act of Assembly, 1869-’70, ch. 226, did not authorize the motion made at Fall Term, 1870, as against the sureties of the Sheriff. 2nd.

This was an action of trespass, vi et armis, commenced in the year 1860, and tried before his Honor, Judge Russell, at the Spring Term, 1870, of the Superior Court of Bladen County, upon the issue… Held: had expired before the trespass was committed, and the defendant contended that the plaintiff could not recover for the scrape turpentine remaining on the trees.

<p>This was a civil action brought in the Superior Court of Bow an County, for the recovery of a pecuniary legacy of $5,000 bequeated to the plaintiffs by Samuel Kerr, the testator of the defendant. In their complaint the plaintiffs alleged that the defendants, as executors of the testator, had assented to the legacy and had in their hands sufficient assets wherewith to pay it. The defendants filed an answer to the complaint, in which they denied that they had assented to the said legacy. At the Fall Term, 1870, of the Court, his Honor, Henry, J., presiding, the defendants moved to dismiss the suit for want of jurisdiction, which motion was sustained by his Honor, and from the order dismissing the suit the plaintiffs appealed.</p>

This was a bill filed under tbe former system in tbe Court ■of Equity for the County of Wayne. Tbe defendants filed their answers, whereupon tbe case was set for bearing upon bill and answers, and transmitted to be beard in this Court. Tbe facts and pleadings in the cause will be found sufficiently stated in the opinion of the Court.

This was a civil action commenced in 1869, and tried before his Honor, Judge Mitchell, at the Eall Term, 1870, of the Superior Court for Iredell County. The claim was for damages caused by the defendant, taking and using the plaintiff’s land for its road.

<p>Motion to vacate a judgment made before his Honor, Judge Clarice, at the Fall Term, 1870, of Wayne Superior Court.</p> <p>His Honor refused to grant the motion and the defendant, Oliver, appealed. The case is sufficiently stated in the opinion of the Court.</p>

This was a civil action tried before his Honor, Judge Mitchell, at the Eall Term, 1870, of Bubke Superior Court.

<p>The 503rd section of the O. C. P., which provides for the docketing of a Justice’s judgment in the office of the Clerk of the Superior Court of the County, so as to make it a judgment of the Superior Court, from the time of its being docketed, is not repealed by the Act of 1868-9,. ch. 76, entitled “An Act suspending the Code of Civil Procedure in-certain cases.”</p> <p>The cases of Norwood v. Sharpe, 64 N. C. Rep. 682, and McAdoo v. Benbovr, 63 N. O. 461, cited and approved.</p>

This was a civil action tried before his Honor, Bussell, J.r at the last Fall Term of the Superior Court of Anson County. The complaint was founded upon a bond executed by the defendant to the plaintiff’s intestate in the year 1861. The defendant admitted the execution of the bond, but relied as. a defence upon the statute of usury, Rev. Code, ch. 114.

This was a civil action tried before Mitchell, J., at the Eall Term, 1870, of Burke Superior Court. The plaintiffs were the executors of Jacob Harshaw and sued in that capacity. On the trial, it became material to ascertain whether the testator of the plaintiffs had received from the defendant certain Confederate money voluntarily, or under fear and coercion.

<p>This was an action of debt tried before his Honor, Tow-gee, J., at the Spring Term, 1870, of the Superior Court for the County of Person. The suit was upon a promissory-note made by the defendants, Walker & Co., to the defendants, Wade & Co., for the sum therein mentioned, dated. 24th July, 1862, with interest from the 16th July, 1862, and assigned to the plaintiff in April, 1867. The defendants, pleaded, payment, set off, tender and refusal, and the statutes for scaling debts solvable in Confederate currency.</p> <p>It was proved that the note sued on was given for one which Wade & Co. had theretofore given to the plaintiff for money lent, all of which was in Confederate money, except •about fifty dollars in North Carolina bank notes. In March, 1863, the defendants, Walker & Co., offered to pay the sum -due the plaintiff, informing him that they had the amount in their safe at that time. The sum offered was in Confederate -currency, and the' plaintiff objected to taking it then, but said he would do so in the ensuing Fall, and thereupon the -defendants, Walker & Co., concluded to retain the money for awhile longer and did so. In September, 1863, one of ■defendants of Walker & Co., having in his possession and upon his person the amount of said note in Confederate currency, met the plaintiff in the street and told him that he wanted to pay off the note, to which plaintiff replied, “that note will be among my papers at the close of the war.” The ■Confederate money was not produced nor shown to the plaintiff at this time. The witness, who proved the above, said he had the same amount in Court at the time of the trial, but there was no evidence that it was the identical package ■which he had on his person' at the time of his conversation with the plaintiff.</p> <p>His Honor instructed the jury that there was no evidence .to prove a tender either in March or September, 1863, and that the plaintiff was entitled to recover the amount of the note with interest from its date according to the scale of depreciation at that date.</p> <p>The’defendants’counsel asked the Court to instruct the Jury that if they believed that the plaintiff had evaded the offer of payment in March, 1863, by a promise to receive •the Confederate money in the Fall of that year, and thereby •relaxed the efforts of the defendants in providing otherwise for the payment of the note, and in the Fall, refused to accept said currency, it was fraud on his part, which entitled the defendants to the application of the scale of the said currency established for said currency. The Court refused, the instruction. First, because there was no evidence to-.show that the plaintiff had agreed to accept such currency in payment of the note. Secondly, because the plaintiff was. not originally a party to the note, and no fraud on his part, could affect the time at which the scale should be applied. Thirdly, because fraud could not be enquired into in this-form of action.</p> <p>The jury returned a verdict in favor of the plaintiff in. accordance with the instruction of the Court, upon which a, judgment was rendered, and the defendants appealed.</p>

This was a petition filed by the plaintiff as administrator for the sale of the land of his intestate for the payment of his debts, before the Judge of Probate, for the County of Heedebsoe. Such proceedings were had that the land was sold, the sale confirmed and a deed ordered to be made to the purchaser, which was done before the purchase money was paid.

This was a civil action in which the plaintiff applied for an order for an injunction, tried before his Honor Jones,./., at the last term of Hyde Superior Court. The complaint alleged in substance that the present defendant, John G-.

This was a civil action upon a guardian bond brought in the Superior Court of Rowan County, which was upon the motion of the plaintiff’s attorneys referred to T. G-. Haughton and D. H. Davis for an account and report. The referees having acted and returned a report to the Fall Term, 1870, of the Court, each party filed exceptions to it, which it is unnecessary to state.

This was an action of assumpsit under the former system tried before his Honor Tourgee, J., at the Fall Term, 1869, of the Superior Court of Eandolph County. The plaintiffs declared in three counts. 1st, upon a check, in the following-words and figures: “Bank of Yaítcexville, $3688. Yanceyville, N. 0., 3d Dee., 1863. Cashier of the Bank of Cape Fear, Greensboro’, N. 0.,. pay to the order of Thomas D. Johnson, thirty-six hundred and eighty-eight dollars. No. 2262. JOS.

This was a petition filed by the plaintiffs against the defendant before the Judge of Probate, of Robeson County, for an account and settlement of tbe defendant’s account as guardian of tbe feme plaintiff.

This was the case of an application for the writ of mandamus tried before Logan, Judge, at the Spring Term, 1870, of the Superior Court of Mecklenburg County, decided against the plaintiff and taken to the Supreme Court by his appeal.

This was a petition by the plaintiff as the administrator-of William A. Britt for the sale of land to pay the debts of the intestate upon which a reference was made to the Clerk for a report, and it came on to be heard before Tourgee, Judge at the Spring Term, 1870, of the Superior Court of Alamance County, upon exceptions by the defendants to the report which was returned. The exceptions were sustained, and the plaintiff appealed.

This was an action in which the plaintiff, claiming that he was tax collector for the County of Craven, applied for an ■order for an injunction against the defendant, who alleged that he was Sheriff of the said County, and as such had the 'right to collect the taxes of the County, embracing those the collection of which was claimed by the plaintiff.

This was an action of debt commenced before the adoption of the O. O. P., and brought by the plaintiff as endorsee of the following instrument of writing : $140. On the first day of January, 1862,1 promise to-pay David M. Carter or order one hundred and forty dollars-for the hire of his negro Jim, for the year 1861, and to furnish said negro with good and sufficient clothing. (Signed and sealed.) EBANOIS L. OWEN, (Seal.) Washington, March 12th, 1861.

<p>This was a civil action tried before his Honor, Henry, J., at the Pali Term, 1870, of Rowan- Superior Court, when the plaintiff obtained a verdict andjudgment and the defendant appealed. The pleadings and facts of the case are sufficiently stated in the opinion of the Court.</p>

This was an action of trespass vi et armis brought under •the old practice in the Superior Court of Law for the County of Cherokee, and after issue joined was removed for trial to the County of Macon, and was placed upon the docket of the Superior Court of that County.

This was a motion made by the defendants, after notice to the plaintiff, to have satisfaction of a judgment which the plaintiff had obtained against them in the Superior Court of Pitt County entered of record, upon the ground that they had paid it since it was rendered.

<p>This was a civil action brought by the plaintiff as the administrator of his deceased wife, Ann B. McKay, against the defendants.</p> <p>The facts set forth in the complaint were substantially as-follows: Ebenezer Pettigrew died in 1848, leaving a will, in which he bequeathed to his daughter Ann, the intestate of the plaintiff, twelve thousand dollars, which was charged upon a valuable tract of land called the Magnolia place, devised to her brother, William S. Pettigrew; that William S. Pettigrew afterwards, in 1861, conveyed to his sister another tract of land which his father in his life time had given him, called the Belgrade place, in payment of the aforesaid legacy of $12,000; that in the year, 1863, she being then of full age, and about to marry the plaintiff, it was agreed between her and her brother, that the arrangement made between them in 1861, should be rescinded, and that for the amount (about $14,000) then due of the legacy,, and the interest thereon, he should give his bond and execute a mortgage on the said Belgrade place to secure it, which was accordingly done, and the mortgage duly registered in the proper county: that the contemplated marriage took effect, and in 1864 the wife died, and the plaintiff took out letters of administration on her estate; that afterwards, in 1868, William S. Pettigrew, being very much indebted to many persons, executed to the defendants, Gilliam and Latham, a deed in trust for the payment of all his debts,, and that they took possession of the Belgrade place, and offered it for sale under the provisions of the said deed in trust.</p> <p>The plaintiff demanded judgment: 1st, that the defendant,. William S. Pettigrew should pay to him, what was due upon the bond aforesaid; 2nd, that such bond should be declared to be a lien upon the Belgrade place mortgaged to-the plaintiff’s intestate and then in the hands of Gilliam and'. Latham.</p> <p>The defendants .Gilliam and Latham, the trustees, and’ Williams, one of the cestui que trusts, demurred to the complaint ; assigning as a principal cause of demurrer that by the Act of 1861, cli. 4, sec. 12, the mortgage by William. S. Pettigrew to bis sister, tbe. plaintiff’s intestate, was void because it did not provide for tbe pro rata payment of all tbe debts of tbe mortgagor.</p> <p>At tbe Fall Term, 1870, of tbe Superior Court of tbe County of Chowan, before bis Honor Judge Pool, the demurrer was overruled, and a judgment given for tbe plaintiff, from which tbe defendants appealed.</p>

This was an application made to the Judge of the Superior Court of Caldwell County, for a reeordari, as a substitute for an appeal from a Justice’s judgment. The petitioner was the defendant in the judgment, and stated fully the grounds upon which her application was based.

<p>A civil action to recover the possession of land under the new Constitution and the Code of Civil Procedure, abolishes the fictitious proceedings of the old action of ejectment, but does not surrender its advantages. Hence, in such action no more is put in issue than the right of entry, or the right to the present possession. This is so, at least, when no certain estate is alleged and claimed in the complaint, and put in issue bythe pleading. Quere, whether a judgment, where a certain estate is alleged and demanded, would be an estoppel between the parties as to the right to the estate alleged ?</p> <p>Under the Code of Civil Procedure, section 61, a landlord may be joined as a defendant with his tenant; and by the Act of 1869-70, ch. 193, the tenant and landlord thus defending must each give bond with good security to pay costs and damages if the plaintiff recovers, or if he be hot able to give such bond, he must make affidavit of that fact, and get the certificate of an attorney practising in the Court that, in his opinion the plaintiff is not entitled to recover.</p> <p>When the tenant fails to give such bond, or to swear to his answer when-the plaintiff has sworn to his complaint, the plaintiff may take a judgment against him, but he cannot have an execution against him, until' the further order of the Court which will not be made until after the trial of the issues between him and the landlord defendant, and the damages against the tenant will be matter of enquiry on the trial of such issue with the landlord, or separately as the Court may determine.</p>

This was a petition for an alternativejmúwtítamits, heard before Watts, Judge at the Fall Term, 1870, of Ham?ax Superior Court. The petitioner had sued the Board of Commissioners of Halifax County upon a claim against ¿the County, and obtained a judgment against them.

This was a petition to the Superior Court of Oeange County for a recordari in the lieu of an appeal to take up a number of cases in which the defendant had obtained judgments before a Justice of the Peace against the petitioner.

This was a civil action upon a bond held by the plaintiff for $1760, executed by the defendants Mangum and Webb to the other three defendants, executors of H. Parker, deceased, for the purchase of lands of their testator, sold by them under license from Court.

This was a civil action tried before his Honor, Logan, J., at the Spring Term, 1870, of the Superior Court for Gas-tor County. The complaint was founded upon a promissory note for the payment of money in the following words: Twelve months after date, with interest from date, I promise to pay William Bichards six thousand, six hundred and sixty-two dollars, in the event the Bhodes gold mine continues to prove at the expiration of said time a good gold mine. [Signed.] FEED.

This was a civil action brought by the plaintiffs on behalf of themselves and the other tax payers of Township No. 3, in the County of Craven, against the Commissioners and the tax collector of the said County to restrain them by injunction from collecting certain taxes levied for school pur•poses in the said township.

This was a motion made before Watts, Judge, at theEall 'Term of Wake Superior Court, at the instance of the Public Treasurer of the State, for judgment against the defendant, B. E. Briggs, as Sheriff of Wilson County, and the other defendants, as his sureties, upon his official bond for the collection of taxes. His Honor gave judgment for the plaintiff for the amount claimed and for costs, and the defendants appealed.

<p>Where an injunction is issued under an order that the plaintiff shall give an undertaking with sufficient sureties in a certain sum as prescribed in the C. C. P., sec. 192, it seems that a deposit in money of the sum named, will be sufficient, but whether so or not, the giving by the plaintiff of the required undertaking before the hearing of a motion to vacate the injunction for the want of it, will supply the alleged defect and prevent the injunction irom being vacated on that account.</p> <p>Where a partnership is formed for a definite term which has not expired, the Court will not decree a dissolution except under special circumstances; neither will it, where circumstances render a dissolution inconvient, as where a large operation has been commenced, which cannot be arrested without serious loss. But, where the Court does order a dissolution, it will appoint a receiver upon a disagreement between . the partners in the course of the winding up; and the same rule must apply, where a dissolution has taken place by consent or otherwise, and a serious disagreement arises afterwards.</p> <p>The case of Clement v. Foster, 3 Ire. Eq. 213, cited and approved.</p>

This was a civil action, in which the complaint was for goods sold and delivered to the defendant in the year 1860, but an account annexed to the complaint’ showed that the goods were bought by the defendant and one Joyner. The action was brought in the year 1870, and the defendant appeared, and under the O. O. P., sec. 95, demurred to the complaint for the want of parties, as it appeared that Joyner was jointly hable with the defendant.

<p>This was a civil action tried before his Honor, Judge Pool,, at the Spring Term, 1869, of the Superior Court, of Perquimans County.</p> <p>On the trial the facts proved were substantially as follows The defendant, Jordan, was in possession of a tract of land,, which in May, 1866, he conveyed by a deed in trust to the-plaintiff, and the crops growing on the land that year were-sold by Jordan and the proceeds applied under the plaintiff’s, direction to the purposes of the trust. The same land was-let to tenants for the year 1867, who were to pay the rent in. kind to the plaintiff. In 1861, a judgment was rendered' against the defendant, Jordan, in the Ouonty Court of Gates County, upon which an execution was issued, levied upon the defendant’s said tract of land and returned to the August term of the Court. Successive writs of vend, expos. were then issued, and in September, 1867, the land was sold by the Sheriff of G-ates County, when the execution creditor became the purchaser, and then sold the land to the defendr ant Hollowell, who together with the defendant, Jordan^ took the growing crops then on the land and converted them to their own use.</p> <p>His Honor charged the jury that no interest in the crops of the rents for the year 1867, passed by the Sheriff’s sale, to which the defendants excepted. There was a verdict and judgment for the plaintiff, and the defendants appealed..</p>

This was a proceeding by way of a petition for a mandamus to compel the defendant to issue a certain amount of State bonds to the plaintiff, and a return having been made to the writ of alternative mandamus, the case came on to be heard before his Honor, Judge Henry, at the Fall Term, 1870, of the Superior Court for Forsythe County.

This was a civil action submitted to his Honor, Judge Jones, at the Fall Term, 1870, of Edgecombe Superior Court, upon the following case agreed : On the 1st day of January, 1867, B. B. Nicholson contracted to sell to J. W. Kimball, the defendant, a tract of land for which two notes for $1,000 each, payable on the 1st of January, 1868 and 1869, with interest from date, were given in part payment.

This was an action of ejectment under the former system of procedure, when the following proceedings took place: At a special Term of Craven Superior Court, in June, 1870, this case being reached, the plaintiff’s counsel stated that he was not ready for trial because his associate counsel had just been called to Wilmington, and had inadvertently left all his client’s papers locked up, and the plaintiff could not try without them.

This was an action of debt by the plaintiff as executor .against the defendant, J. M. S. Bogers, as administrator of G. B. Beese, submitted to his Honor, Judge Pool, at the Eall Term, 1870, of Hertford Superior Court, upon the following case, agreed: “ The intestate, George B. Beese, died in Northampton County, on or abount the 18th of June, 1854.

<p>This was a civil action tried before Pool, Judge, at tbe last term of the Superior Court for tbe County of Beetle.</p> <p>Tbe plaintiff claimed tbe bire of a negro slave for the-years 1862 and 1863, and declared upon a special contract and upon tbe common counts. Upon tbe trial tbe plaintiff offered bimself as a witness to prove that tbe defendant’s intestate bad bis testator’s slave in bis possession and employment during tbe years 1862 and 1863, and also tbe value of tbe bire. Tbe defendant objected that tbe plaintiff could not' bimself prove facts from which a contract between the parties could be implied, but tbe Court admitted tbe testimony.</p> <p>Tbe defendant then asked tbe plaintiff as a witness' whether the intestate bad possession, of tbe slave under a. special contract with tbe plaintiff’s testatrix, stating that bis object in proving a special contract, was to defeat a recovery npon tbe common counts. Tbe plaintiff answered in the affirmative, and then proposed to state all tbe terms of tbe contract. Tbe defendant objected to this testimony, but it was admitted, and tbe plaintiff obtained a verdict and judgment, and tbe defendant appealed.</p>

This was an action brought in tbe Superior Court of Cherokee County, by the plaintiff as guardian, against the administrators of the former guardian of his wards for an account. There was a reference for an account, and- upon the return of the report both parties filed exceptions, which came on for hearing before his Honor, Judge Cannon, and from his judgment thereon the plaintiff appealed.

This was a civil action brought to recover the possession of a tract of land, and tried at the Fall Term, 1870, of the Superior Court for the County of Mooee, before his Honor, Buxton, J. The facts material to the proper understanding of the case, as they were proved on the trial, were as follows: The land in controversy belonged at one time to the illegitimate son of Mary Matthews, Daniel W. McNair, who died in the year 1348, intestate and without issue, when his said…

<p>The 31st section of the Act of 1868-’9, ch. 156, entitled an Act in relation to landlord and tenant is unconstitutional, because it professes to confer upon Justices of the Peace jurisdiction to administer the same remedies to purchasers of land under execution against the defendant therein, as to landlords against their tenants, contrary to the 15th and 33d sections of the 4th article of the Constitution, which confer exclusive original jurisdiction upon the Superior Courts of all civil actions, in which the title to real estate may come in question.</p> <p>Those sections of the Act of 1868-’9, ch. 156, which give summary proceedings before Justices of the Peace, in favor of landlords- to recover possession of lands from their tenants who hold over after the expiration of their leases, are not unconstitutional, because in consequence of the doctrine of estoppel the title to the real estate cannot come in question.</p> <p>The cases of Hardy v. Simpson, Busb. 325, and Jordan v. Marsh, 9 Ire. * 234, cited and approved.</p>

This is the case of a claim against the State, presented to the Court at this Term for its recommendatory action under Art. 4, sec. 11 of the Constitution. A sufficient statement of the facts of the case will be found in the opinion of the Court.

<p>After the venire de novo ordered in this cause hy the-Supreme Court at Eall Term, 1869, (see 63 N. O. Rep. 486} it came on to be tried again before his Honor, Judge Mitchell^ at the Eall Term, 1870, of the Superior Court of Alleghany County.</p> <p>On the trial the evidence was substantially the same as it was on the first trial, except that there was no testimony that the plaintiff said that he would take less for the mules for which the bond sued oh was given,, .because they were, intended tor the use of the Confederate government.</p> <p>The defendant’s counsel asked in writing for the following instructions:</p> <p>1. That if the plaintiff at the time of the trade knew off the unlawful purpose for which the defendant Edwards was1 purchasing the mules, although he took no less for them on account of said purpose, he could not recover.</p> <p>2. If the plaintiff at the time of the trade knew of the-illegal purpose for which the defendant Edwards was purchasing the said mules, and if in making the trade the-plaintiff had any design to aid or further said illegal purpose, he could not recover.</p> <p>3. If the plaintiff sold the mules to the defendant, William! Edwards, knowing at the time he was buying said mules as-, the agent of the Confederate government, and on behalf of the said government, to be used in hostility to the government of the United States, he could not recover.</p> <p>His Honor refused to give the first instruction as prayed for, but told the jury that bare knowledge on the part of the plaintiff of the illegal purpose for which the defendant, William Edwards, was buying tbe said mules, would not vitiate tbe bond, and render it illegal and void, unless the illegal purpose formed some part of the inducement to plaintiff in making said contract, or entered in some way into the consideration thereof.</p> <p>His Honor gave the second instruction, and refused the third, substantially repeating what he had said on the first.</p> <p>There was a verdict and judgment for the plaintiff, and the defendant appealed.</p>

This was a suit commenced before a Justice of the Peace and taken, by appeal, to the Superior Court of the County of Jackson, where it was tried at the Fall Term, 1871, before his Honor, Judge Cannon. Upon the trial it appeared that'the plaintiff’s claim was upon a promissory note made by the defendant on the 8th day of January, 1869, payable to William Nichols one day after date, and by him, endorsed to the plaintiff on the 1st day of April, 1869.

This was a petition by tbe plaintiff as administrator of W. B. Thomas, in the Court of Probate for the County of Chatham, for the purpose of obtaining an order to sell the land of his intestate wherewith to pay the debts of the estate.

This was a civil action brought in Edgecombe Superior Court and tried at the Spring Term, 1870, before his Honor, Judge Jones. The complaint alleged that the defendants on the 3rd of December, 1867, received from the plaintiffs nine bales of /cotton, on which they, the plaintiffs, had a lien for $311, /and held as their property for the payment of that amount, .and that the defendants promised to ship and sell it, and out iof the proceeds pay the amount of their said lien.

This was a writ of recorda/ri in the nature of a writ of false judgment, to reverse a judgment given by a Justice of the Peace, and upon the return of the writ in which the whole proceedings were certified, the plaintiff, who was also the plaintiff in the suit before the Justice, assigned for error that the judgment given by the Justice in his favor for the amount claimed by him had the following words added as a part of it — “ to be paid in old North Carolina bank money at…

This was an action of covenant, under the old mode of procedure, upon the following sealed instrument: “One day - after date, we, Angus Martin, Isham Dumas, and A. H. Saunders, as principals, and Parsons Harris and Thomas S. Cotton, as sureties, promise to pay Sarah Heileg, fifteen hundred dollars in gold coin, for value received. July 25th, 1859. A. MARTIN, [Seal.] A. H. SANDERS, [Seal.] J. A. DUMAS, [Seal.] Credit of interest to T. S. COTTON, [Seal.] 20th July, 1861.

This was a proceeding in the form of a petition to rehear a decree made in favor of the plaintiff against the defendant Eobert J. Saunders and others, at the last term of this Court.

<p>Where, upon a lease of turpentine boxes for four years, the lessee covenanted to pay the lessor at the end of each year a certain rate per thousand boxes, and the lessor died before the expiration of the second year leaving a will devising the land, it was held, that the executor could only recover for the rent of the first year, the rent for the remaining years having followed the reversion to the devisees.</p>

At the Spring Term, 1870, of the Superior Court for the County of Stokes, before his Honor, Judge Cloud, the Sheriff of that County had in his hands four executions in favor of Y. W. Perry against Shadrick Morris, and one in favor of S. Westmoreland, to. the use of Mary Moore and others, against the same man, and he made, a return in open Court, and prayed the advice of the.

This was a rule before Logan, Judge, at the Rail Term,. 1870, of the Superior Court of Mecklenburg- County, iu. which there was a judgment against the plaintiff from which-he appealed. The case is fully stated in the opinion of the-Court.

<p>Mhere a sheriff has money in his hands raised under executions in favor of different creditors against the same defendant, and the creditors set up conflicting claims to the money, it is not such a ease as maybe submitted to a judge, without an action under the C. C. P., sec. 815, by the adverse claimants.</p> <p>■Under the former system, if a sheriff had doubts as to the proper application of money in his hands raised under different executions,'be might apply to the Court for advice, which advice would be given upon the facts disclosed in his return; and the Court would, refuse to give it if the sheriff claimed an interest in the fund, or had incurred an independent liability to any of the execution creditors.</p> <p>'The right of interpleader given by the C. C. P., under which a sheriff, who has money in his hands, raised under executions in favor of, diffeiv ent creditors against the same defendant, may bring in the plaintiffs , in the executions to contest their respective claims, was’ intended to apply to a controversy or action properly constituted in Court.</p> <p>The eases of Bamsour v. Young, 4 Ired. 133, Washington v. Sauhdei's, 2 Dev. 343, and Yarborough v. Slate Bank, Ibid 25, cited and approved.</p>

Mandamus to compel the defendants to levy a tax for the payment of the principal and interest, of certain coupons detached from the bonds given by the County of Eichmond and belonging to the plaintiffs.

<p>'Wher’o a husband purchased and paid? for a lot of land, and procured the vendor to convey it by a deed of bargain and sale to a trustee in-trust for the sole and separate use of the wife, “ to dispose of to any person shé may wish' by deed or appointment in.' writing in- the nature of a will,” and she- having died without' disposing of the land by deed or will, it -was held that, as the trust was not declareddorihenand her heirs, there was- a contingent resulting trust in-favor of her husband, which upon his death intestate, before his .wife had descended to his heir-at-law.</p> <p>A devise to a trustee in trust for the sole and separate use of a married Woman with a power1 given to her of appointing the estáte in fee by deed or' will, will vest -the trust’ in her in: fee under the -Rev; Code, oh. 119, se'e. 26, and it:will not be inconsistent with the power of appointment, because without, such power she could not dispose of real.estate by will while she remained a married woman.</p> <p>'The distinction between executory and executed trusts, and the doctrine of powers of appointment given to any person, and particulary to a married woman, discussed and explained.</p>

This was an aetion brought in the Court of Probate for Mecklenburg County by the plaintiff, as executor of James W. Osborne, against the defendants, who were creditors of the estate of the testator.

This was a proceeding in bastardy, in which the defendant put in a special plea to the jurisdiction, and the following: «ase agreed was submitted to his Honor, Olabke, J., at the Fall Term, 1870, of Wayne Superior Court. The relator, Narcissa Applewhite, at the date of the warrant, had been it resident of Wayne county for only six months, she having previously resided and had her domicil in the county of Wilson.

-This was a civil action brought before the Judge of the-Superior Court of Rowan County, at the regular Term, of the Cqurt, and at the Eall Term,. 1870, thereof, a motion, was made-by the counsel for the defendants to dismiss the suit for want of jurisdiction, which was granted by his Honor,. Henry, J., and the plaintiff appealed. The facts are sufficiently stated in the opinion of tbe Court.

This was an application made to the Supreme Court at fits present term to remove a cause pending therein to the Circuit Court of the United States for the District of North Carolina. The case is fully stated in the opinion of the •Court.

This was a proceeding by the plaintiff claiming to be Sheriff of Davidson Comity, against tbe defendant who was alleged to be usurping it. The plaintiff applied in the first place to the Attorney General of the State and obtained his order for the institution of the proceedings, which accordingly were commenced by him in the name of the people of the State and of the plaintiff.

This was a case agreed, submitted to his Honor, Judge Logan, at the Rail Term, 1870, of the Superior Court for the County of Gaston.

This was a civil action brought by the plaintiffs to enjoin the defendant from erecting a dam and mill at a place one hundred and fifty yards below the site of an old mill. At the trial at the Fall Term, 1870, of the Superior Court of Wilson County, before his Honor, Judge Clarke, an order for a perpetual injunction was made, and the defendant appealed. The case is sufficiently stated in the opinion of the Court.

<p>Under the provision in the Revised Code, ch. 54, sec. 23, authorizing a guardian to lend the money of his ward “ upon bond with sufficient security,” he might, upon a loan before the late civil war, have taken a bond secured by a mortgage of slaves, and cannot now be made responsible for the loss of the debt by the emancipation of the slaves.</p> <p>A guardian who, before the late civil war, took from the administrator of the father of his wards certain promissory notes as a part of the effects of his wards, but did not collect them and lend the money upon bonds with sufficient security taken to himself as guardian, is not responsible for the amount of them if they were lost by the events of the war without any neglect or default on his part, but he is responsible for the annual interest which he might have collected and invested for their benefit.</p> <p>A bailee who misuses the thing bailed, thereby converts it to his' own use, and becomes liable for its value, whether any loss occurs from such misuser or not; but that rule does not apply to a trustee, who, when no fraud is imputed, is only liable for a loss resulting from his culpable negligence with regard to his trust.</p> <p>A guardian is not responsible for having received bank notes and Confederate money before March, 1862, and did not invest it for the benefit of his wards, when it is shown that he made a bona fide effort to do so, but was prevented by the events of the war.</p> <p>Imtaking an account of a fund in the hafids of a guardian in which two or more wards are interested, it is proper to state a general account of the whole fund in the end of each year, and also a separate account with each wardfto the end of the same year, crediting the ward with his share of the balance found owing on the general account, and debiting him with any proper debits peculiar to himself. In this way the balance due tojeach ward at the end of each year is ascertained ; and, upon the!death or coming of age of one of them the sum due to him will be [[payable immediately and will cease to bear compound interest.</p> <p>A guardian will be allowed for reasonable counsel fees paid for advice and assistance in the management of his trust, and he may be allowed also for the fees paid to counsel in making a fair defence to the suit brought against him for an account and settlement of his guardianship.</p> <p>Reasonable eommissionsTwill always be allowed to a guardian unless in cases of fraud orfvery culpable negligence. The rate will depend upon a variety of circumstances, such as the amount of the estate, the trouble in managing it, and whether fees have been paid to counsel for assisting him in the management, the last of which will lessen the rate.</p> <p>Commissions should be allowed a guardian on the amount of notes and other securities for debt delivered to the ward upon the cessation of the guardianship.</p> <p>The cases of Christman v- Wright, 3 Ire. Eq. 549, Boyet v. Hurst, 1 Jones Eq. 171, Hurdle v. Leith, 63 N. O. Eep. 597, White v. Robinson, 64 N. C. Eep. 698, Bell v. Bowen, 1 Jones 316, Foard v. Atlantia & N. C. R. R. Co., 8 Jones 235, Ashe v. BeRossett, 5 Jones 299, Boyle v. Reeder, 1 Ire. 607, Emerson v. Malleit, Phil. Eq. 234, Wood v. Brownrigg, 3 Dev. 430, Hester v. Hester, 3 Ire. Eq. 9, and Shepard v. Parker, 13 Ire. 103, cited and approved.</p>

This was a civil action to recover a tract of land, submitted to his Honor, Judge Tourgee, in the Superior Court of Orange County, in January, 1870, upon a case agreed. Calvin G. Strayhorn was the owner of the land in question, and both parties claim title under him.

This was an indictment of the prisoner for the murder of one James A. Gleason, tried at the last term of the Superior Court for the County of Lincoln, before his Honor, Judge Logan. The homicide was alleged to have been committed in the City of Charlotte, but the trial was removed, at the instance of the prisoner, from the County of Mecklenburg to that of Lincoln.

<p>Where, upon, a trial for murder, there was a question whether the prisoner was in the military service of the United States on or before the-17th day of August, 1865, in order to ascertain whether he was entitled to the benefit of the Act of “Amnesty and Pardon,” ratified the 22d December, 1866, and a witness testifying five years after the transaction, said that the homicide was committed “about the last of August, 1865,” it was held, that there was some evidence, which ought to have been submitted to the jury, tending to show that the homicide was committed on or before the 17th day of August, 1865, and that it was error for the Court to instruct the jury that there was no evidence of that fact.</p> <p>The Amnesty Act of December, 1866, does not embrace the case of a. crime such as rape committed prior to the 1st day of January, 1866, and having no connection with war duties or war passions, but extends to the case of a prisoner who had committed a homicide prior to that time, which was directly connected with, and grew out of the-events of the war, and the passions engendered by it, though he was. not acting strietly under authority, or during active hostilities.</p> <p>The cases of the State v. Goolc, Phil Bep. 535, and State v. Blalock, lb. 215, cited and approved.</p>

<p>On an indictment for an affray, a plea of autrefois conrici, before a Justice of the Peace, “ in his own proper township, and that no deadly weapon was used, and no bodily injury inflicted,” is insufficient, when the complaint does not set forth that the offence was committed in the township of the Justice, or that the complaint was made by the party injured, as expressly required by the Act of 1868-9, oh. 178, sub-ch. 4, secs. 6 and 7.</p> <p>A Justice of the Peace may have final jurisdiction of that kind of an affray, which consists of the fighting by consent of two or more persons in a public place, but not that of kind which is committed by one or more persons making a display of deadly weapons with violent or threatening words, or by other similar means, calculated to terrify the people. In the latter sort of eases, as no one in particular is injured, there is no injured party to complain to the Justice, and he cannot have jurisdiction, except to bind over the party to the Superior Court.</p> <p>In the Act of 1868-9, ch. 178, sub-ch. 4, sec. 6, the provision “that the complaint shall not be made by collusion with the accused,” does not apply to the case of a misdeameanor, such as a battery, where there is both a public wrong, and a private injury, and the party injured accepts from the aggressor satisfaction for his injury, but to the case where the complaint is not made bona fide, but under terror, or is induced by some fraudulent practice, or is for some fraudulent end. In such latter case the Justice should decline the final jurisdiction, and bind the offender over to the Superior Court.</p> <p>The case of Stale v. Johnson, 64 N. C. Eep. 681, cited and approved.</p>

This was an indictment for an assault and battery upon one Edward Hall, tried before his Honor, Bwcton, J., upon the plea of autrefois convict at the last Term of the Superior Court of the County of Duplin.

Indictment for larceny, found in the Superior Court of Cumberland County, but removed by tbe defendant to Harnett and tried in the Superior Court of that County at tbe last term, before bis Honor, Judge Buxton.

The defendants were indicted for larceny at common law in stealing a cow, and on the trial at the Fall Term, 1870, of the Superior Court of Bertie County, before his Honor, ■Judge Pool, it was proved that the cow was badly shot, and her ears were cut off.

The defendant was indicted for larceny, in stealing eight pieces of bacon, and was tried before his Honor, Judge Cloud, at the Spring Term, 1870, of Bo wan Superior Court.

The defendant was indicted and tried at the last Term of the Superior Court of Wake County, before his Honor, Judge Watts, for stealing a valise, the property of H. Hoffa, whose given name was to the jurors unknown. On the trial it was proved on behalf of the State by Dr. G. W. Blacknall and others that the owner of the valise stolen by the defendant was H. Hoffa.

This was an indictment against the defendant, in which he was charged in one count with stealing ‘‘one otter confined in the trap of one John D. Parish, of the value of one dollar, of the goods and chattels of the said John D. Parish.” A second count charged that-the otter was dead.

<p>This was an indictment for larceny, in stealing Bank and United States Treasury notes, tried before his Honor, Watts, J., at a Special Term of the Superior Court of Wake County, held in January, 1871.</p> <p>At the trial, it appeared that the defendant was in the employ of one Cook, working for him as a “ field hand ” by the day, week or month; that on a certain occasion, Cook, being very much intoxicated, entrusted him with a roll of money, wrapped up in paper, to take care of for him ; that afterwards the money was found to be missing, and there was evidence tending to show that the defendant had fraudulently appropriated it to his own use.</p> <p>His Honor was requested by the defendant’s counsel to instruct the jury that if he, the defendant, received the money from his employer to keep for him, he was not guilty of larceny, though he subsequently appropriated it to his own use, denying that he knew anything about it. His Honor refused so to charge, but instructed the jury that if the defendant, after receiving the money from his employer to keep for Mm, subsequently appropriated it to his own use with a fraudulent intent, he was guilty of larceny.</p> <p>The jury found a verdict of guilty, upon which a judgment was rendered, and the defendant appealed.</p>

The defendant, Seth Gaskins, was tried and convicted at the last Term of the Superior Courtfor the County of Hyde, before his Honor, Jones, J-., upon an indictment for larceny, where the following sentence was pronounced upon him, “ that the defendant, Seth Gaskins, be imprisoned in the State’s prison for one year, and in the mean time until he is carried there, that he be imprisoned in the County jail.” From this judgment the defendant prayed an appeal to the Supreme Court.

This was an indictment for obtaining goods by false pretences under the statute in the Eevised Code, ch. 34, sec. 67, tried at the Special Term of Wake Superior Court in January, 1871, before his Honor, Judge Watts, when the jury found the following special verdict: “ That the defendant, Eobert Phifer, came to the store of the prosecutor, Leopold Eosenthal, representing himself as the son of one P.Phifer, of New York, and offeringto sell goods for the house of P. Phifer &…

The defendant was tried at the last Term of the Superior ■ Court for the County of Wayne, before his Honor, Clarice, J., upon an indictment for an assault and battery upon one Oogdell.

This was an indictment for an assault with a deadly weapon with intent to kill, tried before his Honor, Cloud, J., at the last Term of the Superior Court for the County of McDowell. The indictment was founded upon the Act of 1868-’69, ch. 167, see. 8, and charged that the assault was made upon the prosecutor, William Eorney, “ with a certain pistol, then and there, loaded with gunpowder, and one leaden bullet,” with intent to kill him.

<p>This was an indictment for an assault and battery, tried before his Honor, Judge Oloud, at the last Spring Term of Rowan Superior Court.</p> <p>The testimony on the trial was that the parties were at a country store; that the defendant approached the prosecutor, and said, “ I once thought we were Mends, but I understand you have said thus and so about me, and you have got to take it back. ” The prosecutor said in reply, “ that he would not take back anything that he had said,” whereupon, the defendant put his hand, opened and flat, on the prosecutor’s breast and pushed him back some steps, when the prosecutor fell over a flour barrel.</p> <p>This was the only testimony, and his Honor told the jury that if they believed it, the defendant was guilty. The jury returned a verdict of guilty accordingly, and the defendant appealed.</p>

This was an indictment, in which the defendants, a father and three sons, were charged in three counts with, first an affray, secondly a riot, and thirdly an assault upon one Charles Odom.

This was an indictment tried at the last Term of Edgecombe Superior Court, before his Honor, Judge Jones.

<p>Indictment for tearing down a dwelling house, under the Act in the Eevised Code, ch. 34, sec. 103, tried before his Honor, Judge Mitchell, at the Fall Term, 1870, of the Superior Court for the County of McDowell. The defendant was convicted and appealed from the judgment rendered against him. The facts are sufficiently stated in the opinion of the Court.</p>

The defendant was indicted and tried before Cloud, J., at the Eall Term, 1870, of the Superior Court for McDowell County, under the Act of 1868-’9, ch. 213, entitled “An Act to prohibit the sale of intoxicating liquors within three miles of that part of the Western North Carolina Bail Boad from Morganton to the western terminus of the road at Ducktown and Paint Bock.” The jury found a special verdict “that the defendant sold spirituous liquors as alleged in the bill of…

Contempt of Court by David Schencfe, an Attorney of this ■•State, adjudged \>jZogan, J., at Spring Term, 1871, of Gaston • Superior Court.

This was an appeal from the j udgment of Hon. Edward Ha/ntweTl, professing to act therein as Judge of a Special Court for the city oí Wilmington. The defendant was tried by Edward Cantwell on the 12th. •day of June, 1871, on the charge of assault and battery, Mr Cantwell claiming to have the right to try him by virtue of of his office of Judge for the Special Court for the city of Wilmington.

Crvm Action, tried before Pool J. at Spring Term, 1871, of Chowan Court. The plaintiff in his complaints alleged that the defendants were indebted to his intestate for goods sold and delivered, money advanced, and labor performed, as shown by the books of plaintiff’s intestate, and from entries made by said intestate. The defendants in their answer 'denied the allegation of the complaint.

<p>An Administrator is guilty of gross lachea, who sells property on a credit, and takes no other security than the bond of the purchaser.</p>

<p>A. brings an action of replevin for the recovery of an Ox; during- thependency of the suit he is adjudged a bankrupt upon his own petition, and the Ox is allotted to him as a part of his exemptions under the? bankrupt law: Held, that the legal title to the Ox remained in A, and that it had never vested in the assignee.</p>

This was an action of debt brought under the old system, and tried before Pool, J., at Spring Term, 1871, of Hertford Superior Court. The plaintiff.declared on a single bill, the execution of which was admitted; the defendants relied upon the pleas, of fully administered and no assets.

This was an appeal from an alleged judgment rendered by the Mayor of Edenton against the defendants for a violation of a town ordinance, and known as Ordinance No. XVI — in which it is declared that “ no bar room or house where liquors are sold •shall be opened on the Sabbath,” «fee. The defendants were fined twenty-five dollars and costs, and the said appeal was tried before Pool, J., at Spring Term, 1871, of Chowan Superior ■Court.

Thiswas a civil action tried before Pool, J., at Spring Term, 1871, of Hertford Superior Court. The plaintiff declared upon a simple bond which defendant owed him. The defendant answered that he had paid off and discharged said bond. At the trial Term, the defendant, by leave of the Court, filed a supplemental answer in which he alleged that the plaintiff and another person, gave their single bond to one Robt.

<p>TheJCode of Civil Procedure requires no surety on an appeal from a Justice’s judgment.</p> <p>'On anjapplication to a Justice of the Peace for a suspension of execution after|a recovery by a landlord against his tenant; the Justice has a discretion as to the sufficiency of the surety, which a Judge will not review, in the absence of any suggestion that the Justice acted dishonestly or capriciously.</p> <p>Before an application for a recordari can be entertained, petitioner must aver that he has paid, or offered to pay, the Justice’s fees.</p> <p>An order for a recordari should be accompanied with an order for a supersedeas and suspension of execution.</p> <p>Although a tenant cannot dispute the title of his landlord, yet, in an action for the recovery of realty by an assignee in bankruptcy against the tenant of the bankrupt, he may dispute the assignment.</p>

Motion to set aside a judgment heard before Pool, J., at Spring Term, 1871, of Chowan Superior Court. The facts were, that at Fall Term, 1869, the present plaintifF upon the relation of the State of North Carolina obtained judgment against the defendant White and others, on the official, bond of said White as Sheriff of Chowan County.

Larceny tried before Russell, J., at Spring Term, 1871, of Bladen Superior Court. The indictment charged the defendant with stealing a barrel of turpentine, the property of T. D. Love and David H. Ray.

<p>Where a feme covert commits an assault and battery in the presence oi • her husband, it is presumed, in the absence of evidence to the contrary, that she did it under his constraint.</p> <p>This presumption of law, however, may be rebutted by the circumstances appearing in evidence, and showing that, in fact, the wife acted voluntarily, and without constraint.</p> <p>SmMe, That this principle applies only to misdemeanors committed by the wife in the presence of her husband.</p>

Motion to dissolve an injunction heard beiore Clarke, J., at .'Spring Term, 1871, of Wayne Superior Court. The following facts were found by the Court: 1. That on the 28th April, 1870, the plaintiff borrowed from ■•defendant. Spicer, three hundred dollars, for which he gave Ihiur three promissory notes for one hundred and forty-five dollars and sixty cents each, payable to said Spicer, or order, due .and payable Jan. 1st, 1871.

This was a petition for a peremptory mandcwnm heard before Buxton, J., at Spring Term, 1871, of Cumberland Superior Court. The petioner had heretofore obtained judgments in sixteen ■cases against the defendants, amounting in the aggregate to several thousand dollars.

This was an action of Debt brought under the old system, tried before Bussell, J., at Spring Term, 1871, of Bobeson Court. The plaintiff declared upon a single bill executed by the defendant and payable to the plaintiff as Public Treasurer of North Carolina, and his successors in office, the consideration whereof, was a lot of cotton sold by the plaintiff, as Treasurer aforesaid, to the defendant.

<p>Action, of Debt on tlie official bond of Daniel Galbraith, Constable, tried before Buxton, J., at Spring Term, 1871, of Cumberland Superior Court.</p> <p>The relator of the plaintiff declared on a bond dated Eeb. 23rd, 1857, and assigned as breaches: failing to collect; collecting and failing to pay over”; and not returning the claims, being sundry notes, and other written evidences of indebtedness on different persons, described in four different receipts, given by the defendant, Galbraith, to the relator of the plaintiff; Said receipts are dated respectively in February, April, June and July, 1856, all in the usual form “ to collect or return.”' Pleas : General issue, Stat. Lim., and Payment.</p> <p>The bond sued on, was read in evidence without objection. The relator of plaintiff proved that the defendant, Galbraith, had acted as Constable for two years successively, to wit: for 18'56s and 1857; that the claims described in the receipts were placed in his hands at the date mentioned therein, and had never been returned to relator of plaintiff. There was evidence of the solvency of some of the claims in the years 1856 and. 1857-</p> <p>The defendants insisted :</p> <p>(1.) That the proof, by the 'receipts, that the claims were ia the hands of the Constable in 1856, did not establish the fact that the claims were in his hands in 1857, being the time of the alleged breach; and that a breach of the bond of 1856, was no breach of the bond of 1857 ;</p> <p>(2.) That the statute of limitations protected the bond from recovery.</p> <p>The defendants introduced the records of a suit instituted by the relator of the plaintiff against the defendants, m which judgment was rendered on the present bond sued on, for $134-70 damages, assessed at Fall Term, 1858, and an execution thereon had been returned to Spring Term, 1859, marked “paid and satisfied.” The evidence was that this judgment was obtained upon claims due relator of plaintiff, other than the claims sued on in this case.</p> <p>The defendants insisted that the recovery in the former suit was a bar to the present action.</p> <p>His Honor instructed the jury that the relator of the plaintiff was entitled to recover the amount of all the claims embraced in the four receipts, which they were satisfied from the evidence, were good and collectable during the year 1857. Defendants excepted. Yerdiet and judgment for plaintiff. Rule, &c. Appeal.</p> <p>cited, State r. Johnson, 7 Ire. 77. State v. Wall, 8 Ire. 11, Ih. 9 Ire. 20.</p>

This was a proceeding by motion under Eev. Code, chap 31, sec. 129, tried before Cloud, J., at Spring Term, 1871, of Forsythe Superior Court. It was agreed that his Honor should pass upon the facts, which he found to be as follows: (1.) The bond upon which the motion is based is in the following words, to wit: “ Twelve months after date we or either of us promise to pay Í).

This was an action of trespass vi et armis brought under the .©Id system, and tried before Towrgee, J., at Spring Term, 1871, of Person Superior Court. The plaintiff’s declaration alleged that defendant had killed an ass belonging to the plaintiff, to his damage three hundred dollars. The facts were, that the plaintiff bought the animal from one Barnett, with a full knowledge that he was dangerous and had a propensity for injuring and killing stock.

This was an action on the case brought under the old system, tried before Henry, J., at Fall Term, 1870, of Forsyth Superior Court. The plaintiff npon the trial offered in evidence a note executed by the defendant to plaintiff in which the defendant promised to deliver the plaintiff a quantity of wheat; and claimed dam•ages for the non delivery of the wdieat in accordance with said •contract. Plea, general issue.

<p>'ITo constitute an “ order for the delivery of gopds,” within the meaning of Rev. Code, chap. 34, sec. 59, a forgery, there must appear to be a drawer, a -person drawn upon, who is under obligation to obey, and there must appear-to be a person to whom the goods are to be delivered.</p> <p>¡If the paper writing set forth in the indictment as a forgery does not contain these requisites, there cannot be a conviction for forgery under such statute.</p> <p>‘The writing set forth in the indictment is such an instrument as will con-stitute at common law a forgery, hence, the conclusion “against the ■form of the statute ” may be rejected as surplusage, and under the conviction in this case the defendant may be punished for a misdemeanor, as at common: law.</p>

Rule upon the defendant Robert W. Hardie, Sheriff of Cumberland County, to show cause why money in his hands, the proceeds of sale of personal and real property of the Bank of Fayetteville, sold under executions, should not be applied to the payment of the executions in favor of plaintiff heard before jBuxton, J , at Spring Term, 1871, of Cumberland Superior ■Court.

This was an indictment for larceny, with a count for receiving stolen goods, tried before Pool, J., at Spring Term, 1871, of Bertie Superior Court. The defendant had pleaded “ not guilty,” when the jury wasempanneled, and three witnesses had been examined on the' part of the State.

Action for the recovery of realty, tried before Tourgee, J., at Pall Term, 1870, of G-uilkord Superior Court. The plaintiff alleges in her complaint, that she is seized for fife of certain premises, describing them with sufficient certainty. In article II of the complaint, she alleges that the defendants .are in possession thereof and withhold the same from her.

This was a civil action tried before Buxton, J., at Spring Term, 1871, of Cumberland Superior Court. The summons was originally in the name of Randal McDaniel, and the complaint alleged the non-payment of two years rent for a set of mills in Fayetteville, leased by plaintiff to defendants, from 1st of November, 1862, to 1st of November, 1864.

Motion to dissolve an inj unction heard before Cloud, J., at Spring Term, 1871, of Yadkin Superior Court. The plaintiffs gave their single bill to the defendant Elisha Messick during the years 1857, or 1858, for fourteen hundred dollars, in consideration of a family of negroes sold by the defendant, Elisha Messick, to the plaintiff Joseph Sparks.

Civil action tried before Logan, J., at Spring Term, 1871, of G-aston Superior Court. The plaintiffs are two of the next of kin of the defendant’s intestate, and brought this action to recover their distributive share of said estate.

Debt tried before Mitohett, J., at Spring Term, 1871, of Iredell Superior Court. The defendant relied upon the plea of fully administered and no assets, Retainer. It was referred to the clerk to take au account of the administration of the estate of intestate ia the hands of the defendant.

Eule for an amercement against the Sheriff of Cumberland ■County, heard before Buxton, J., at' Spring Term, 1871, of Cumberland Superior Court. The plaintiff placed in the hands of the defendant, as Sheriff, .an execution against one Duncan Shaw, based upon a judgment which was obtained upon an ante-war debt. The Sheriff returned thereon, “Deceived April 11th, 1871.

Indictment for receiving stolen goods tried before Cloud, J., at Spring Term, 1871, of Rowan Superior Court. The indictment contained two counts, one for larceny, the other for receiving stolen goods.

The prisoners were indicted for the murder of one Thomas Price, (Colored) tried before Tour gee, J., at Spring Term, 1871, of Guilford Superior Court.

Indictment for larceny tried before Cantwell, J., of the Special Court for the city of Wilmington. The evidence was that the defendant had committed larceny of value less than twenty-five dollars, — that it was committed within the corporate limits of the city of Wilmington, that complaint was made by the accused within six months from the commission of said offence, and without collusion between the accuser and the accused.

Motion to arrest judgment on an indictment for an assault and battery with a. deadly weapon heard, before M/itehell, J., at Spring Term, 1871, of Wilkes Superior Court. The facts of this ease sufficiently appear in the opinion of the Court.

Indictment for a forcible trespass tried before Logan, -/., at Spring Term, 1871, of Cleaveland Superior Court. The defendant and one Newton were jointly indicted, and at a former term of the Court, the latter came into Court, and submitted.

This was an indictment for rape, tried before Logan, J., at Spring Term, 1871, of Gaston Superior Court. The prosecutrix testified that she had been thrown down by the prisoner, and that he then had his will with her and effected a penetration of her person, and in consequence thereof she was rendered very sore in her body, that she was aged sixteen years, and that no blood was found upon her person or clothing.

This was a special proceeding begun April 8th, 1869, by-summons and made returnable before the Clerk of the Superior Court of Alamance County in twenty days after service, and was returned duly served on all except James Mooie and Frances Sellers. , The plaintiffs on April 12th following, filed this complaint. The party defendants served filed their several answers in the clerk’s office.

<p>This was a civil aefion brought by the plaintiff against the late Clerk of the Superior Court of Burke County on his official bond, and was tried before his Honor, Judge Mitchell, and a jury, at the Fall Term, 1870, of Bukke Superior Court.</p> <p>The facts developed by the testimony were these:</p> <p>The plaintiff recovered judgment at August Term, 1861, of Supreme Court against one McKesson for about $1,700 and interest. Execution issued thereon for $1,848.34, with interest on $1,486 from 22d November, 1860, returnable to Fall Term, 1861, of Burke Superior Court. No other execution was ever issued. On the 5th day of April, 1862, the defendant, W. S. Sudderth, then Clerk of the Superior Court of Burke County received from the defendant in the execution, McKesson, $2,000 thereon, in confederate money. The words “ paid — see execution docket,” were endorsed on the execution by said Sudderth. The plaintiff had before the receipt of the confederate money by the Clerk, notified him orally not to receive payment of the -execution in anything but specie or greenbacks. The execution docket had been destroyed and there was no evidence of its contents as to the execution. The plaintiff demanded payment of his execution from the defendant Sudderth, while he was still Clerk, but the date of the demand was not shown. The defendants objected that the action should have been brought in the name of the State, but his Honor deemed the objection waived, and that objection was not insisted on in this Court. On behalf of the defendant, his Honor was requested to instruct the jury, that if the defendant Sudderth had been notified not to receive anything but gold or greenbacks, and in violation of such order did thereafter receive confederate money, that it amounted to no satisfaction. This instruction was declined by the Court and the defendants excepted.</p> <p>The defendants requested his Honor to instruct the jury as above, with the addition that if the defendants in plaintiff’s execution were still good for the debt, the plaintiff’s damages would only be nominal. This request was also declined. The •defendants’ counsel requested his Honor to instruct the jury that if all the facts in evidence were true, plaintiff could not recover, which instruction his Honor also declined, but charged the jury that if the plaintiff. hadtgiven the defendant, W. S. Sudderth, notice not to receive, anything in payment but specie or the lawful currency of the United States, and he afterwards did, receive confederate money .in payment, that, the plaintiff was entitled to recover, and the. measure of damages was the amount received by the defendant, W. S. Sudderth.</p> <p>Under these instructions there was a verdict for the plaintiff Rule for, a new trial. Rule discharged, judgment and appeal by. the defendants.</p>

This was a petition filed by the plaintiff, as administrator of Elizabeth Hawkins, deceased, to sell certain realty belonging to his intestate, to make the proceeds thereof assets in the payment of debt, heard before Logan, Jat Spring Term, 1871, of Eutiierford Superior Court.

The plaintiff's held two single bills on the defendants, the principal of which amounted to less than two hundred dollars, and issued separate warrants on each, on the 22d of September, 1869.

This was an indictment against the prisoner for killing Phillip Weaver, tried before Logan, J., at Spring Term, 1871, ■of Lincoln Superior Court. The evidence was as follows : Charles McLeod, a witness for the State, testified that when lie first saw the prisoner, the latter was near a crib about three hundred yards distant from witness, and that the deceased was at the fence-which enclosed the barn yard, and near the prisoner, who went to the fence. Heard rocks thrown.

This was a scire facias issued from the County Court of Ire-dell, tested oí May Term, 1868, and tried before Mitchell, Ji, at Spring Term, 1S71, of Iredell Superior Court.

Motion to set aside judgment heard before Watts, J., at Spring Term, 1871, oí Wake Superior Court. The facts are, that the defendant acknowledged service of the summons in this action, and agreed to waive the question as to the suit being brought in a county other than the one through which the defendant’s road ran. The plaintiff filed no complaint, nor did the defendant make any appearance. At the return term the plaintiff took judgment by default.

<p>Township trustees have no authority to contract for building bridges,, when such a contract is entered into without the sanction and supervision of the County Commissioners; it is a nullity.</p>

This was a motion to transfer the cause to the Circuit Court of the United States for the District of North Carolina, heard before Logan J. at Spring Term 1871, of Mecklenburg Superior Court.

The defendant was indicted under the 1st section of chapter 209, act of 1869, entitled “ an act to protect married women from the wilful abandonment, or neglect of their husbands,” tried before Cloud, J., at Spring Term, 1811, of Rowan Superior Court. The facts, were that in 1866, the defendant wilfully abandoned his wife, without providing her with adequate support, since which time he has never lived with her, nor in any manner provided for her maintenance.

This was a civil action tried before Buxton, J, at Spring 'Term, 1871, of Union Superior Court. The relator of the -plaintiff brought suit on the bond of the defendant, ’Simpson, who had been his guardian. After issues had been joined upon the pleadings filed, there was an order made directing-the Clerk of Union Superior Court, to take the account of the defendant, Simpson, as guardian of the relator of thp plaintiff, and report to the next Term of the Superior Court.

Larceny, tried before Buxton, J., at Spring Term, 1873, of Anson Superior Court. The State offered to introduce as a witness one David Dunlap, a co-defendant; who had entered his submission at a previous Term of the Court. The submission had been received by the Court, and the judgment thereon suspended. His Honor admitted the testimony, to which defendant •excepted. Yerdict guilty. Rule, &c. Judgment and appeal.

This was a civil action tried before Buxton, J., at Spring-Term, 1871, of Union Superior Court. The claim sued on was a sealed note payable to plaintiff in specie, and executed in January, 1867.

Indictment for forcible trespass, tried before Logan, •/., at Spring Term, 1871, of Lincoln Superior Court. The facts are, that the defendant had received from the Sheriff of Lincoln County a deputation to collect certain taxes which were mentioned in said deputation, including the taxes due from one Nancy Greenhill, for the years 1869 and 1870.

This was an indictment for assault and battery tried before Clarice, J., at Spring Term, 1871, of Northampton Superior Court. The defendant offered as a witness one Eorrest, who having conscientious scruples as to swearing upon the Bible, was permitted to affirm as prescribed by law. There was no evidence as to the place of nativity of the witness, or the occupation in which he was engaged.

This was an action on the case brought under the old system, :and tried before Clmcd, J., at Spring Term, 1871, of Eowan ■Superior Court. The plaintiff in his declaration alleged that by reason of the negligence of the defendant in failing to repair a certain bridge •over their track where it crossed a certain public road, his horse had fallen through, producing a fatal injury, while being ■driven by him in a wagon across the bridge.

Civil action for money demand, tried before Camion, J., at Spring Term, 1871, of Macon Superior Court.

Application to vacate an attachment heard at Chambers, before Watts, J. The facts of the case are sufficiently stated in the opinion of the Court.

<p>Injunction heard before Clarke, J., at Chambers, April 27th, 1861.</p> <p>The facts of this case sufficiently appear in the opinion of ithe Court.</p>

Attachment for contempt heard at Chambers before Watts, J. In the case of Bear v. Cohen, ante 511, his Honor directed that the goods seized under an attachment by the Sheriff of Wayne County, should be delivered to the defendants; and it appearing to the Court, that the Sheriff) who is the, petitioner, had ■failed to re-deliver the goods he ordered at Wilson, on the 24th of May, 1871, “ That the Sheriff, Rhodes, pay into Court two 'thousand dollars for the use of the…

<p>When a debtor conveys realty to a creditor by deed absolute in appearance, and at the same time gives his note for the amount of such indebtedness, and takes a bond for title upon the payment of such note: Held, that such transaction is a mortgage.</p> <p>To determine whether a transaction is a mortgage or a defeasible purchase, it will be regarded as the former,'if at the time of the supposed sale the vendor is indebted to the vendee, and continues to be such .with a right «to a re-conveyance upon the payment of such indebtedness.</p> <p>Mason v. Hearne, Bus. Eq. 88, cited and approved.</p>

Money demand fried before Mitchell, J., at Spring Term, 1871, of Iredell Superior Court. The plaintiff’s testator held a promissory note on Clark, Shuford & Co., for $1,:625, executed and due the 30th of January, 1858. The defendant, A. Clark, is the executor of A. Clark, ■Sr., who was a member of said firm. The defendants in their answer did not deny the partnership nor the execution •of the note, but relied upon the-statute of limitations.

This was an action of assumpsit begun in the County Court • of Guilford County, wherein the plaintiff recovered a judgment against the defendants, Westbrooks and Albright, from which the said defendants appealed to the Superior Court of law of Guiltord County, and gave as sureties to their appeal ‘bond the defendants, ¥m. A. Donnell and ¥m. M. Albright, tried before Tcmrgee, J., .at a special ¡term of Guilford Superior Court, held in August, 1870.

<p>This was a motion to amerce George W. McKee, the Sheriff of Gaston County, for failure to make a lawful return of a venditioni exponas issued to him in the above stated cause upon the following facts, as appears from the original venditioni exponas and the endorsements thereon issued to said Sheriff from Spring Term, 1870, and returnable to Fall Term, 1870, commanding him to sell two certain tracts of land therein mentioned; that the same came to the hands of the Sheriff as appears from his endorsement on the 24th of June, 1870. That at Fall Term, 1870, he returned the same to the Clerk’s office, with the following endorsement: “November 8th, 1870, The seventy acre tract sold, and money applied to an execution in favor of W. W. Grier and D. M. Alexander, it having the priority. The other tract not sold because of the homestead law, and because the plaintiffs did not pay, or tender the fees due for laying off the homesteadheard before Logan, J., at Spring Term, 1871, of Gaston Superior Court.</p> <p>The Court considering said return sufficient in law, refused the motion, from which ruling the plaintiffs appealed.</p>

Indictment for assault, tried before Mitchell, J., at Spring ‘Term, 1871, of Alleghany Superior Court. The assault was charged to have been on one Williams, who testified that the defendant came up to where he and other persons -were standing, and called witness to come to one side and talk with him. That witness refused to go, when defendant cursed Timq swearing he would make him come.

<p>If a partner purchases property with the partnership effects, and sells said property to, a Iona fide purchaser without notice, the other partners cannot follow the property in the hands of such purchaser.</p>

Motion to dissolve an injunction, heard before Watts, J., at Spring Term, 1871, of Granville Superior Court.

Indictment for fornication and adultery tried before Cloud, J., at Spring Term, 1871, of Surry Superior Court. The jury found a special verdict that the defendants were formerly slaves and were married in 1864, according to the custom which then prevailed among slaves, and from that time commenced cohabiting together, passing, and recognizing each other as man and wife, which continued up to the finding of this indictment.

Larceny tried before Waits, J.., at Spring Term, 1871, of 'Granville Superior Court. The indictment, charged the property stolen by the defendant as a steer, and the proof showed that it was a lull. The Jury found a special verdict to this effect and asked the opinion of the Court, &e. Thereupon his Honor adjudged that •defendant was not guilty, from which the Solicitor for the State appealed.

, at Chambers. The plaintiff declared on the following promissory note: “ On or before January 1st, 1866, I promise to pay LewisHilliard, or order, one hundred dollars, for hire of negro girl, Cely, for the years 1864 and 1865. This money to be paid in current funds at the time the note falls due.” Dated July 28th, 1864. The Justice admitted parol evidence as to the motives the defendant had in hiring the girl, and as to her value.

Civil action tried before Logan, J., at Spring Term, 1871, . of Gaston Superior Court.

This was a Rill in Equity, filed in 1866, and returnable to Fall Term of Iredell Court, heard before Mitchell, J, at Spring ‘Term, 1871, of Iredell Superior Court.

This was a civil action tried before Tourgee, The action was brought upon a promissory note payable to T. S. Lutterloh for $699, negotiable and payable at the Branch Bank of Cape Pear in Fayetteville, at the Bank of Fayetteville, or at the Bank of Clarendon at the option of the holder, dated Feb. 26th, 1861, and payable eighty-eight days after date.

Motion to dissolve an attachment under the Bankrupt Act of Congress heard before Watts, J., at Spring Term, 1871, of Craven Superior Court. The defendant is a foreign corporation created by and under the laws of Rhode Island. It did business and owned property in the counties of Craven and Carteret in this State. The plaintiffs are non-residents.

<p>Civil action tried before Jones, J., at Spring Term, 1871, of Beaufort Superior Court.</p> <p>The facts of this case sufficiently appear in the opinion of the* Court.</p>

Civil action tried before Tourgee, J., at Spring Term, 1871, -of Chatham Superior Court.- The action was brought upon the official bond of the defendant Merritt, as Clerk and Master for Chatham County. 'The plaintiff alleged in his complaint that at Spring Term, 1866, of the Court of Equity for Chatham County, he obtained a decree against one G. B. Guthrie for $417, with interest from ^September, 1862.

Special proceedings to recover damages for the ponding back water on the plaintiff’s lands, so as to obstruct the mill wheels of the plaintiffj on an appeal from the Superior Court of Union County, tried before BiKctpn, J., at Spring Term, 1871, of Union Superior Court.

Civil action for services rendered the defendant, and for work and labor done by the plaintiff’s intestate, tried before Cloud, J, at Spring Term, 1871, of Rowan Superior Court. The facts in this cause, and the exceptions to the rulings of liis Honor sufficiently appear in the opinion of the Court.

Motion to set aside an order of the Clerk of the Superior Court of Wayne County, granted in a civil action for claim and •delivery of personal property, heard before Watts, J., at Chambers, in Wilson County. The plaintiff sued out process against the defendant, for claim and delivery of certain specified articles, from the Superior Court of Wayne.

Motion to- vacate a judgment, heard before Gloud, J., at-Spring Term, 1871, of Rowan Superior Court, upon the following facts: The action was made returnable to Eall Term, 1861, oí Rowan Superior Court, and judgment by default and enquiry was rendered at Eall Term, 1863. It appeared from the evidence that the defendants wrote to-the late N. N. Fleming, then an attorney of the Salisbury bar,, and employed him to plead to the suit, stating that they had a meritorious defence.

Indictment for wilfully burning a barn containing grain^ tried-before Toiorgee, Jat Spring Term, 1871, of Chatham Superior Court. The defendants with Henderson Nash, Hardy Stewart, Luke-Olive and Wyatt Boylan, wrere jointly indicted for wilfully and feloniously setting fire to and burning a barn, containing grain,, the property of one James IT. Minims.

Bill in Equity, transferred from tlie Court in Equity of Wake County, at Spring Term, 1868. The complainant alleges in his hill that he has an’account against the defendant’s testator, John Hutchins, for medical services rendered, commencing in the year 1834, and ending in February, 1863, amounting to the sum of eleven hundred and forty-eight dollars and seventy cents.

, at Bpring Term, 1871, of Guilford Superior Court. The facts were that one ~W. D. Ross obtained a judgment ¡at Spring Term, 1869, of Guilford Superior Court, against Robert D. Thorn, andhadtlie same docketed the 1st'of March, 1869. Four other judgments were rendered at the Fall Term, 1869, oí said Court, against the said Eobert D. Thorn. James £5.

Civil action, tried before Logan, J., at Special Term of Bjjhcombe Superior Court, held in January, 1811. The relator alleged in his complaint: 1st. That he was duly elected Sheriff of Buncombe County, in April, 1868, for two years from 4th August, 1870. 2nd. That on the 5th September, 1870, the defendant usurped the said office, and has ever since unlawfully exercised and withheld the same from relator.

This was a money demand tried upon a case agreed before Watts, J. at Spring Term, 1871, of Granville Superior Court. The facts are that on the 4th September, 1866, the déféndants being partners in trade, executed in the partnership name of Burwell & Parham their promissory note for $1,213.51, payable on the 25th December following to P. R. Merryman. On the 1st December, 1866, the payee for value endorsed said note to one T. O. Hughes.

at Spring Term, 1871, of Halifax Superior Court. The plaintiff had obtained an injunction against the defendant in a suit theretofore pending in the .Superior Court oí Halifax County; and afterwards in the Supreme Court of this State, vide Hyman v. JDevereux, 63 N. C. 62i, there was a judgment for a dissolution of the injunction.

The defendant was indicted for larceny, in stealing an ox, the property of James Banks, tried before Pool. J., at'Spring 'Term, 1871, of Pasquotank Superior Court.

Appeal, from the ruling ot the Clerk of the Superior Court of Richmond County, heard before Buxton, J., at Spring Term, 1871, of Richmond Superior Court. This was a special proceeding instituted before the Clerk of the Superior Court of Richmond County, for an account and settlement of the estate of the plaintiffs Baseomb, John P. and Virginia Covington, who were formerly wards of Mial Wall, deceased, and the defendants, who are his executors.

<p>Where the land of an infant was sold for partition in 1856, under a decree of the Court of Equity, and the Court decreed “ that the Master proceed to collect the purchase money, tax the costs incurred, and pay over the residue to the parties entitled, and upon the payment of the purchase money the Master execute title to the purchaserHeld, that the payment of the principal part of the purchase money and a note given to the Guardian of the infant for the residue, was not a compliance with the decree of the Court.</p> <p>In such a case the plaintiff has a lien upon the land for the payment of the residue of the purchase money, and is entitled to a decree for a resale of the land for the payment thereof.</p> <p>Where the purchaser went into bankruptcy, his assignee only acquired the interest which the bankrupt owned.</p> <p>.A purchaser at a Sheriff’s sale, where the defendant in the execution has the legal title, succeeds only to the rights of the defendant in the execution, and is affected by all the equities against him.</p> <p>■Singletary v. Whitaker, Phil. Eq. 77; Freeman v. Hill, 1 D. & B. Eq. 339; Polk v. Gallant, 2 D. & B. Eq. 895; Carr v. Fearington, 63 N. C. 560, (.cited and approved.</p>

Civil action tried before Logan, J., at Spring Term, 1871, of Lincoln Superior Court. The facts are that the plaintiff was duly elected Sheriff of Lincoln County in 1868, and gave the bonds as required by law. In 1869, he likewise renewed his bonds. In 1870, he-offered to renew his bonds as required, but the defendants who-are the Commissioners ot said County, refused to accept said bonds, for the reason that the plaintiff’s term as Sheriff had expired.

, at Spring Term, 1871, of Halifax Superior Court. This was an action for a balance due on a bale of cotton, which the plaintiff alleged had been sold by the defendant for him.

Assault and battery, tried before Cloud, J., at Spring Term, 1871, of Rowan Superior Court. The defendant relied upon the plea of former conviction and judgment before a Justice of the Peace. The plea averred that there had been a literal compliance with all the requirements of sub. ch. 4, sec. 6 of ch. 178, Acts of 1869.

<p>’The decisions of Justices of tlie Peace upon questions of fact are not the subject of review.</p> <p>Damages to realty by wilful carelessness cannot be set up by way of counter claim or set off to an action of contract for the payment of money.</p> <p>It is incumbent upon the party excepting, when the error alleged consists in rejecting evidence, to show distinctly what the evidence was, in order that its relevancy may appear, and that it may be seen that he has been prejudiced by its rejection.</p> <p>Sec. 17 of chap. 227, acts of 1869-’70, does not apply to Justices’ judgments which do not exceed the sum of twenty-five dollars.</p> <p>Whiteside v. Twitty, 8 Ire. 431; State v. Worthington, 64 N. C. 594; Bland v. O'Hagan, lb. 471, cited and approved.</p>

Action on the case brought under the old system, and tried before Cloud, J., at Fall Term, 1870, of Buncombe Superior Court. The plaintiff declared in two counts : 1st. That the defendant had maliciously prosecuted him for perjury, and without probable cause. 2d. That the defendant charged the plaintiff with having sworn to a lie, as a witness in a suit pending in the Superior Court of law of Buncombe County, where John Sumner was plaintiff, and Eli Aslily was defendant.

Civil action tried before Cloud, J., at Spring Term, 1871, oi Davidson Superior Court. The plaintiff alleged in his complaint that defendant hired him to keep his mill from the 24th of December, 1868, to the 24th of December, 1869, and that defendant discharged him without sufficient cause on the 24th of May, 1869. The suit was instituted in August, 1869, and plaintiff asked for damages up to, and including the entire time for which ho had been hired.

Civil action, tried upon a case agreed ‘before Logon, J., at Spring Term, 1871, of Lincoln Superior Court. The action was brought returnable- to Fall Term, 1869, to recover from the defendants, who are the executors of Jacob Eamsour, deceased, the distributive share of said estate due to the plaintiff, as the executor of A. A. Eamsour, deceased, who was one of the next of kin and legatees of the defendants’ testator.

Civil action tried upon a case agreed before Mitchell, Jat ‘Spring Term, 1871, of Wilkes Superior Court. The facts of the ease sufficiently appear in the opinion of the Court. The deed or other contract of an infant is not void, but voidable merely, and may be confirmed by him on his arrival at full age. McOormicie v. Leggett, 8 Jones, 425.

Motion, to dissolve an injunction, and for an attachment for •contempt, heard before Watts, J., at Chambers. Eor a proper understanding oi this case, the facts are sufli•ciently stated in the opinion of the Court.

, at Chambers. The plaintiff alleged in his complaint that he was Clerk of the House of Representatives of North Carolina from the first ■day of July, 1868, to the organization of the General Assembly, which was elected on the first Thursday in August, A. D. 1870.

<p>It is sufficient to authorize a warrant of attachment, if the affidavit set forth “ that defendant was about to assign, dispose of, or secrete his property with intent to defraud his creditors,” and then specifies “ that the said property was secretly removed out of its usual place, after night, and found several miles distant, and when it was overtaken late at night, the persons having possession thereof made conflicting statements as to where they were going, and whose property it was they had.”</p> <p>The Court has the power to allow the amendment of an affidavit upon which a warrant of attachment had issued, although the former affidavit is wholly insufficient.</p> <p>Hughes v. Person, 63 N. C. 548; Claris v. Claris, 64 N. C. 150, cited and approved.</p>

Civil action for the recovery of a lot of land, in the town of Haywood, tried before Tourgee, J. at Spring Term, 1871, of Chatham Superior Court. The plaintiff introduced a deed from G. J. Williams, Sheriff of Chatham, conveying lot No. 116, situate in the town of Haywood, to plaintiff, the said lot having been sold under a ven. ex. as the property of Chesley Faucett. Also an act of incorporation of the town of .Haywood, in 1832.

<p>1. Where an administrator agreed with two persons that they should buy certain articles of personal property, and give their note to the Administrator therefor, and that the property was to be purchased for the common benefit of all three of the parties, and that each one should pay off and discharge one-third part of the note so given: Held, that upon a suit upon said note by the Administrator, it was competent for defendants to offer parol testimony to prove the agreement between the parties, and the plaintiff under the C. C. P. could recover of defendants but two-thirds part of said note.</p> <p>2. Under the C. C. P., a defendant may avail himself of any defence that would have been available under the old mode of procedure, either in a Court of Law or Court of Equity.</p> <p>8. Such an agreement is not illegal, unless it be shown that the creditors of decedent, or his distributees, may be prejudiced by such conduct on the part of the Administrator.</p> <p>4. If upon the cross-examination of a witness he is asked as to collateral matters, and is examined as to particulars not presented by the issues, the party is bound by the answer, and will not be allowed to go into evidence aliunde, in order to contradict the witness.</p> <p>(Observations as “ to double pleading” under tbeold Bystem, and C. C. P.)</p>

* The complainant in his bill, filed at Spring Term, 1868, of Oleaveland Court of Equity, alleged that he was formerly a-slave, and belonged to Samuel Lattimore, who permitted him to accumulate money, by allowing him to work for himself, and by said moans he was enabled to accumulate several hundred dollars ; that about the year 1858 the defendant informed complainant that he could manage his notes and money to greater advantage than could complainant, and, confiding in…

Indictment for the murder of one March Webb, tried before Logon, L, at Spring Term, 1871, of Gaston Superior Court. The evidence of the homicide was as follows: Amanda Williams testified that on the 2d December, 1870, the prisoner ■came to her house, intoxicated, and was cursing and offering to fight. That he caught hold of the deceased several times. Witness tried to get the prisoner to leave.

<p>Where A dies seized of land, leaving a widow, and B the son of A occupies the land jointly with A’s widow, and thereafter B dies, when the widow of xl applies and obtains dower in said land: Held, that the widow of B cannot be endowed of said land: the maxim, dos de dote non peti debit, applies.</p>

Civil action for the recovery of the possession of realty, tried before Clarke, J., at Spring Term, 1871, of Halifax Superior Court.

<p>Where an original attachment issued, and a summons of garnishment is. served upon a party, who dies before the return day of process, his. administrators cannot be required to answer said garnishment. In such a proceeding, the garnishee is required to answer upon oath whether he is indebted to the absconding debtor, and if so, how much % This being peculiarly within his own knowledge, the action cannot be prosecuted against his representatives.</p> <p>History of the different statutes at Common Law and of the enactments in this State, by which actions might be revived and carried on by, or against, the representatives of a deceased party — and in what cases the maxim actio personalis moritur cum persona does not apply.</p> <p>Welch v. Gurley, & Hay. S34, cited and approved.</p>

<p>An agent acting under a parol authority, cannot bind his principal by any covenants, and when the principal never delivered them, they cannot be regarded as his deeds.</p> <p>Where A is indebted to B by note, and the latter gives to the former a mortgage to secure the payment of the note, there is an implied promise on the part of B, that by the acceptance of said mortgage, he will suspend.action upon the said note.</p>

<p>After the pleadings are made up and whilst the trial is progressing, it is irregular to move to dismiss the complaint, or Bill in Equity, for defects apparent upon the face of the complaint or Bill in Equity, except where there is a manifest defect of jurisdiction in regard, to the subject matterr as distinguished from a want of jurisdiction in respect to the person, or a statement of a defective cmse of action, as distinguished from a defective statement of a cause of action.</p> <p>Where there is no proof of positive fraud or imposition, the contract of an heir expectant to convey what may descend to him by the death of the ancestor, is obligatory upon him, and such contract will be enforced by the Courts.</p> <p>Where the consideration is fair and adequate and no undue advantage has been taken, the decree is foi specific performance, where advantage has been taken of the necessity of the heir expectant, the contract is held as a security for the return of the money actually advanced together with interest.</p> <p>"Where A, an heir expectant of B, executed a deed to C, for “ his entire interest in all the personal estate of B, and also his entire interest in all the real estate of B, that he the said A may be entitled to as one of the children and heirs at law of B,” it does not convey such an interest as could be enforced in a Court of Law under the old procedure, but resort must have been made to a Court of Equity.</p> <p>McDonald v. McDonald, 5 Jones, Eq. 211, cited and approved.</p>

Circuit Court of the United States for the District of North.

<p>The Circuit Courts of the United States have not jurisdiction of a case either at Law or in Equity, in which a State is plaintiff against its own citizens. The Constitution of the United States does not confer such jurisdiction, nor is it conferred by any act of Congress. Such jurisdiction is not conferred upon the Circuit Court in this case by the Bankruptcy act of 1867, because there are other necessary parties than the Assignee in Bankruptcy, and without such parties the plaintiff could not sustain his suit in any Court.</p>