Volume 66 — North Carolina Reports

These were' rules heard and determined at January Term 1872, of this Court, and as the rule in the matter of E. G. Haywood grew out of the preceding one, in Kane vs. Play-wood, it is deemed proper to report the cases together.

This was an'action on the case commenced under the former system and tried at Fall Term 1871, of Rowan Superior Court, before His Honor Judge Cannon and a jury. The action was brought to recover damages for the loss to plaintiffs of a large quantity of manufactured tobacco, alleged to have been lost, in consequence of the neglect of the defendant to obey the plaintiff’s instructions to stop the same while in transit.

This was a motion for an injunction and the appointment of a receiver heard before Logan, Judge, at Fall Term 1871, of Mecklenburg Superior Court. The facts of the case, upon which the judgment of the court is rendered are fully stated in the opinion of the Court. Erom the order of injunction and the appointment of a receiver, the defendant appealed, to the Supreme Court.

Petition for a peremtory mandamus, heard before Clarke, Judge, at Fall Term 1871, of Jones Superior Court. The case as stated on the record is, “ Benjamin Askew w. James Jtl. Pollock, Clfn, Thomas G. Wilson, &c., Commissioners oí Jones county.

This was an issue of devisavit vel non, tried before Moore, Judge at Spring Term 1871, of Edgecombe Superior Court. It was in evidence, by a witness, William Á. Darden, Jr., that while his command was at Sullivan’s Island, near the city of Charleston, about the 1st of July, 18G8, he was asked by John 33. Belcher to write his will.

This was a civil action for the recovery of the possession of a tract of land and damages for the detention thereof, tried before Mitchell Judge, at Fall Term 1871, of Wilkes Superior Court. Plaintiff showed a deed in trust from himself to C. L. Cook, made to secure a debt to Jenkins and Eoberts, bearing date March 27th, 1855, and which covered the land in dispute, and a deed from Cook reconveying the laud, and dated 12th March 1869.

This was an equity cause pending in the Court of Equity for Beaufort county at the adoption of the Code of Civil Procedure, and was transferred to the Superior Court under the provisions of the Code. At Fall Term 1810, His Honor Judge Jones, proceeded to render a decree in the old form, which, however, contained no declaration or finding of the facts, nor did they otherwise appear from the papers, to have been found.

<p>This was an action in the nature of a Quo Warranto brought by the relators of the plaintiff against the defendants. The summons, was returnable t.o Pall Term 1871 of Craven Superior Court. Before the application of the relators of the plaintiff an order of injunction had been issued by Ilis Hon- or, R. P. Dick, restraining the defendants from leasing or disposing of the property and franchise of the Atlantic and North Carolina Railroad Company to the Pennsylvania Central Railroad Company or to any other person until the further order of the Judge of the 3d Judicial District. At the return term of the Superior Court for Craven county, the defendants filed their answer, and on motion, the injunction order theretofore issued was vacated by His Honor, Wm. J. Clarke and judgment rendered against plaintiff for costs. Prom this judgment the relators of plaintiff appealed to the Supreme Court. To understand the opinion of the Court, a brief statement of the facts is all that is thought to be necessary. The relators of the plaintiff alleged in their complaint, in substance, that they were the legal and rightful Board of Directors of the Atlantic and North Carolina Railroad Company; that by virtue of an Act of the General Assembly, ratified on the 6th day of April, 1871, authorizing and empowering the President of the Senate and Speaker of the House of Representatives to appoint proxies and directors on the part of the State in all corporations in which the State has an interest. E. J. Warren, President of the Senate, and Thomas J. Jarvis, Speaker of the .House of Representatives, bad issued commissions to C. 0. Clark and others as directors on the part of the State iu the said Railroad Company; that at a regular meeting of the Stockholders other directors were elected to represent the private Stockholders, and that a President and other officers were elected. That the defendants are now in possession, claiming to be directors and refused to surrender possession of the property &e., of the said Company, and that they had intruded into and usurped the offices of the said Railroad Company without authority of law. They asked judgment that they be declared the legal and rightful Directors of the Atlantic and North Carolina Railroad Company, that the defendants he ousted therefrom, and plaintiffs be put in possession. For an injunction and receiver.</p> <p>Defendants in their answer insisted that they were the rightful directors of the A. & N. 0. R. R. Co. That they claimed to hold the same under the provisions of the charter and the law of the land, authorizing and empowering the Governor of the State to appoint directors, &c. That the Governor had issued commissions to a number of the defendants as directors on the part of the State and that the others had been legally and properly elected in a meeting of the Stockholders under the provisions of the charter of the company. They denied the right of the plaintiffs under the appointments made by the President of the Senate and Speaker of the House of Representatives. That the act of the General Assembly which conferred this power upon them was unconstitutional.</p> <p>who appeared for the relators took the following- positions, which were elaborately argued :</p> <p>I. That the Constitution, sec. 1, art. ,‘5. has created the office of Superintendent of Public Works. In see. 18 of same article, it is declared that his duties shall be prescribed by law, and that such duties were prescribed by the act of 1868 -’69, chap. 270.</p> <p>II. That the Constitution having once conferred the power ¡upon the legislature to prescribe the duties of this officer, with 2'eferenec to the State’s interest, in improvements already done ■and in process of completion, the whole subject matter is submitted to the discretion of that body, and “ therefore the Supreme Court is not capable of controlling the exercise of power on the part of the General Assembly.” Proadnax vs. Groom., 64, N. C,, 250.</p> <p>III. That having this power to give the appointment of State directors, &c., to Superintendent of public works, the General Assembly could withdraw such right and confer it upon another, as they had dona in the acts of 1869-’70, chap. 112, giving to the Governor and counsel, and that by virtue of the same power, by the Act of 3 870-71, they took this authority from the Governor and conferred it upon the President of the Senate and Speaker of the House.</p> <p>IV. That this view is in harmony with sec. 10, art. 3. That this section was not intended to apply to the manner-of appointing proxies and directors, but only to those who have been recognized as officers, a proper classification of whom had been given by tbe Court in "Worthy v. Barret, 68 N. 0. N., and this act of April 5th, 1811, empowering the President of the Senate and Speaker of the House to appoint, did not create any office at all, but if the right to appoint directors, ¿so., was an office it was created by the charter of the corporation, A,. & N. O. N. N. Company, which existed at the adoption of the Constitution.</p> <p>V. That the provisions of sec. 10, art. 3, does not apply because this office (if one) bad already been provided for prior to the Constitution and was therefore otherwise provided for, and that said 10th section does not, for the reason stated, apply to the act of April 6th, 1871, under which the plaintiffs claim, their appointments.</p>

This was a eivil action, tried before His Hou©s*, Judge Watts, at July Special Term 1871, of Granville Superior Court. The action was brought upon a policy of insurance issued by the defendant at the instance of plaintiff, to ai\d in the name of one Newnan, against the loss of certain tobacco, &c. by fire. The policy was based upon the application.

Iliis was an action to recover a tract of land in Guilford 'county, containing nineteen acres, tried before Tourgee, Judge, at Eall Term 1871, of Guilford Superior Court. Both parties claimed under one Mebane. Plaintiff was a ■daughter of said Mebane, and in tbe partition of bfs lands among bis children, this portion was allotted to her. Plaintiff intermarried with Woodbournein 1818, who died in 1867.

This was a motion for an order of injunction heard before Russell, Judge, at Chambers in Wilmington, June 7th, 1871. The plaintiff filed a complaint stating in substance the various acts of the General Assembly in reference to itself. The opinion of tho Court only renders it necessary to state the substance of certain acts bearing upon the matter in litigation, and certain facts connected therewith.

Motion under Sec. 206, O. C. P., board before Russell, Judge, at Fall Term 1871, at Robeson Superior Court.

This was an aotion of ejectment tried before His Honor, Judge Buxton, at Fall Term 1871, of Montgomery Court. The question in the Court below was, whether a tract of land known as the McLeod tract, of 100 acres, passed to the plaintiff under the words “my plantation” contained in the first clause of her husband’s will. Testimony was introduced by the plaintiff to show that the land in controversy, adjoined the lands on which the testator lived or was contiguous thereto.

This was a motion, to compel the Sheriff of Mecklenburg eounty, to applyithe surplus of money in his hands, arising from the sale of the real and personal property of one Taylor, after satisfying certain executions of a lien prior to tbe 29th day of November, 1869, to tbe payment, of plaintiff’s execm tions. The Sheriff sold the property of Taylor* under executions, some of which, were of lien prior to the 29th day of Nov., '1869, and others, of lien subsequent to that time.

This was an indictment for murder, tried before Cannon, Judge, at Forsythe Superior Court, Fall Term 1871. The facts of the case are as follows: On Saturday or Sunday, about the 6th day of May, A. D. 1871, an after-birth was found at a mill pond near the prisoner’s residence. The neighbors, believing that a child had been murdered on Monday, drew off the water of the pond in search of its body.

This was an action brought upon a former decree of the Court of Equity, of Cumberland county, tried before Russell, Judge, at Fall Term 1871, of Sampson Superior Court. The facts necessary to an understanding of the ease are fully stated in the opinion declared by the Court. (jnder instructions from His Honor, a verdiet was rendered for the defendants. Jndgment and appeal by plaintiff.

This was an indictment for arson, tried before Clarke, Judge, at Fall Term 1871, of Craven Superior Court. The following is a copy oí the indictment: “ NORt Superior Court, Craven County Fall Term, 1871.

This was an indictment tor burglary, tried before Henry, Judge, at Fall Term 1871 of Buncombe Superior Court. The defendant’s counsel interrogated the jurors as they were called, as to their indifference, viz : as to forming and expressing an opinion. No juror was objected to on that account. The material witness for the State was the prosecutrix. The defendant introduced one Hampton, to impeach witness’ character. He swore that witness’ character was not good as to truth.

This was a bill in equity, filed under tbe former system by tbe plaintiff as executrix of tbe will of S. M. Withers against T. W. Sparrow, Martba L. Sparrow, bis wife, and James M. Hutchison. Mrs. Sparrow was entitled to a separate estate in Lancaster District, S. C., and having removed to this State, she, with-her husband, filed a petition for .the purpose, and obtained the appointment of, the defendant Hutchison, as trustee, in this State.

<p>1, Where it appears to this Court that the Judge below, has, from the statement of the appellant, the objections of the appellee and his own notes, been enabled to make out a ease containing the substantial merits of the controversy, the appeal will not be dismissed, although there was great irregularity in the proceeding below.</p> <p>3. Nor will the appeal be dismissed, because the statement of the Judge below, (Judge Henry) was made out of the District in which the suit was tried (9th,) unless the record shows that the appellee demanded to b e present, and that by reason of his absence, he was prejudiced, especially when the error consists in the rejection of material and competent evidence.</p> <p>S. This Court is disposed to extend liberality in matters of appeal-practice, as the profession have not yet become familiar with the new system.</p> <p>4. If, at a sale of a vested remainder in slaves, a proclamation is made, that if the purchaser did not get the slaves, they were not to bo paid for, it is competent and relevant on a trial in an action on the note given by the purchaser, for the vendor to show, that his title to such remainder was a good one at the time of the sale by the purchase of outstanding interests, or otherwise, notwithstanding that the slaves themselves were emancipated before the life-estate fell in.</p> <p>5. At sucha sale, (August 1S61,) it is evident that tBbparties did not contemplate emancipation, nor act or talk with reference to such a result; and this is clearly manifested by the terms of the bill of sale thereat, which embraced the contract between the parties, and which is in these words : Received of J. O. W., by note, $1,G20, his bid for the interest of J. H. W., dec’d, in two negroes, * * * * * *• * * * * we warrant the title of said negroes, as to the interest, expressed, unless recovered, from the estate of J. H. W. by M. I-I. W., who forbid the interest mentioned to be sold, and in case said recovery is made by the said M. H. W., then the note of the said J. O. W., shall not be recoverable.</p> <p>(5. If the legal title to such remainder was in the intestate at his death, it passed by the sale to the purchaser, and he is bound for the purchase-money.</p>

This was an action in the case commenced, under the old system, and tried before His Honor, Judge Mitchell and a jury, at Fall Term 1871, of Iredell Superior Court. The action was brought for the value of a horse, saddle, bridle and pocket-knife. The plaintiff declared in three counts : 1. In trover. 2. In caso for failing to take due care, &e. 3. In trespass, joined under the statute.

This was an action of trespass, vi et armis, commenced under the old system under the provisions of chap. 1, sections 9,10, 11 of the Rev. Code, brought by the plaintiff as the administrator upon the estate of one Henry C. Utley, for the unlawful killing, by defendant, of his intestate, and was tried at July Special Term 1871, of Cabarrus Superior Court, before Hiá Honor, Judge Moore, and a jury.

<p>An execution debtor is entitled to a pebsonal property exemption, notwithstanding an execution, issued against his property, bore teste, before the adoption of the Constitution, if there was no levy, made until after.</p>

This wits an appeal from the decision of His Honor, Judge Mitchell, on a case agreed, made at Spring Term 1871, of Wilkes Superior Court. The only facts necessary to a proper understanding ot the -opinion, are, that the plaintiff obtained a decree against the defendant in this Court, on the equity side, at June Term 1868, and caused an execution to be issued thereon, which bore tente, the second Monday in J une, 1868.

This was a submission of a controversy without action under Tit. XIV., chap. 1, of the C. C. P., heard before His Honor, Judge Pool, on the 12th day of Béeember, 1870.

This was a proceeding, under tbe 266th section of tbe C. C. P., to subject the property of a judgment-debtor, had before Pool, Judge, at Fall Term 1871, of Bertie Superior Court.

This was a bill in equity, to foieclose a mortgage, beard before Russell, Judge, Fall Term 1870, of Cumberland Superior Court. This bill was filed against the defendant, Thomas J. Johnson, alone, afterwards, his wife was made party defendant: The hill stated that the defendant was indebted to complainants in a large sum, and executed his note to thorn on the 27th day of March, 1867.

This was a civil action, tried before Watts Judge, at a special term of Wake Superior Court, January 1872. The complaint alleges that the plaintiff had agreed to sell to the defendant, a lot in the city of Raleigh. That the defend'ant executed to him, several notes, in consideration of said agreement. That plaintiff executed a bond, binding himself to make a dead to the defendant, upon the payment of the purchaseunoney.

This was an appeal from the decision of His Honor Judge Pool, rendered at Fall Term 1871, of Perquimans Superior Court. In 1866 the defendants recovered a judgment against Wm.

This was a special proceeding instituted by the plaintiff as administrator of one John Leggett, against his widow and minor children to obtain a license to sell the real estate of which the intestate had died seized, subject to the dower of the widow which had been assigned.

'This was a civil action, tried on complaint and demurrer, before His Honor, Judge Cioud, at Fall Term 1870, of the Superior Court of Yancey.

<p>This was a motion, by W. H. Hailey, Attorney on behalf of the Clerk’s Office, to order the Clerk to deduct from the amount of money belonging to the defendant in Ctaurt, the amount of a bill oí costs against it, in favor of the officers oí this Court.</p> <p>It was admitted that the defendant is a bankrupt, and had been so declared, since the last term of this Court.</p> <p>The facts were, that Nathaniel Boyden had recovered his costs of this Court, $42.10, against the defendant on an appeal.. See Boyden v. Banin, 65 N. C.,); it was further shown that an execution in favor of the bank had issued, tested of June Term 1871, of this Court against one Caldwell, for $324, and that the amount thereof had been paid into the office of the clerk of this Court, in satisfaction of an execution which had been issued upon the same, and, that it waB now in the hands of the Clerk of this Court.</p> <p>I. On the general question. Cleric’s Office v. Allen, 7 Jones 156. Turner v. lendall, 1 Cr., (U. &,) 116.</p> <p>II. Assignee takes, subject to all equities. 2 Story, Eq., Ju/ris, seos. 1038, 1228, 1229 and 1411.</p> <p>“No lien can be acquired, or enforced, by any proceeding in a State Court, commenced after the petition is filed. Bump’s Law on Bankruptcy, (4th edition,) 360. See case in re Wynne 4 B. Register, 5.</p> <p>How can any lien be created upon the money in the office which did not reach the office till after an adjudication in bankruptcy ?■ See Bankrupt Act, see. 20. The C. C. P., creates no lien on personalty till after levy. In our case, defendant is a bankrupt.</p> <p>No other, but the Court of Bankruptcy, can interfere with the estate of an adjudicated bankrupt. See Bump ron Rank* miptcy, 276, (4th edition.)</p> <p>In re McIntosh, 2 Bcmkrupt Register, 168, where Judge Brooks holds that no lien is created until a levy. Here there, was none, and cannot be after the adjudication. See also IV, A. L. Revieiv, 648, title “ lien,” V, A. I. Review, 528, title “ lien.”</p>

<p>This was a motion to vacate an* order of injunction, heretofore obtained by tbe plaintiff, and heard by His Honor Judge Cannon, at Salisbury, on the 2d day of September, 1871.</p> <p>The action, in which the order was made, was pending in the Superior Court of Rowan. By leave of the Governor, Judges Cloud and Cannon had exchanged Circuits, and Judge Cloud was bolding Courts in the 12th, on the 2d September, 1871. The 8th District Courts commenced on Monday the 5th day of September, and the plaintiff objected here, that Judge Cannon had no jurisdiction over business in the 8th, until the 5th day of September, 1871.</p> <p>This matter was argued and determined as preliminary to the main point, and a separate opinion was delivered, but, for convenience, the two opinions are conjoined.</p> <p>The case below was heard upon affidavits on both sides. It appeared from the affidavits on both sides, that prior to the 9th of July, 1855, the defendants, the two Holmes and two Mauneys, were seized in fee of the premises, (a mining property) ; that, having before that time, sold the same to one Isaac H. Smith, acting for and on behalf of, the Gold Hill Mining Company, a corporation created under the laws of New York, and of which said Smith was President, and, having received a full fee simple price therefor, on that day, they executed a deed, whereby they conveyed the same to said Smith, his successors ' and assigns, in trust for the said Company, whereby, but a life estate in the legal title passed to said Smith, and a legal reversion remained in the bargainors. Smith died in 1858, whereby, the whole legal title became vested in the bargainors.</p> <p>In 1860 and 1861, attachments were sued out against said Company, and were levied on the premises as its property. At August Term 1861, judgménts were obtained on these attachments, and the premises were sold by the Sheriff on the 6th day of January 1862, by virtue of writs of ven. ex, issued to enforce the same. At this sale, the defendant Roberts became the purchaser, and having taken a Sheriff’s deed therefor on the next day, 7th of Jan’y, 1862, conveyed shares therein to the other defendants. In .April 1866, the plaintiff as agent for a corporation, created in New York, in 1865, called the N. C., Ore Dressing Company, made an executory contract with defendants to purchase the premises at the price of $25,000, and took a bond for title ; on this purchase, some $15,000 having been paid, and the balance being in arrear, the defendants brought a civil action, in the nature of a bill for foreclosure, in the Superior Court of Bo wan, and it seems that that suit was compromised. At any rate Howes, on the 4th day of May, 1870, purchased from the defendants, surrendering the bond for title, (talcing up the remaining notes given on that purchase,) for the price of $ , took a deed with</p> <p>covenants of seizin, against incumbrances, of good right to convey, and in one of them a restricted covenant of quiet enjoyment, and, at the same time executed a mortgage with a power of sale to secure the purchase money, and having, as he alleged, discovered that the title was defective, failed to pay instalments as they fell due, and the mortgagees, (the defendants) advertised a sale of the premises under the mortgage.</p> <p>In 1866, a bill was filed, by one Broekleman against the defendants and the Gold ITill Mining Company, alleging indebtedness of the Company to him, by a judgment, which after execution returned nulla bona, remained unsatisfied, and setting forth the equitable title of the Company to the premises, as above stated, and praying a sale thereof to satisfy his judgment. That a sale was ordered to be made by a commissioner named, but in the order of sale it was expressed, that the title was to be reserved, until twenty-five thousand dollars was paid to the defendants, (other than the Company,) under the executory contract with Howes as agent for the N. C. 0„. D. Go.' a sale was made and confirmed, and an unconditional order was made, directing title to be made to the purchaser, on payment of his bid, and that said bid had been paid, but the commissioner had refused to make title.</p> <p>The plaintiff averred a general knowledge of the attachment suit and of the bill in equity, but, that he was ignorant of the effect of the war on the rights of the Gold Hill Mining Company, and had only, recently, before the exhibition of hi® affidavit, come to the knowledge of the utter worthlessness of the defendants’ title, viewed in the light oí a late decision of the Supreme Court of the United States. The defendants swore, that plaintiff bought with full knowledge, of the defects in their title. M. L. Holmes and E-. Mauney, filed separate affidavits — Holmes swearing that the purchaser was the agent of plaintiff, and Mauney, that he was agent of N. O. O. D. Co., and the plaintiff, and that the amount of the bid was furnished him by the President of the last named Company, and a great deal more touching the knowledge of the plaintiff, which it is considered needless to state, in view of the point decided by the Court.</p> <p>His Honor, Judge Cannon, vacated the order of injunction heretofore granted, and, tho plaintiff appealed.</p>

This was a civil action submitted to His Honor Judge Pool, on a case agreed at Fall Term, 1871, oí Perquimans Superior Court.

<p>This was a civil action founded on a note for money payable on the condition recited in the syllabus and was tried on demurrer to the complaint before His Honor Judge Moore, at July Special Term, 1871, of Mecklenburg Superior Court. His Honor sustained the demurrer, and the plaintiff appealed.</p>

This was an application made to his Honor J udge Clonci, in vacation, for a mandamus to try the alleged right of the re-lators, to the office of Directors, in the Eastern Division of the Western North Carolina Railroad Company. But it is deemed unnecessary, to set forth the facts bearing upon the claim made,' as the case went off upon a question of practice.

This was a civil action, heard on complaint, counter-claim and demurrer, before bis Honor, Judge Mitchell, at Fall Term 18ÍT1, of Caldwell Superior Court. The plaintiff, in his complaint, alleged title to a horse in himself, and that the same had been taken out of his possession by the defendant, and was detained after demand, and demanding appropriate relief.

The following is the statement made out bj the presiding: Judge. Case tried at Person Court, Fall Term 1871. This was an action of debt, tried before Tourgee, Judge, upon a promissory note, made by the defendant Walker, to the-defendant Wade, July 24th, 1862, and assigned to the plaintiff: by the defendant Wade in 1867.

<p>This was a civil action tried at a Special Term, Jan., 1872, of Wake Superior Court, before Watts, Judge.</p> <p>The complaint alleges: That the North Carolina Mutual Life Insurance Company was a corporation created, organized and existing under the laws of North Carolina.</p> <p>That the defendant Davis, made his promissory note to.said corporation, by which he promised to pay'the sum of $450.80, in the currency of the United States.</p> <p>That in a certain suit, in the Circuit Court of the United States, for the District of North Carolina, in which Sansom and others were complainants and the N. C. M. L. I. Co. were defendants, a certain decree was made, and among other things is the following, viz : “It is therefore ordered, adjudged and decreed, that R. H. Battle, Sr., be appointed receiver of the assets of the North Carolina Mutual Life Insurance Company, and that upon his executing bond, &c., &c., the assets of the said Company shall be placed in his possession, and be shall proceed to collect the ohoses in action which may come to his hands, and for such purposes he is authorized to commence and prosecute suits in the Courts of the State of North Carolina.” The complaint further alleges that the- plaintiff complied with the orders of the Court, gave bond, &c., and that as such receiver he is vested with, and possessed, of and entitled to the promisory note made by the defendant as aforesaid. Demands judgment, &c.</p> <p>To this the defendant demurred :</p> <p>L That complaint does not state facts sufficient to constitute a causo of action.</p> <p>II. That the plaintiff, according to the facts stated in his complaint, has no right to bring this action in this Court.</p> <p>Upon argument the demurrer was sustained and the suit dismissed.</p> <p>Plaintiff appealed to the Supremo Court.</p> <p>Can a receiver appointed uuder a decree in the Circuit Court of the United States, to collect the assets of a corporation for its creditors, sue in his own name in our Courts?</p> <p>I. The dccrae of the Circuit Court must vest the title, legal or equitable, in the receiver, and since the distinction between the Courts of Law and Equity was abolished, it can make no difference.</p> <p>The assignee of an account or a bond not negotiable, now sues in his own name.</p> <p>Here the receiver alone can receive and give receipts for the agents.</p> <p>II. A receiver appointed in the Courts of another State, may sue in his own name in New York. Yorhies1 Code, pp. 120 and 480. Jhinh v. St. John, 29 Barb. 585. Hoyt v. Thompson, 1 SeUL-n 820. Porter v. WiVims, 5 Selden. 1+2.</p> <p>III. Receivers of an insolvent corporation of another Bute, •appointed under the laws of that State, with power to take-possession of the effects of the corporation, and to sell, assign, «fee., its real and personal estate, have power lo sell and assign ¿i debt due from a citizen of New York, in their own name#, so ns to give the purchaser a right of action, @s aguinst the debtor in the Courts of New York. Tloytv. Thompson, ( Tallies ”30,</p> <p>The above is a well considered case by the highest Court in Now York, and is based upon mihoriiy as well as principle.</p> <p>IV. That the receivers have power to sue at law bv permission oí the Courts appointing them, as hero, (see Htrong's JCq. Jur. sec. 829, ei seq., Dari l Ch. Prao. 1977 and 1991. Parker v. Browning, 8 Paige 388.</p> <p>That the Comity of (Yurts permits receivers appointed in one State to sue in another. See fprañey v. Hartford ins. Go., 1 Dillon’s 0. C. Reps. 892.</p> <p>VI. In our case the receiver is by the terms of the decree appointing him, a trustee for the creditors of the Company, and his trust being determined by the decree, he must be a trustee of an express trust, and to sue in his own name, under C. C. P.., sec 57.</p> <p>J. The plaintiff is a receiver appointed under the ©Id equity system, which obtained before the adoption of C. C. P.</p> <p>He is not the the real party in interest referred to in sec. 55, C. C. P., nor is he the trustee of an express trust under sec. 57, 0. C. P.</p> <p>Nor must he be .confounded with receivers under sections 315 and 270, C. C. P.</p> <p>The decree of tlie -Court of Equity is not an assignment, nor does it contain an order for assignment of -the note sued on by the plaintiff. If the decree of the United States Circuit Court .could assign fhis bond with .the right of .action on it* without regard to rules of pleading and practice in the látate Courts, why could it not change the title to, and right to recover, real estate without regard to State laws. The only effect the decree can have, is to order the plaintiff to commence and prosecute suits according to laws governing tiro Courts vdiere such suits are instituted.</p> <p>8. The receiver is the mere agent of the Court, and lias no {flaws except in the Court which appointed him. lie acts under its eider, and can do nothing without it. “ He lias'no powers except such as are conferred on him by the order for his appointment, and the course and practice of the Court/’ 2 Story Pg., 'Turin, sec. 833. 'TevjTlandk, v. Met. Ins. (Jo., 2 Paige 252. Sea. Ins. (Jo. v. SieblA-ns, 8 Paige 565.</p> <p>4. The suit should have been in the nenie of the Insurance Co , which is not dissolved; or '■2nd, The debt might have been collected by proceedings in the same Court which having gotten jurisdiction will give the party full relief; or 3d, By making the debtors to the Company parties to the suit in Equity and ordering them to pay into Court — issues as to validity and amount being, if necessary, submitted to a jury, &c. Daniels Ch. PI. and Pr. 1991 and 1977, 2 Story's Jilg. ■Tur. sees. 827, 828.</p> <p>Diggs v. Johnson county, G Wallace, at page 187 and eases cited ; Hamlin v. Hamlin, 8 Jones Eq. 191.</p> <p>“It is to be observed” * * * * * * “to make use of the name of the party to whom such debt is legally due.” 3 Daniel's Ch. PI. and Pr. 1977 and 1991., Parker v. Browning, 8 Paige, 388.</p>

<p>Civil action tried before Mitchell, Judge, at Spring Term 1871 oí Burke Superior Court.</p> <p>The following is a statement of the case made out by the presiding Judge:</p> <p>“ This was a civil action on a bond, made 14th November, 1863, payable two years after date, in the current funds cf the country when due.” The consideration of said bond, was the lease of a tract of land belonging to the heirs at law of J. S. 0. McDowell, dec’d.</p> <p>Defendants admitted the execution of the bond, but relied on several defences set forth in their answer.</p> <p>1. That plaintiffs could only recover, if at all, the actual value of the rents and profits of the said land for the term.</p> <p>2. That plaintiffs could recover, if at all, only the value of the nominal amount of the bond at the tizne oi its execution, and that was the understanding of the parties at the time of its execution.</p> <p>8. The consideration of the bond was illegal, the land having-been leased to the defendants, for the purpose of raising and furnishing supplies for detailed laborers employed by defendants in manufacturing iron for the Confederate Government, under a contract with said Government, which fact was well-known to plaintiffs when the land was leased.</p> <p>4. Plaintiffs represented at the time of executing the bond, that they had full right to lease, claiming under a lease from lion. Charles Manly who was guardian of the minor heirs of J. S. C. McDowell.. Whereas, in fact there was no rightful guardian at the time, and Mrs. McDowell has since the expiration of the lease been appointed guardian of said heirs.</p> <p>5. That Mrs. McDowell, guardian, is entitled to the rents and profits for the term of the demise to the defendants, and has brought suit against defendant Carter, wlio'was the actual occupant, or tenant during said term, and as a defendant sets up this as a counter-claim.</p> <p>Plaintiffs reply, denying the] first and secon'd allegations of answer. To the third theyrepliy, that the acceptance of rent by the guardian of McDowell’s heirs, ratified the loan. To the fourth, plaintiffs reply, they indemnified the owners of the land, by satisfaction to the guardian, Mrs. McDowell, who entered a formal retraxit to the suit commenced against defendant Carter, as occupant and tenant of the land. They deny the consideration as alleged in paragraph 3, and especially that plaintiff had any knowledge of the purpose for which the laud was leased. They admit that they purported to lease, by virtue of a lease, under Governor Manly.</p> <p>Defendants proposed to examine testimony to prove the value of the rents during the lease, for which the bond was given.</p> <p>The testimony was excluded by the Court as irrevelant. The defendants called W m. F. McKesson, one of the plaintiffs, and asked him if he knew the purpose for which the lands were leased by the defendants, and if they were to raise supplies for detailed laborers, &c. He answered, No. They further asked him, if they did not tell him so at the time ? Witness answered that he did not recollect that they told him so at the time the bond was given.</p> <p>The defendant then proposed to prove the declarations of of the witness, “That they had told him so.”</p> <p>' The question was disallowed and ruled out.</p> <p>It was in evidence that Mrs. McDowell was not appointed guardian until the year 1866, and after the expiration of the Term. She accepted rents from the plaintiffs once during the term and before her appointment as guardian and a second time after the termination of the lease and after she had been appointed. 'It was also in evidence that Mrs. McDowell had entered a retraxit in her suit against Carter for the rents of the land, and it was admitted that this would discharge him.</p> <p>The Court instructed the jury that if they were satisfied of the truth of the evidence in the case, the plaintiffs would be entitled to their verdict for the full amount of the note in lawful currency. Defendants excepted :</p> <p>1. To the ruling out by the Court of the evidence by which defendants proposed to contradict McKesson, called as a wit-mess by themselves.</p> <p>2. Rejection of evidence offered to prove the value of the rents and profits during the term of the lease, in order to reduce the amount of the recovery.</p> <p>3. Because the Court rejected the application of the legislative scale for that purpose.</p> <p>There was a verdict for the whole amount of the note. Judgment accordingly, from which the defendants appealed.</p>

This was a civil action tried before Mitchell, Judge, at Fall Term, 1811, of Burke Superior Court. One of the defendants, William F. McKesson, executed a mortgage to plaintiffs’ testator, for several tracts of land lying in Burke and the adjacent counties, and a house and lot in the town of Morganton, to secure certain debts mentioned in the said mortgage. The condition of the mortgage is as follows ; viz: ■ “Now, if the said Wm.

This was a civil action on a note for $372, dated May 6th, L859, tried before Mitchell, Judge, at Pall Term 1871, Catawba Superior Court. The execution of the note was admitted.

<p>1. The District Courts of the United States have general original jurisdiction in. all matters appertaining to the estate of a bankrupt; and they may exercise-extra territorial jurisdiction, in collecting the estate and adjusting the claims oí the creditors of the bankrupt, when the Court of Bankruptcy can fairly and fully determine the rghts of the parties interested.</p> <p>¡3. In all matters of controversy, when the subjects in dispute are of a local character, the rights of the parties must be determined in the local Courts.</p> <p>3. When a mortgagee, by the terms of the mortgage, has a light to foreclose, when an adjudication in bankruptcy is made, this right cannot be administered by a District Court, sitting as a Court of Bankruptcy in another Stale. The-State Courts can afford a remedy by foreclosure or sale and at the same time allow the assignee fo have the full benefit of the Equity of redemption.</p>

Civil action tried before Watts, Judge, at Spring Term 1871, of Wilson Superior Court. _ This action was brought by the plaintiff to recover of the defendant the value of a certain quantity of wood. It was proved by the plaintiff that his testatrix on the 18th day of -July 1864, sold to the defendant 583£ cords of wood, and on the 1st day February, 1865, 422-J cords, at $1.10 per cord, and that it was agreed that the price should be paid in Confederate currency.

This was a civil action tried before Watts, Judge, at Spring Term 1871, of Granville Superior Court. The action was brought, as appears by the complaint, to recover an amount due for the bire of a slave in the year 1865.

This was a civil action tried before Moore, J edge, at Fall Term, 1871, of Pitt Superior Court.

This was an action of ejectment, tried before Buxton, J., at Fall Term 1871, of Moore Superior Court. The declaration in ejectment was served on James Riddle, (the hnsband of the defendant) who was in possession, Aug. 6th, 1861. At Fall Term 1861, one Tyson was by leave of the Court permitted to come in and defend as landlord of Riddle.

This was a petition filed by the plaintiff ns guardian, against the defendant as former guardian of one Atkinson, asking for ‘Mi account, &c. The matter was referred to E. A. Dancy, to take and state the account of the defendant, as former guardian. A report was made and exceptions filed. The case comes to this Court ■upon the exceptions to the report.

This was an indictment tor the murder of W. IT. Stead-man alias Lee, tried before Cloud, Judge, at Fall Term 1871 of Henderson Superior Court : Polly Weston, the principal witness on the part ot the State,, swore that she was the wife of one Silas Weston, that she had four children, the deceased William Herbert Steadman alias Lee, being one of them.

.Petition to make real estate assets. This was a petition filed by the plaintifi as administrator de bonin non, before the Judge of Probate of Wake county against the heir at law and J. W. E. Watson, a purchaser of the real estate of which the intestate died seized, seeking to make the said real estate assets for the payment of debts. The Judge of Probate entered judgment against the defendant.

This was an indictment for murder, tried at Warren Superior Court before Watts, Judge, Spring’ Term, 1871.

<p>This was a motion to set aside and vacate a judgment rendered against the defendants as bail of George A. Smith, heard before Moore, Judge, at Fall Term, 1871, of Edgecombe Superior Court. *</p> <p>The facts stated in the record are as follows:</p> <p>John Norfleet was Magistrate of Police of the town of Tar-boro’, Edgecombe county, and‘as such issued the following warrant, viz:</p> <p>State v. George A. Smith.</p> <p>State op North Carolina,</p> <p>To miy Constable or other officer of said Oounty — Greeting :</p> <p>Whereas, Windsor Bilby hath complained on oath before me, a Magistrate of Police for the town of Tarboro’, that George A. Smith did, on the 4th day of October, A. D. 1870, at and in the county and town aforesaid, violently assault the said Bilby, by shooting at him with a pistol, contrary to law and against the peace and dignity of the State. You are, therefore, commanded to arrest the said Smith and have him before me, or some other justice of the peace to answer said complaint and be otherwise dealt with according to law.</p> <p>(Signed) JOHN NORFLEET, M. of P. [Seal.]</p> <p>Upon said warrant is the following endorsement:</p> <p>State v. George A. Smith:</p> <p>The defendant is this day brought before me, and it appearing that he is gnilty (from the evidence); it is adjudged that he be recognized in the sum of $50(1, with good sureties, for his appearance at the next Term of the Superior Court for Edgcombe county, &c.</p> <p>JOHN NORFLEET,</p> <p>Magistrate of Police for Town of Tarboro.</p> <p>The said Smith gave bond in the sum required for his appearance at the Superior Court for Edgecombe county with the defendants as sureties. At said Term of the Court the said Smith failed to appear, and judgment nisi was entered against him and his sureties. A soirefaeias was issued against them and at February Term 1871, the judgment was made absolute. At the subsequent Term September 1871, a motion. Avas made to set-aside and vacate said judgment and the Court being of opinion that the said “Norfleet had no jurisdiction of criminal matters to any extent, and that the warrant issued by him for the arrest of the said Smith, as well as all the subsequent proceedings had before him were void,” adjudged, that the said judgment be set aside and vacated, from which judgment the Solicitor for the State prayed an appeal to the Supreme Court.</p>

<p>1. A trustee in the execution of his trust, is hound to carry out honestly and' faithfully the purposes contemplated hy the grantor, to keep an account of receipts, disbursements, &c., and he ready to produce his accounts when required' by the parties interested in the estate.</p> <p>2. Where the facts connected with the management of a trust estate, are In dispute, and the rights of the parties cannot he readily ascertained without an account, in such case the rule adopted by Courts of Equity, is a reference to the Master andif there is dissatisfaction with the report, theraattermay ho brought before the Court by proper exceptions.</p>

<p>1. Where issues to be tried by a jury, are tendered by the plaintiff, and such issues are objected toby the defendant, and others tendered, and the presiding Judge directs those tendered by the plaintiff to be submitted; Held, that there can be no appeal to the Supreme Court from such preliminary order.</p> <p>Rules III, IV and V, adopted by the Supremo Court at June Term, 1871, discussed and fully explained by Pearson, C. J.</p>

This was an civil action tried at the Fall Term 1871, of Caldwell Superior Court, before Mitchell, Judge.

This was a civil action tried before Logan, Judge, at Pali Term 1871, of Gaston Superior Court. Plaintiff declared ujion a written agreement made between the parties, and dated Janaury 25th, 1865.

Motion to dismiss an appeal heard before Logan, Judge, at Fall Term 1861 of Cleaveland Superior Court. The plaintiff sued the defendants upon an account and they were cited to appear before a Justice of the Reace. Both parties appeared on the day of a trial, witnesses were examined, and the case was heard by the Justice, and a judgment rendered in favor of the defendants.

This was a civil action tried before Logan, Judge, at Fall Term, 1871, of Cabarrus Court. The plaintiff declared upon a promissory note given by the defendants and made payable to “Susan Mebane, guardian of E. S. Mebane.” Tbe said note was delivered to the said E. S. Mebane and her husband, upon their marriage, in settlement of the guardian account and without endorsement.

This was a motion to vacate a restraining order, heard before Clarke, Judge, at Chambers. The complaint alleges that the defendants, the Commissioners of Jones County, had levied 75 cents on the $100 valuation of real estate in said County for school purposes. The same not having been submitted to a vote of the people, nor to a vote of any township, and without authority oí any school committee.

This was a petition for a mandamus, heard before Watts, Judge, at Special Term of Wake Superior Court, January, 1872. The plaintiff was the sheriff of the county of Henderson. He stated in his petition that one Charles Hutchison was tried and convicted at the last Term of Henderson Superior Court •of larceny ¡and sentenced to be confined in the penitentiary for three years.

This was a motion lor retaxation of costs, beard before Cannon, Judge, at Fall Term, 1870, of Transylvania Superior Court. An action of ejectment was tried between tbe parties at Spring Term, 1869. Before the jury was empaneled, each party called their witnesses. None were sworn or tendered by tlie defendant in the action. A verdict was rendered for tbe defendant. The' plaintiff Jmoved that the attendance of the defendant’s witnesses should be taxed against her.

This was action brought by plaintiff against tbe defendant, to receive damages for killing a mule and calf. Tried before Moore, Judge, at Fall Term of Edgecombe Superior Court. It was in evidence that the rail road of tbe defendant ran through tbe enclosed pasture lands of tbe plaintiff, that there was a continuous grade on the land from and through the pasture to the depot, about a half mile distant.

<p>This was an action tried before Cloud, Judge, at Fall Term, '1871, of Cherokee Superior Court.</p> <p>This action was brought by the plaintiffs against the defendant, seeking to charge the estate of the intestate, Abram. Sudderth, with the value of certain slaves and the hire of other slaves, which they allege were willed to them by their grandfather John Hennessee. They claim the slaves and other property under two clauses of the will of said Hennessee, which are set out in the opinion of the Court. The plaintiffs, Sarah, wife of Haglar, Margaret, wife of Howell, Ailsey, wife of Hyde, Judy, wife of Dean, are the grand children of Hennessee and the children of Abram Sudderth by a former marriage, and the plaintiffs "Wallis, Victoria, Abram and Jacob Williams, who sue by guardian, are the children of one Excey Williams, deceased, who was likewise a grand daughter of said Hennes-see and a child of Abram Sudderth.</p> <p>The defendants are the administrators of Abram Sudderth, deceased, his widow, who was his second wife, and a daughter of the second marriage, and her husband.</p> <p>In the progress of the trial, the case was referred to auditors for an account. They made a report to Fall Term, 1870.</p> <p>Various exceptions were filed to the report by both plaintiffs and defendants. His Honor sustained the exceptions made by the plaintiffs, and overruled the defendants’.</p> <p>Plaintiffs moved for judgment according to the report modified by their exceptions. His Honor refused to give judgment,, and each party appealed to the Supreme Court. -</p> <p>The exceptions to the report, and all other facts material to the case are fully stated in the opinion of the Court.</p>

This was a rule for security, beard before Cannon, Judge, Spring Term, 1810, of Henderson Superior Court. An action was brought by one Israel against the defendant for the conversion of a mule. After the suit was brought Israel became a bankrupt, and the plaintiff was appointed his assignee, and on motion was made party plaintiff in the place of Israel.

This was an application for a writ of mandamus against tbe treasurer of the State to compel him to pay certain coupons on bonds which had theretofore been issued by the State. It is not thought necessary to state tbe facts more fully,-as tbe case is decided upon tbe power of tbe Court to issue a mandamus against the Treasurer, under the state of facts-set forth in the opinion of the Court.

This was a motion to vacate a judgment on an injunction1 bond, heard before Russell, Judge, at Fall Term 1871 of Bla-den Superior Court. The facts upon which this motion were predicated are stated1 sufficiently in the opinion delivered by the Court. The motion was overruled by His Honor, from which the defendant', appealed to the Supreme Court.

This was a petition to correct the tax list for tbe year 1871, beard before Watts, Judge, at the Special Term of Wake Superior Court, January. 1872. The petition was heard before the County Commissioners of Wake. They refused to grant the relief prayed for, and the petitioner appealed to the Superior Court. Upon the hearing before Judge Watts, the order of the Commissioners was reversed, and an order made to correct the tax list.

This was a civil action tried! before Logan-,. Judge, at Fall Term, 1871 of Mecklenburg Superior Court. Plaintiff alleged in his complaint: I. That it is a corporation duly created by law. II. That on the 24th of November 1863’, the defendants by their note promised to pay plain-tiff eighty-three days alter date, $150. II. That no part thereof had been paid. Plaintiff demanded judgment for the amount of the note- and interest.

This was a civil action tried at Fall Term of Jackson Superior, Cannon, Judge, presiding. Plaintiff alleged in his complaint, that as administrator oí one Kilgon, he had obtained license to sell the real estate of Ms intestate to pay debts ; that he sold the said real estate, and that one of the defendants became the purchaser, and executed his bond with the other defendant as surety ; that the bond was unpaid, &c. He demanded judgment for the amount of bond and interest.

This was a civil action tried before Cloud, Judge, at Spring Term 1871, of Forsythe Superior Court.

This was an action on a constables bond tried before Watts,, Judge, at a Special Term of Halifax Superior Court. The plaintiff declared upon a constables bond and assigned as a breach, that the officer had not used due diligence in endeavoring to collect certain claims placed in his hands. A complaint was filed setting forth the different claims placed in-the hands of the officer.

Motion to dismiss for want of a power of attorney, heard before Henry, Judge, at Fall Term, 1871, of Watauga Superior Court. The action was brought in the name of plaintiff to use of Ilagerman. The complaint and answer was filed at Spring Term, 1871.

This was an application based upon a petition, to set aside ad-judgment, heard before Cannon, Judge, at Fall Term 1871, of Henderson Superior Court. The facts stated in the case sent to this Court seem to be as-follows : The plaintiff Ledbetter was indebted to one Noah-Henry as administrator, as surety for one William Henry. He-was sued by said administrator before a justice of the peace.

Rule upon the Clerk of the Superior Court of Richmond,, heard before Buxton, Judge, at Chambers.

Civil action for partition of land, heard before Russell, Judge, at Fall Term, 1871, of Bladen Suprior Court. The plaintiffs allege in their complaint that William J. McKay died intestate in the county of Bladen, leaving as his only heirs the plaintiffs and defendants who are related to him in the following order, to wit: Mary Ann wife of the plaintiff Duncan Oromartie, is a neice of the said Wm. J. McKay and only child of his deceased brother John L. McKay.

,.’ at Fall Term, 1871, of Richmond Superior Court. The action is to recover a tract of land, and was returnable; to Fall Term, 1870, oi Richmond Superior Court, when the* complaint and joint answer of the defendants were filed.

This was a civil action, tried before Clarke, Judge, at Fall Terra 1871, of Jones Superior Conrt. The plaintiff, in his his complaint alleged, that the defen-, •dants were indebted to his intestate in the sum of three hundred and ninety one dollars due by note.

Debt brought upon the bond of the defendant Hassell, as Clerk and Master, tried before Moore, Judge, at Spring Term, of Martin Superior Court. A demand was made by the plaintiff before the bringing of the suit, and the breach assigned was the failure to pay over the interest on the sum of one thousand dollars alleged to be due the plaintiff.

Motion to set aside a judgment rendered in the Superior-Court of Chatham County, heard before Tourgee, Judge, at-. Fall Term, 1871, of Chatham Superior Court. Held: and by reason thereof the answer of defendant had been delayed and was not filed in the case till the second week of the Spring Term, 1871, of Chatham Superior Court, when •said Court had adjourned, having during the term rendered a judgment against defendant.

The plaintiffs declared for goods sold and delivered to the defendants and one Robert Mosely, trading as Hubbard, Moseley & Co.» during the year 1860, and in support of their claim they read in evidence the depositions of the plaintiffs as to the sale of the goods, that they had not been paid for,and also the or der.ofthe defendants for the property alleged to have been sold. The answer of the defendants relied upon the plea that said account had been paid off and discharged.

Civil action tried before Pool, Judge, at Fall Term, 1871, of Chowan Superior Court. It was in evidence that the defendant’s testator hired the ■plaintiff as overseer of his plantation, in Bertie county, for the year 1870, for the sum of $625.

Petition to rehear this case, which was decided at January Term, 1871, and reported in 65 N. C. 168, The facts upon which the petition is based, are found in the opinion of the Court in the volume referred to. Petition was filed at January Term, 1871.

This was a civil action tried before Watts, Judge, at Fall. Term, 1871, of Franklin Superior Court. The jury found a special verdict in these words : “That on the 10th day of October, 1862, the defendant, Smith, with one W. H. Davis, as surety, executed a note under seal to G. W, Blacknall, for $1,500. The consideration of the note was the hiring of a substitute to take the place of the said Smith in the army of the Confederate States, on the 25th of April 1863.

This was a motion made in tbe Superior Court of Wayne county, on notice by the defendants to set aside an execution and have satisfaction of the judgment entered oí record many affidavits exhibiting great conflict of testimony, were submitted to His Honor, Judge Clarke. His Honor ordered issues arising on the conflicting evidence to be submitted to a jury, and a supersedeas to issue in tbe meantime until a new trial could be had.

This was an appeal from a judgment rendered herein by His Honor, Judge Watts, at Spring Term, 1871, of Craven Superior Court. In this Court a motion was made by the defendant’s counsel to dismiss the appeal, based on affidavit that the case appearing in the transcript, which is only signed by the counsel for appellant, was returned by him to plaintiff with his specific amendments attached thereto.

Civil action tried before Pool, Judge, at Spring Term 1871, •of Bertie Superior Court. It was proved that the plaintiff and defendant were in 1868 (partners in fishing, under the name of Wilson & Holley, and as .¡such owned a seine', rope, cork, &c., and all the outfit of a ;river fishery, and had fished in the Spring of said year at Eaton house fishery on the Chowan River.

This was an application made to this Court for a certiorari without giving bond and security, upon-affidavit of insolvency, and certificate of counsel of merits. An order nisi was made and notice to the defendants, and this counsel was given, and was argued at the present term. 1. It is discretionary with the Court whether any pauper can sue in it. 2. Acts 1868-’69, p. 220, prescribe that any Judge, &c., may authorize any person to sue in forma pauperis.

This was a civil action brought to recover the possession of land, tried before His Honor Judge Cloud, and a jury at Spring Term, 1871, of Surry Superior Court. The plaintiff claimed as landlord, &e. The defendant admitted the alleged tenancy, but in his answer set up as a counter-claim various facts, which he claimed constituted an equitable defence to the action, and proposed to give evidence thereof on the trial.

This was a civil action brought to recover the possession oí land, tried before His Honor, Judge Tourgee, at Spring Term, 1871, of Randolph Superior Court- Several points were made on the trial, but as the case is made to turn on one only, it is deemed unnecessary to state them.

This was a petition tiled by Crawford and Murray in the-above-named cause, and heard before Mis Honor, Judge Jlen'-rv, at Fall Term 1871 of Buncombe Superior Court. Toms had brought suit against Warson on^ notes, and while the same was pending, Toms sued out an attachment, and caused the same to be levied on certain land claimed by Crawford and Murray.

This was an appeal from the Superior Court of Martin. One Biggs, a creditor of the plaintiff’s intestate moved hr the above entitled cause which was a petition to make real estate assets, on notice to set aside a sale of the real estate on certain grounds. This motion was supported by affidavits, and the facts constituting the basis of Biggs’ motion were controverted by conir-ter-affidavits, filed on behalf of the plaintiff.

This was a suit in equity removed to this Court under the former practice, and in which after the adoption of the Constitution, issues were ordered to try disputed facts.

This was a motion to vacate a judgment under sec. 133, C.. C. P. heard before His Honor, Judge Tourgee, but at what time does not appear in the transcript, except that it was within1 one year after the rendition of the judgment. Among various grounds assigned for the motion, it was alleged by the defendant, that the action was commenced in 1853, and was not transferred within the time prescribed by;, law. His Honor was requested to find the facts upon this and other grounds.

This was a petition filed in the Superior Court of W ayne Countty in vacation, setting forth in substance that certain land had been sold under a decree of the late Court of Equity for Wayne County, rendered in a petition praying for the same for partition, filed by the present petitoners as tenants in common* thereof: that the defendant became the purchaser, and that the sale had been duly reported and confirmed, but had failed to pay the purchase money, and praying for a…

<p>This was an action of debt commenced under the old system by one Sherrod as the survivor of himself and one Cotton joint. .guardians of two wards and on the death of Sherrod was revived in the name of the present plaintiff, as his executor, and was tried at the Spring Term, 1871, of Martin Superior Court, 'before His Honor Judge Moore and a jury.</p> <p>The facts 'are so fully and clearly stated in the opinion of the Court, that the reporter deems it a work of supererogation tojattempt a recital of them.</p> <p>There was a verdict and judgment for the plaintiff and the defendant appealed.</p>

This was an action in which the summons was issued by the Clerk of the Superior Court of Rowan county, and made returnable to the Superior Court of Buncombe county. At Fall Term 1871 ofBuncombe Superior Court, His Honor Judge Henry, presiding, it being the summons term, the rela-tors filed their complaint, whereupon the defendants moved to dismiss the action for want of jurisdiction. This motion, was sustained by His Honor, and the relators appealed.

This was a civil action tried at the Fall Term 1869, of Per-quimans Superior Court, before TIis Honor, Judge Pool, in complaint and demurrer. The complaint set forth in substance, that the defendant, under color of certain tax-lists, had exacted of the plaintiff’ illegally, taxes to the amount of $152, and that he had under said tax-lists, seized and sold property of the plaintiff for the price of $152.

This was au appeal from a Justice’s Court, beard-before IIU ■ Honor Judge Cannon, at Fall Term, 1871, of Davie Superior .■ Court. The plaintiff had commencedjproceedings, by virtue of a pur- - chase at execution sale, of certain realty, sold as the-p.ropei1;v.„-of the defendant under see. 31. chap. 159, Acts of 1868-’6@, ¡before a Justice’s Court, and obtained judgment and was put into possession. These proceedings were completed before the case of Credit ■ir.

This was a civil action, tried before His Honor, Judge Tourgee, at Fall Term 1871 of Alamance Superior Court. The action was based upon a bond for the payment of money, and the defendants filed an answer to the effect stated in the 4tli syllabus. The plaintiff moved for judgment, as by default, treating the answer as impertinent and frivolous.

This was a civil action tried before His Honor Judge Henry, at Fall Term 1871, of the Superior Court of Buncombe county. The case was heard upon the complaint, answer, award and exceptions thereto.

This was a civil action tried before His Honor Judge Logan at Fall Term, 1871, of Mecklenburg Superior Court.

This was a motion for an execution de bonis propriis on notice, heard and determined by His Honor Judge Moore, at July Term 1871, of Mecklenburg Superior Court.

This was a civil action beard on motion to vacate an order •of injunction, and to dismiss the action, heard before His Hon- or Judge Moore, at the July Special Term, 1871, of Mecklen-burg Superior Court. The facts are sufficiently stated in the opinion of the Court, to a proper understanding of the points determined. Ilis Honor granted The motion to vacate, and denied the motion to dismiss, from which ruling the defendants appealed.

This was a civil action tried betore His Honor Judge Logan- and a jury at Fall Term 1871, of Gaston Superior Court. The action was brought to recover land. The plaintiff offered in evidence a deed made to him by onn D. P. Morrow, dated January 13,-1869, and also a deed from* isaid Morrow to defendant dated October 8th, 1858, both covering ’the land in dispute.

<p>This was a civil action brought by the plaintiff as purchaser at execution sale, against one Miller to try the title to real ■estate and was tried before His Honor, Judge Mitchell and a jury, at Eall Term 1870, of the Superior Court of Caldwell.</p> <p>The facts are stated in the opinion with sufficient precision to supercede the necessity of a separate report.</p> <p>There was a verdict and judgment below for the defendant and the plaintiff appealed.</p> <p>Where both parties claim under the same person, neither ■shall deny the title of such person. This rule is not based on tbe idea of an estoppel but is a rule of practice which has become a rule of law. One exception is made to this rule: “when the defendant can show that the true title was in a third person and he has acquired that title or can connect himself with such third person.” Newlin v. Osborne, 8 Jones, 164. In this case the defendant insists that he may also avoid the rule by shewing the title in himself at the time he took the deed from Miller.</p> <p>A defendant may devise to avoid the rule three ways :</p> <p>1st. By showing the true title was in a third person and he has acquired such title.</p> <p>2d. By showing the true title was in himself at the time he took the deed from the person under whom both parties claim.</p> <p>3d. By showing the true title in a third person without connecting himself with such person.</p> <p>The first has been considered the only exception to the rule; if the second is also added the exceptions would become broader than the rule, and destroy it as a rule. The defendant had the benefit of the rule, and could estop the plaintiff from denying the title of Miller. When he is cornered shall he be allowed to tarn around and say, I am entitled to the verdict any way, for the truth is, I had the true title at the time I took my deed from our common grantor. “No man shall play open and shut-” Armfiéld v. Moore, Busbee 157. If it be said it would be hard to deny the defendant this right, the reply is : The title of a third person is the tabula in naufragio for which the law allows both parties to struggle, but it shall be accounted the folly of the defendant that he accepted a deed from my grantor when he had the title in himself; and he cannot complain because a rule of law is not violated to prevent mischief to him. If two joint tenants be seized of an estate in fee the one grants a rent charge of that which be-longeth to him and dies, the survivor shall hold the land discharged. And the-cause is, that he which surviveth claimeth and hath the land by survivorship, i. e., under the original feoffment. But if there be two joint tenants in fee and the on* granteth a rent charge out of his part, and after releaseth to his joint companion and dieth, he shall hold the land charged forever. Thom. Coke, vel. 1, p. 747 and SO. Had the survivor not accepted the release he might have relied on the better title in himself and avoided the rent under the original feoffment. But because he accepted the deed from his co-joint tenant he was estopped to show such better title in himself. The principal case is stronger than the above case.</p> <p>1. In the case from Coke one claimed the land, the other a rent issuing out of the land ; here both claim the land.</p> <p>2. In the case cited, the joint tenant which released had an interest which determined at -his death, and generally where an interest passes the deed creates no estoppel.</p> <p>3. The title of the survivor was not consummate xxntil the death of the co-tenant!</p> <p>It was error to say thei'e was no evidence that Miller had an interest liable to execution. There was evidence that defendant had declared a trust for Miller of one third of the mill. At common law it was not necessary that a trust shoxxld be declared in any particular way, the declaration could be made by deed, writing or word of mouth. PbaesoN, C. J., arguendo. Shelton v. Shelton, 5 Jones Equity, 292. But admitting “that declarations by words are only theoretically allowable.” RodMAN, Judge, m Fergerson v. JIaas, N. O., 64, p. 772. Here are two circumstances, besides the declaration of the defendant; “his interest is a third,” viz: acceptance of the deed and being in continued possession.</p> <p>Estoppels must be mutual and bind only parties and privies and whoso is not bound by an estoppel cannot take advantage of it. Griflm v. Richardson, 11 Ired. 439 ; Langston v. Mc-Kmnie, 2 Murp. 67; Gray v. Harrison, 2 Hay. 292, (477).</p>

This was a civil action tried before His Honor Judge Mitchell, and a jury, at Fall Term 1871, of Burke Superior Court.

This was a civil action tried at Rail Term,“1871, of B.urke Superior Court, befóte His Honor Judge Mitchell and a ju ry. The action was brought to recover possession of land, and the following facts were developed on the trial: That one W. F. McKesson formerly owned the land, and on the 5th day of February, 1869, conveyed the same tojone Jacob Ilarshaw, to secure certain notes given for money lent by said Harshaw.

<p>This was a proceeding to recover possession of land, commenced by the plaintiff before A. EL Martin, Esq., a Justice of the Peace, brought' by appeal to the Superior Court Jof Mecklenburg county and heard before His Honor Judge Moore, at July Special Term, 1871.</p> <p>The allegation of the plaintiffs, admitted to be true, was, that the defendant had executed a deed in trust to the plaintiff Williams providing for a sale of the land if debts were not paid by a day named therein, and also providing as follows: “It is further the understanding and agreement of the parties, that the said party of the first part [the defendant] shall retain possession of said premises, until the same shall be sold by the said party of the second part,” and that the debts not having been paid ■ as stipulated, the trustee had sold the premises under4the provisions of the trust and the other plaintiff Robert became thepurchaser and that the defendant continued thereafter to retain possession of the same and had refused to surrender possession thereof to the plaintiff after demand.</p> <p>His Honor, on .this state of tacts, being of opinion that the plaintiff had the right to recover under the proceedings, rendered judgment accordingly, from which the defendant appealed.</p>

This was a civil action brought to try title to land, and was tried -before His Honor Judge [Tool and a jury, at Spring-Term, 1871, of Currituck Superior Court.

This was a mandamus tried before His Honor, Judge Bux-ton at Fall Term 1871, of Cumberland Superior Court. The plaintiff held a debt against the county of Chatham,, due prior to, and at the date of the passage of the Act, March? 7th, 1871, Acts 1870-71, ch. 114, p. 176, and obtained a peremptory mandamus against the defendants, commanding them to levy and collect a tax sufficient to pay his debt.

This was a civil action tried before His Honor Judge Tour-gee and a jury, at Fall Term, 1871, of Guilford Superior Court. The plaintiff complained for tbe negligent killing of his intestate by tbe defendant, a common carrier.

This was a civil action, tried on complaint and demurrer, before His Honor, Judge Mitchell, at Fall Term 1871, of Ire-dell Superior Court.

<p>This was a civil action tried before His Honor Judge Fool, and a jury at Spring- Term, 1871, of Pasquotank Superior -Court, and was brought to recover the value of certain goods ■which the plaintiffs alleged had • been sold and delivered by .diem to the defendant.</p> <p>Oa trial, the plaintiffs having introduced testimony tending So prove that they gave credit to tlie defendant, to confirm tike-evidence of the witness (one of the plaintiffs), it was proposed to show that one Ambrister negotiated with plaintiffs fior the purchase of the goods on behalf of the defendant, repre- ■ .sealing himself as its agent and that lie showed orders [called dm the exceptions and opinion letters, but in the deposition ■■orders] from the officers of the Company authorizing him to purchase such goods for the company, and that the plaintiffs gave credit to the Company upon the strength of the orders or Setters — tdie letters not being produced on record — the defend-..aut objected to the evidence on the ground that it was an attempt to introduce parol evidence of a writing without produ»-cing it or accounting for its non-production. This evidence, 'however, was received by His Honor and the defendant ex-oepted.</p> <p>There was evidence tending to prove that plaintiffs sold the goods to the defendant and gave it credit therefore ; that they invoiced the goods in the name of the defendant and forwarded the invoice to defendant, and also shipped the goods to defendant, which were received and used by defendant.</p> <p>It was also admitted that Ambrister was a stockholder in the Company.</p> <p>There was much rebutting testimony offered by defendant to show that Ambrister had no authority to act in any manner as defendant’s agent, and that neither the defendant or its officers had ever ratified any act of Ambrister as such, which it is deemed unnecessary to recapitulate in detail, as the case in this Court turned upon the question of evidence and Ilis Hon- or’s charge.</p> <p>The defendant requested His Honor the following instructions to the jury, viz:</p> <p>1. That there can be no recovery in this case, unios John Gr. Ambrister was the agent of the defendant.</p> <p>2. That there is no legal evidence in this case showing that John G-. Ambrister was directly or indirectly authorized to buy the goods of L. & E. Miller or any one else for them, or that he ever was their agent for any purpose whatever, and that no act of his has ever been ratified by the defendant or any of its officers.</p> <p>His Honor declined to give these instructions to the jury, for which the defendant excepted.</p> <p>His Honor instructed the jury, that if from the testimony they believed that John Gr. Ambrister had an agreement with L. & E. Miller that the goods bought by him and shipped to the defendant should be charged to his own account, and after-wards be credited upon the notes held by Peter Ambrister & Co., the defendant was entitled to a verdict.</p> <p>But if they believed that no such agreement had been made, and that L. & E. Miller sold to John Gf. Ambrister, as the agent of the defendant, and the defendant afterwards received tbe goods, that it became responsible for them by thus ratifying the act of Ambrister, even though he had never been authorized to buy goods for them. The defendant excepted to the charge.</p> <p>Under the instructions of His Honor, the jury found a verdict in favor of the'plaintiffs, and from the judgment rendered thereon the defendant appealed.</p> <p>That in order to entitle the plaintiff to recover on the idea of a ratification of Ambrister’s acts, done professedly as the defendant’s agent, His Honor should have charged that the defendant enjoyed the benefit of the goods after being fixed with a knowledge of such action by Ambrister, of which there was no evidence.</p> <p>Tiiey also argued a point of evidence which appears from receiving no observation in the opinion, to have been waived.*</p> <p>1. Ambrister’s declarations are admissible as part of the res gestae.</p> <p>2. The facts that the goods were purchased by John Gr. Am-brister, that bills were sent to the defendant, in which the goods were charged to it, and that said goods were used by the defendant, were some evidence of the agency at the time of the purchase, or of a confirmation afterwards; enough at least, to authorize the judge to admit the declarations of Am-brister. The evidence of the defendant is not to be considered. State v. Bulla, Phil. 437. State v. Andrew, lb. 205. Creech v. McBea, 5 Jones, 122. Scott v. Brown, lb. 406. State v. Dick, 2 Winston, 45.</p> <p>3. Ratification of contract. Angel and Ames, 238, 241, especially 240 and cases cited.</p> <p>4. As to what is some evidence. State v. Allen, 3 Jones, 257, State v. Long, 7 Jones. 24.</p> <p>That portion of the Judge’s additional statement not responsive to the letter addressed to him cannot be considered. But if it can, the evidence set forth therein as having been objected to, to-wit: that no credit was entered upon the note which Ambrister held against the Millers, is competent as tending to negative the idea that he purchased on his own account. Ordinarily men do not allow notes to stand open for the lull amount against them, when they are entitled to a credit for $1300.</p>

This was an appeal from a decision rendered'by His Honor Judge Watts, at Chambers, on the 28th day of January, 1871, in a civil action pending in the Superior Court of Franklin.

This was a civil action brought to recover the possession of a certain tract of land, tried before Mitchell, Judge, at the last Eall Term of the Superior Court of Burke County. The complaint and answer were in the usual form, and there-was no dispute as to the parties. The plaintiffs claimed under a mortgage in tee, executed by Wm.

<p>This was an action on the ease tried before Mitchell, Judge, and a jury at the Fall Term 1870 of Wikes Superior Court.</p> <p>The plaintiff declared against the defendant in two counts :</p> <p>1. Trover for the conversion of a quantity oí brandy.</p> <p>2. For a breach of duty by defendant, as the plaintiff’s bailee of the brandy.</p> <p>There was evidence in behalf of the plaintiff, tending to show that the plaintiff had stored with the defendant about 219 gallons of brandy about the 20th of June 1864 for sale, that the defendant was to receive by way of compensation, one half of all realized over §70 (Confederate money) per gallon this agreement was admitted by the defendant, it was also in evidence by the oath of the plaintiff, that in the fall of 1864 he modified the agreement by requiring the brandy to be sold -J for specie, -J- for bank notes, and -1 for Confederate bonds,and to pay the defendant a reasonable commission, that he communicated this proposed variation of the agreement to the defendant by letter, and received letters from him in reply assenting thereto: it seems that the parol evidence of the contents of the letters was received without objection.</p> <p>The defendant insisted that there had been a modification of the contract, and introduced in evidence sundry letters from pdaintiff to him, and after evidence of loss, was permitted to give in evidence their contents in support of this view.</p> <p>The plaintiff denied the alleged second modification.</p> <p>His Honor, in his charge, left the question of modification of the original contract as a question for the determination of the jury, reciting the evidence pro and con, and' with appropriate observations, touching the respective rights and obligations of the plaintiff and defendant upon the different hypotheses presented by the conflict of testimony.</p> <p>No request was made to His Honor to instruct the jury as to thedegal effect of the language used in the letters, and the only point made by the defendant below was raised by a special request to instruct the jury that if the contract was as first above.-stated, that plaintiff had no right to charge it, &c., which was declined by His Honor.</p> <p>There was a verdict and judgment for the plaintiff and the defendant appealed.</p> <p>1. What a coutract means is a question of law. 2 Par Cont.„ 422, note b ; Hutchison v. JBurlce, M. and W., 235 ; Young v. Jeffries, 4 I). and 13., 216; Massey v. BeUsle, 2 Ired., 170 ; Sizemore v. Morrow, 6 Ired., 54.</p> <p>2. What amounts to an abandonment of the contract is a question of law for the Court. Dulav. Cowles, 7 Jones, 290.</p> <p>It was properly left to the jury to say whether the original understanding had been modified. State v. Scott, 64N.C. 586,</p>

This was an old equity snit, pending in the Court of Equity ■ oí Haywood county, at the adoption of the present Constitution and regularly transferred under the Statute and was regularly set tor hearing, and heard at Fall Term 1871, of the Superior Court, Ilis Honor, Judge Cloud presiding, on bill, answers, exhibits and depositions.

This was an appeal from the judgment of His Honor Judge Clarke, rendered at Spring Term 1871, of Carteret Superior Court.

<p>.1. If money be lent to aid in the accomplishment of an illegal purpose, sucli illegality is not purged by the borrower failing so to apply the money.</p> <p>~2. Hence where money was borrowed to hire a substitute for the Confederate war service, and the borrower did not hire such substitute, the lender cannot recover on the note given to secure such loan.</p> <p>Justices Keade and Dick dissenting.</p>

<p>1. Where one, who stands in the position of a quasi mortgagee of land, sells the same to a purchaser with notice of the equity of the quasi mortgagor, such purchaser takes subject to such equity.</p> <p>8. Where one T handed to B certain papers which would enable the holder to procure grants for certain tracts of land, receiving from 3 certain depieeiated currency with the understanding that B should take out the grants in his own name, and whenever T paid him §750.94 in greenbacks B should convey to T; and B took out the grants in his own name and sold and conveyed certain of the tracts to G with notice of his trust to T; Held, that T had an equity of redemption, and that the purchase-money paid by G to B, should be regarded as paid by T to B in redemption ; and Held, further that a purchaser of the land from T before any of those transactions, is entitled to take the place of T and succeeds to his equitable rights.</p>

The plaiqtifi was summoned to serve on a coroner’s inquest, and being a doctor of medicine, presented an account claiming pay as doctor and juror. There was no trial of the facts, which were disputed, in the Superior Court. His Honor disallowed the doctor’s bill, but rendered judgment for two dollars, and the defendant appealed. This case turns on the construction of the third section of sub-chapter 9 of ch. 379, laws of 1868 — ’69.

This was a civil action, tried before Ilis Honor Judge Mitchell and a jury, at Fall Term 1871, of Iredell Superior Court. The action was founded upon a note given by the defendants for the purchase of real estate sold by the plaintiff as administrator, to pay debts, under a license from Court. The defendants, by tbeir answer, offered to set up as a set off or counter-claim a judgment quando, obtained theretofore by the defendant,'Allison.

This was a civil action tried before Ilis Honor Judge Russell, at Fall Term 1871, of Sampson Superior Corrt. The plaintiff complained on a single bill. The defendants answered accord, &c., and in support of this defence, offered a receipt given by the obligee for a less sum than the note called for. His Honor instructed the jury that the legal effect of the receipt was only a payment to the amount specified in it, and operated only as a discharge of the not a, pro tanto.

Case agreed. The action is on a note payable “ one day after date,” admitted to be tainted as between the original parties with an illegal consideration. The note was executed by defendant Smith to his co-defendant Bagwell, and by him endorsed about three weeks after its execution to the plaintiff, who had no knowledge of the taint, and gave full value for it. His Honor gave judgment for the defendant and the plaintiff appealed. 1.

This was a civil action tried before His Honor Judge Mitchell, at Fall Term, 18J1, of Alleghany Superior Court. The action was upon a note given in 1864, to the plaintiff, for property, amongst which was a jackass. On the trial, after evidence was introduced by plaintiff tending to show that the jack was worth $150, the defendant proposed to prove by one Reeves the reputation of the jack, and that the reputation was that he was worthless.

This was an appeal from the Superior of Edgecombe County at Fall Term, 1871, His Honor Judge Moore presiding. The plaintiff, a railway corporation, commenced a civil action and presented an affidavit (sworn complaint) to His Honor,, praying for an order of injunction. This was granted, and at the term aforesaid, a motion was made to His Honor on affidavit to vacate the order. The plaintiff1 made a counter-motion to perpetuate the injunction.

This was a civil action brought to recover possession of a tract of land, tried before His Honor Judge Clarke, at the Spring Term 1871, of Jones Superior Court. Both the plaintiff and defendant Foy claimed under the defendant Harrison who disclaimed; plaintiff under a sheriff’s deed executed in pursuance of a sale under execution of the land as the property of Harrison on the 6th day of September, 1869.

This was a rule nisi originally obtained on O. R. Colgrove, late sheriff of Jones, requiring him to show cause why he ■should not execute a deed as sheriff, to the plaintiff for a tract of land sold by him under execution.

<p>1. The wrongful refusal of a Court to permit a judgment creditor to have exo~ .cution of his judgment, does not operate (upon the abolition of such court, pending an appeal from such refusal) to impair any lien acquired theretofore, or which might have bean acquired thereafter, but for such refusal, under the maxim actus legis nemini facet wjnriarn,</p> <p>S. Hence, where, after judgment obtained in 1861, and executions regularly kept up thereon, a motion was made by a judgment creditor in 1860, in one of the late county courts for execution upon his judgment, which was wrongfully refused, and pending an appeal therefrom, such Court was abolished, it was, Meld that one who purchased from the judgment debtor pending such appeal, took the legal estate, hut subject to such lien as would have been acquired, had oxecution issued.</p> <p>S. In such a case, if the judgment creditor had not a complete lien upon the estate of his debtor he had at least an inchoate lien, with a right to perfect it by issuing an execution ; his proceeding to cause execution to be issued, constituted a Us pendens, of which every one Is held to have had notice, and a party purchasing from the judgment-debtor, pending the proceedings, is considered as dealing with him under exactly the same conditions, and subject to the same liens, as if the county court had not refused an execulion, and the same had been regularly issued.</p> <p>4. The creditor so delayed must be placed in stain quo, and as a corrolary, any such purchaser is effected with notice by a presumption yi/ris et do jure.</p> <p>5. The above stated rule it founded on the maxim pendante lite nihil tnnovetur, and is sustained by considerations of public policy.</p> <p>6. The doctrine of lis pendens, elucidated and applied to this case per Rodman, Judge.</p>

<p>1.One who has, and knows lie has, title to property, who is present at a sale of it as the property of another, and who, when it is publicly announced before the bidding commences, that all persons claiming the same are requested to make known their claims, remains silent, is estopped afterwards from setting up bis title against a purchaser for value at said sale.</p> <p>2. One who accepts a deed for property, and claims and acts under it. knows all the tacts constituting- title, and intends to hold under it if ho can, has such knowledge as the law intends by that term, and every reason applies why it should be disclosed which applies in the very rare ease of absolute knowledge that the title is good.</p> <p>3. There is a qualification ol the rule to the extent, that the true owner must mean for the purchaser to act upon his representations, but one comes within this qualification even, who, by his conduct, whether it be iraudulent and malo animo or simply negligent and omissive, gives to others reasonable ground to believe that he has no claim (for in this connection title and claim are synonymous) to the property, and sueh others do so believe and act on such belief.</p> <p>4. Not only the uberrima fide» but that simple bona Jldes which the law exacts from every man, required the true owner to made known his claim at said sale or never; he should have given all bidders the advantages he possessed from his exclusive knowledge: his omission to do so amounted to a negligence which imperilled the interests of others, and gave him an unfair advantage over them, enabling him, if he could, to buy low, and thereby secure an indisputable title, or, if another outbid him, to fall back on his reserved claim.</p> <p>5. The registry of the plaintiff’s title did not, per se. operate as notice to the purchaser.</p> <p>Pearson, 0. J., and Dick, J., dissenting.</p>

This was a civil action brought to obtain a construction of the will of the the late Peter Summey, of Lincoln county. Proper parties were brought before the Court, and the cause was heard before His Honor, Judge Logan, at the Fall Term 1871 of Lincoln Superior Court.

<p>This was an issue of d&oisamt velnon as to the validity of a ■script, propounded as the wilL of Prudence Cowan, and was tried at Fall Term 1871, of Catawba Superior Court, before His Honor Judge Mitchell and a jury.</p> <p>The script was caveated on the ground of mental incapacity and undue influence, and false representations in connection therewith. In one clause of the script the testatrix declared “as a reason why I have thus disposed of my effects is this, ■that my relatives from whom I might have expected acts of kindness and words of comfort in my old age, have undertaken to prosecute an inquisition of lunacy against me, and to deprive me of the control of my property, &c.”</p> <p>On the trial the caveators offered in evidence the recordof the inquisition referred to by Mrs. Cowan, for the purpose oí showing that only two and not all of her relatives had joined in the m-oceedings with a view to establish the false representations 'ged by them to have been made to Mrs. Cowan. This evidence was received after objection.</p> <p>There was evidence tending to show undue influence and mental incapacity, and rebutting testimony.</p> <p>His Honor was requested by the propounder to charge the jury, “that if Prudence Cowan knew what she was doing at the time she executed the alleged will, and to whom she was giving her property, she had sufficient capacity to make a will.” This instruction was declined by His Honor, who charged the jury amongst other matters not excepted to, “that the testatrix must have had mind and intelligence sufficient at the time she executed the will, to enable her to have a reasonable judgment of the kind and value of the property she proposed to will, and to whom she was willing it.” The propounder excepted thereto. There was a verdict in favor of the caveators, and from the judgment therein rendered, the propounder appealed.</p> <p>filed the following brief:</p> <p>1. The petition of lunacy was competent for the purpose for which it was offered, to-wit: to show who are the parties to it, and that the suit was pending. The suit was Referred to in the will, and falsely charged to be prosecuted by all the heirs and next of kin, and that in that suit, the propounder acted as the only friend of the testatrix. This evidence is offered under the defence of undue influence. If the Judge charges the law substantially correct, the refusing correct instructions, it is not error.</p> <p>Here his charge embodies in different language, the definition of competency laid down in Horn v. Horn, 9 Irecl., 99, Moffat v. Witherspoon, 10 Ired., 185, and Oornelicus v. Cornelius, I Jones, 593. See Hedfield on Wills, 122, 3, 4-, 6, Y, and notes. This author while adopting the definition which the Judge laid down in this case, at the same time refers to definition in Horn v. Horn, as being the most concise definition of testamentary capacity and in substance the same. See note above. 7. Williams on Hxecutors, p. 16 and notes.</p>

This was a civil action tried before His Honor Judge Tour-gee and a jury, at Fall Term 1871, of Orange Superior Court.

Civil action tried before Mitchell, J., at the last Fall Term of Caldwell Superior Court. It is considered that the syllabus and opinion convey a sufficiently correct idea of the questions raised and points decided without an attempt to condense the voluminous statement contained in the transcript.

This was an action of debt upon a single-bill commenced under the old system, and tried at Spring Term 1871, of Gran-ville Superior Court, before ITis Honor Judge Watts'and a ¿ary- _ There was evidence tending to show that in 1862, William R. Suit, the principal obligor hired asubstitute to go into the -Confederate army, and for that purpose borrowed the money .necessary from one Reams ; and that afterwards he borrowed tbe money for which the single-bill sued on was given to…

This was a civil action tried at Fall Tom 1811, of Lincoln Superior Court, before Ilis Honor Judge Logan and a jury.

This was an indictment for a forcible entry, tried before Mitchell, Judge, at Fall Term 1871, of Wilkes Superior Court. The case was, that the defendant, Hanks, had made au entry and procured a warrant to survey the land upon which the alleged trespass was committed. The warrant was placed in ilic bauds of the county surveyor who summoned and swore the defendant, Durham, and another as chain-carriers.

This was an indictment for assault and battery, tried before Mitchell, Judge, at Fall Term of Wilkes Superior Court. The facts of this case are fully stated in the opinion of the Court. Under instructions from the Court, there was a verdict of guilty. Judgment by the Court, and appeal by the defendant.

This was an indictment tried before Clarke, Judge, at'Eall Term of Wayne Superior Court. The indictment charged that the defendant, “one turkey of the value of five cents, of the goods and chattels of William Canis, feloniously did steal, &c.” Upon the testimony in the case, the defendant was convicted.

This was a motion for judgment upon a scire facias issued upon judgment nisi on a recognizance. The defendant in the indictment bad entered into bond with W. A. Smith as surety, for iiis appearance at Rail Term, 1870, of Johnston Superior Court. He appeared at said term and procured a continuance of his case; he was required to give bond for an appearance at the subsequent term. This bond lie failed to give, and departed without leave of tbe Court.

This was an indictment for retailing- contrary to the Statute, tried before Mitchell, Judge, at Fall Term 1871, of Caldwell Superior Court. The indictment charged a sale by both of the defendants. There was no evidence against the defendant Bradley, and a verdict was returned in his favor. The testimony against Simmons, the other defendant was, that he had a quantity of spiritous liquors in a wagon near the town of Lenoir.

This was an indictment for arson, tried beiore Mitchell, Judge, at Fall Term 1871, of Wilkes Superior Court. The principle witness for the State, was Amelia Adarns, daughter of the prosecutor, who testified that she heard the defendants threaten, at Mrs. Parker’s, to burn her father’s barn and other property, and to kill him, aud defendants persuaded her to leave her father’s house, and if she ever told it they would kill her.

Motion to retax costs, heard before Watts, Judge, at Special 'Term, January, 1872, of Wake Superior Court. The indictment was for rape, and Dr. E. B. Haywood was summoned, not as a witness to any fact, but as a professional expert. In was admitted that the State was liable to be taxed with the fee for his attendance as a witness. The Clerk, in taxing the bill of costs, was presented by the witness with a bill for $10 as a proper fee for his attendance..

This -was an indictment for larceny, tided before Watts, Judge, at Fall Term 1871, of Wake Superior Court. The charge ivas that the defendant had stolen “one United.

This was an indictment for obstructing a public street in the town of Enfield and was tried at the Spring Term 1871, of Halifax Superior Court, His Honor Judge Clarke presiding. The facts are sufficiently stated in the opinion of the Court.

This was an indictment for forcible tresspas, tried before 'Cannon, «Fudge, at Fall Term, of Forsythe Superior Court. In selecting a jury, the defendant, after exhausting his pre-■emptory challenges, asked to be allowed to make further chai-lenges for cause. This was denied by His Honor, upon the ground that it was unusual, except in capital cases. To this railing the defendant excepted. The jury was empanelled and evidence given tending to prove the guilt of the defendant.

This was an indictment for defacing, &c., & common-school house under the Statute, tried before His Honor, Judge Cannon, at Fall Term 1811, of Rowan Superior Court. There was evidence tending to prove that one T. Kesler had kept possession of the school-house from about 1863, until the time of the alleged injury, and bad the house locked and kept the key.

This was an indictment for an assault and. battery tried before Mitchell, Judge, at Fall Term 1871, of Wilkes Superior Court. It was in evidence that the offense was committed on the 12th day of March 1869, and the bill of indictment was not sent until after the expiration of two yeas, from the commission of the offense, viz: on the 17th day of April 1871.

This was an indictment for robbery, tried before His Honor .Judge Watts, at Fall Term, 1811, of the Superior Court of Johnston county. On the trial the State proposed to introduce in evidence thq confessions of the prisoner made during Fall Term, 1810, to one Porter. The defendant objected and offered to show that previously to that time tbe prisoner bad been induced to make confessions in consequence of a promise to him not to be prosecuted for ■the offence, if he did.

<p>1. An indictment nnder the Act of 1868-’69, ch. 253, concerning the killing, &c., of stock “in any inclosnre not surronnded by a lawful fence,” which simply charges the injury &c., to have been committed on stock in “the field” of one A. B., is not certain to that extent required in such pleading, and after a con. viction on such indictment, a motion in arrest of judgment wiil be sustained.</p> <p>2. Such a defect is not an informality or refinement within the purview of the 14th sec. of 35th chap, of the Rev. Code, but is a failure to express the charge against the defendant in a plain, intelligible and explicit manner.</p>

Indictment for forgery, tried before Moore, Judge, at EalT Term 1811, of Edgecombe Superior Court. The following is a copy of the indictment: “STATE OF NORTH CAROLINA — Edgboohbb Ooxnm-. Superior Oouvt, Fall Term 1871. The jurors for the State, upon oatli, present that Bob Thorn,. alias Benj.

This was an indictment for larceny, tried before Clarke, Judge, at Eall Term 1871, of Greene Superior Court. It was in evidence that the defendant had been arrested and’ carried before one Busbee, a Justice of the Peace, before whom he confessed the theft. The Justice said “I read the warrant to him and asked him if hej was guilty or not? He said,. guilty.” The confessions of the prisoner were reduced to writing.

This was an indictment for an assault and battery, tried before Tourgee, Judge, at Fall Term 1871, of Alamance Superior Court. Upon the evidence in the case, the jury returned a verdict of not guilty. After the verdict had been rendered, the Solicitor for the State moved to set it aside, upon the ground that one of the jurors had been improperly sworn ; the juror on account of conscientious scruples having declined to swear upon the book.

<p>This was a proceeding in bastardy, before Mitchell, Judge, at Fall Term 18*11, of Catawba Superior Court.</p> <p>The mother of the child had been examined before its birtb, by a Justice of tbe Peace, and the defendant had been reeog-nized to appear at the next term of the Court. The examination and proceedings were admitted to be regular.</p> <p>The defendant appeared and proved to the Court that the ■child was born alive, lived several days, but died before this term of the Court. Whereupon he moved to be discharged upon payment of costs. This motion was resisted by the Solicitor, who asked that the defendant be required to give bond to perform such orders as the Court might see proper to make and on failure to do so, that he be committed. The Court ordered that the defendant be discharged upon payment of costs. From which order the relator appealed.</p>