Volume 67 — North Carolina Reports

This was a civil action tried at the Superior Court of Duplin County, at the Fall Term, 1S71, before bis Honor liusselJ, J. The plaintiff alleged in his complaint that he delivered to the agent of the defendant, for transportation to Hartford, Connecticut, one barrel of wine, valued at one hundred and sixty-four dollars, to be paid for on delivery; that the defendant was a common carriel, and that it had failed to deliver the article-as it was its duty to do, wherefore the…

This was an action of assumpsit commenced before the adoption of the Code of Civil Procedure, and tried at the January Term, 1872, of the Superior Court of New ITanoyer County, before his Honor Hussell, J. The plaintiff declared as endorsee against the defendant, as endorser of an instrument, in the following words and figures: “ Agency' War Department, Wilmington, JavCy 18th, 1865. Confederate States Depository, Wilmington, pay Messrs.

Murder, tried bel ore Watts, J., at Spring Term, 1872, of the,Superior Court of Pitt. The prisoners were indicted in several counts, Edward Williams for the murder of Silas Avery, and Mary Ann Avery for being accessory before the fact. It was in evidence that the deceased was shot after dark, in his house, by some one standing outside, through an aperture between the logs of which the house was built.

Civil action tried before Olartce, J., at January Special Term, 1872, of the Superior Court of Wayne. It was instituted for tlie purpose of foreclosing a mortgage made to secure three promissory notes given by defendants Eulglmm and Whitfield to Nancy. B. Latham, also a defendant. The notes were in the usual form of promissory notes, given Nov. 27th, 186S, and payable with interest, March 1st, 1SG9, January 1st, 1870, and January 1st, 1871, respectively.

Civil'action tried before Watts, J., at Spring Term, 1872, of the Superior Court of Washington. The plaintiffs claimed two thousand dollars, as being due on an account for goods sold and delivered before the 1st of June, 1868. The defendant put iii evidence his discharge in bankruptcy, granted by the United States District Court for the District of Albemarle,' in North Carolina, discharging him from all debts contracted before June 1st, 1868.

<p>The Act of 1868 — ’69, chap. 18 creates two offences: 1st. Hunting on the Sabbath with a dog. 2d. Being found off one’s premises having a shotgun, rifle or pistol. Therefore, a conviction is sustainable under an indictment charging the defendant with being “ found off his premises on the Sabbath day, having with him a shot-gun, contrary to the form of the statute,” &c.</p>

Indictment for burning a barn containing grain, tried at Spring Term, 1872, of Bladen Superior Court, before Russell, J. The indictment charged that the defendants, “ on the 23d day of July, A. D., 1871, with force and arms, at and in the county of Bladen aforesaid, unlawfully ancl willfully did set fire to and burn a barn, the property of” &c., “the same at the time of the burning thereof having grain in it ” &c. Verdict of guilty.

Petition for partition of land, filed in the County Court of CüMbeeland in 1807, and ■ transferred to the Superior Court after the adoption of the present Constitution, and beard before Buxton, J., at Spring Term 1872. Tlie statements in the pleadings upon which the case turned are sufficiently given in the opinion of the Court.

<p>The declarations of a supposed partner, in the absence of the other, are nc.t admissible against the latter until the partnership has been proved aliunde.</p>

<p>In actions to recover the possession of personal property, the plaintiff may not, if he please, make the affidavit and give the undertaking required for the immediate delivery of the property to him. If he do not his judgment, if he succeeds, is for the possession of the property, or for. its value, and damages for detention, as in the old action of detinue.</p>

. Civil action tried befóse Tourgee, J., at Spring Term, 1872, of the Superior Court of Chatham. The substance of the pleadings upon which the case turns is set forth in the opinion of the Court.

Debt, brought in 1867 to the Superior Court of Pitt and tried at Fall Term, 1871, before Moore, J. The defendant’s pleas were general issue and fully administered. The plaintiff admitted the latter plea and the former was found in his favor. His Honor thereupon rendered a judgment qua/ndo against the defendant as administrator, and a judgment for plaintiff’s costs against him de bonispropriis, and the defendant appealed.

Civil action tried before Olarke, Ji, at Spring Term, 1872, of the Superior Court oi G-REeke. The action was commenced in January, 1869, by S. T. Jones & II. T. Bennett, under the name of S. T. Jones & Co., as plaintiffs, to recover possession of “ten new buggies” from the defendant as administrator of S. T. Stilley deceased ; and they having complied with the provisions oí Tit.

Motion to vacate attachment in the Superior Court of Watne, heard before Clarke, J., December 2d, 1870. The plaintiff commenced his action in October, 1870, on a money demand, for. work and labor done on the defendant’s farm, and filed his complaint claiming a lien on the land and crop of the defendant, and demanding an enforcement of the lien; and he filed an affidavit for an attachment under sec. 14, chap. 117, of the acts of 1868-’69.

Civil Action commenced before a Justice, and tried, upon appeal, before Buxton, J., at Spring Term, 1872, of the Superior Court of Cumberland. The action was for the recovery of$190 and interest, due by note given January 1st, 1869, by one R. M. Orrell, as agent of the defendant, to the plaintiffs “ as administrators of Benj.

Case agreed, upon questions arising in proceedings supplementary to execution, in the Superior Court of Rowan, heard before Cloud, J., at Chambers, in April, 1872. The plaintiffs having obtained judgment against tbe defendant for $200 and interest, before a Justice ot the Peace, had it docketed in the Superior Court of Rowan, and execution issued thereon.

Civil action tried before Bussell. J., at January Special Term, 1872, of the Superior Court of New Hanover. The defendants were sued as executors and trustees under the will of Nicholas N. Nixon, for the amount of certain loans and the price of goods, bought by the defendant Robinson for the purpose of cultivating land belonging to the estate of the testator. The provisions of the will of the testator in relation to said land are set forth in the opinion of the Court.

Eape tried before Cloud, J., at Spring Term, 1872, of the Superior Court of Davidson.

Larceny, tried before Tonrgee, J., at Spring Term, 1S72, of the Superior Court of Guilford. The defendant was charged with stealing certain pieces of fractional currency of the United States, the property of one J. C. Rees, from a drawer in a bar-room, in Greensboro’, kept by one Chadwick.

This was a civil action brought in the Superior Court of Granville county for the recovery of a tract of land, and for damages for the detention of it. The answ.er denied the ownership of the plaintiff and claimed that the title as well as the possession was in the defendant. By an order of the Court the case was referred to the Hon. William H. Battle, as a referee, to decide upon the issues of fact and law made by the pleadings.

Civil action for the recovery of a tract of land, tried before Clarice, J., at January Special Term, 1872, of the Superior Court of Wayne. Doth parties claimed as purchasers at sheriff’s sales under executions against D. B. Everitt. The executions through which the defendants claimed (as owner and tenants) were ven. expos. The judgments on which they were basgd were confessed by Everitt at November Term, 1866, of Wayne County Court.

Civil action, tried before Cloud, J!, at Spring Term, 1872, of the Superior Court of Davie. The action was brought on a note for $251.88, due March 12th, 1867, and the defendant relied, for his defence, on a discharge in bankruptcy, granted February 17th, 1870. The plaintiff replied, alleging several promises to pay the debt after the defendant was adjudicated a bankrupt, some made before and some after his discharge.

Civil action on a promissory note for $659.66, given October 20th, 1863, tried before Ilenry, Jat January Special Term, 1872, oí the Superior Court of Mecklenburg.

Motion to amend complaint made and heard before Buxton, J., at Spring Term, 1872, of the Superior Court oí Union. The opinion of the Court contains a sufficient statement of the points involved. The defendant insisted that his Honor had no power to grant leave to amend; and that if leave were granted, terms must be imposed. His Honor allowed the motion without costs, and the defendant appealed.

Action of debt, commenced in the Superior Court of Carteret, in 1866, and heard before Clarke, J., at Rail Term, 1871, upon a ease agreed. The defendant was sued as endorser of a note for $1,200, given to him September 7th, 1863, by one Hill King, and payable one day after date. The consideration of the note was a pair of mules sold by Jarman to King, worth about .$300.

Issue of -Bastardy tried before Clark, J. at Spring Term, 1871, of Northampton Superior Court. On the trial one Joseph Barham was introduced by the defendant to sustain the character of another witness. He stated he knew the general character of the witness, and it was good. He was then asked, Would you believe the witness on oath?

Civil action, for the recovery of [1,500 acres of land, tried before Clarke, J., at January (Special) Term, 1872, of the Superior Court of Wayne. The opinion of the Court contains a sufficient statement of the case.

Action on a guardian bond, heard before Moore, J., at Spring Term, 1872, of the Superior Court of Northampton. The action was brought in the name oí W. E. Cox, Solicitor, &c., against the defendant Peebles, as guardian of one Millard F. Peebles, and the sureties on his bond, for the recovery of such sum as might be ascertained to be due the ward, and for the appointment of a receiver.

<p>Where a mandamus was issued, commanding the Board of Commissioners of a county to levy a tax sufficient to pay the plaintiff’s claim against the county, and a rule was afterwards served upon them to show cause why they should not be attached for disobedience to the order; Held that an answer to the rule, that they had levied a sufficient tax, and placed the lists in the hands of the Sheriff, was responsive and sufficient, and the rule ought to be discharged.</p> <p>The Justices of a county having failed, for many years, to levy a tax to pay the interest on bonds issued by the county to aid in building a Railroad, the Board of Commissioners should not bo required at the suit of creditors to raise in one year, by taxation, the whole amount of interest in arrear; but in the case of mandamus ordering them to levy a tax and pay the interest, it was a prudent exercise of a discretion to raise part by taxation, and issue county bonds in order to raise the remainder.</p> <p>Semlile that proceedings by mandamus against the Commissioners of a county should be instituted in the Superior Court of their own county.</p>

Assumpsit, brought before the adoption of fee Code of Civil Procedure, and tried at Spring Term, 1872, of the Superior Court of Craven. The plaintiff declared on an oral promise, to pay $625 for the hire of certain negro slaves for the year 1861. He introduced oneP. W. Yarrell, for the purpose of proving that he, the said Yarrell, as agent of the defendant, with authority to do so, laired tlae said negroes for said year, agreeing to pay for them the said sum.

<p>In case of bailment, the owner of the property has no right of action against the bailee until the termination of the bailment; but, after the termination of the bailment, the owner can .recover without a demand for possession.</p> <p>When a bailee denies the title of the owner, and sets up title in himself, no demand for possession is necessary; and the defendant is precluded from objecting the want of demand, where, in his answer, he alleges property in himself.</p>

Rule on the defendant, as Sheriff, to require him to make title to the plaintiff, for certain land purchased at execution sale, heard before Olotid, A, at Spring Term, 1872, of the Superior Court of Rowan, upon a case agreed.

Debt, brought in 1866,to Estiierford Superior Court, and subsequently removed to Henderson Superior Court, and tried at Spring Term, 1872,. before Henry, J. The suit was brought for the- recovery of $114'.91 and interest, the amount of three notes executed in 1860 and 1861 by the defendant to the plaintiff, Justice, a. citizen of Eutlierf'ord County, for moneys which he had in hand as agent of Bronson, Iloyt & McEntire, a mercantile firm of New Yorlc.

Civil action tried before Cloud, J., at Spring Term, 1872, of Davidson Superior Court, having been removed from the Superior Court of Stokes, in which the action was commenced, upon the affidavit of the defendants. The bond sued on was executed to the plaintiff by one J. J. Martin, as Chairman of the County Court of Stokes, as principal, and the defendants as sureties, June 10th 1862, for the payment of $3,050.00, one day after date.

Civil action, commenced in Buncombe Superior Court, after-wards removed to Henderson and tried at Spring Term, 1872, of the Superior Court, before Ilenry, J. The opinion contains a sufficient statement of the case.

Civil action, tried before Cannon, J, at Spring Term, 1871, of the Superior Court of Cherokee. It was commenced before a Justice of the Peace,- for a balance due on a note, in the following words : “ On or before the 1st Monday in September, 1858, I, for the County of Cherokee, promise to pay S. M. Green one hundred dollars, for value received of him. This 6th day oí January, 1854. (Signed.) N. S. IIOWELL, Chairman.

Murder, tried before Logan, L, at Spring Term, 1872, of She Superior Court of Mecklenburg. • The prisoner was indicted jointly with one Nat. Caldwell and her mother, Minerva Davidson, for the murder of the infant ehild of the prisoner, Caldwell being charged as principal, and the prisoner and Minerva as accessories. There was A severance, and the -defendant was tried al-one, «pon a-count charging her with aiding and abetting the said Caldwell in killing the ehild. Nat.

Civil action, tried before Henry, J., at January Special Term, 1872, of the Superior Court of Mecklenburg. There was a verdict and judgment for the plaintiff,'and the defendant appealed. The facts are stated in the opinion of the Court. Cited, Scott y. Wil.*& W. R. R. Co., 4 Jones, 432, Ihrring y. Same, 10 Ire. 402, Avevy v. Saxton, 13 Ire. 247, and Acts of 1856’-57, chap. 7.

Civil action, tried before Mitchell, J., at Fall Term, 1871, of the Superior Court of Caldwell.

<p>Recordari heard before Mitchell, J, at Spring Term, 1812, of the Superior Court of Iredell.</p> <p>The plaintiff brought an action as administrator of James Howard, against the defendants, before a Justice of the Peace, to recover $156.65, alleged to be due by note given at the sale of the intestate’s property in the Spring of 1865, before the end of the war. The plaintiff contended that the note was'not liable to scale, but the magistrate gave judgment according to the scale, for $4.06 and costs. The plaintiff appealed, and the Justice sent up.the papers to the Judge, under sec. 539 C. C. P., (without the evidence). The Judge affirmed the judgment. Thereupon the plaintiff filed a petition for a Recordari, alleging the foregoing facts, and stating that he arrived at the the place of trial before the Justice, on the day fixed, before 11 o’clock, with his witnesses to prove the value of the property for which the note was given, but found that the Justice had already given j udgment according to the scale; that the Jnstice refused to open the case or grant a new trial; and that the case never been heard on its merits. His Honor thereupon ordered a writ of recordari to issue, and upon its return, on motion, ordered the case to be put on the Civil Issue docket of the Superior Court. The defendant appealed.</p>

Debt, begun in Henderson Superior Court in 1867, and tried at Spring Term, 1872, before Henry, J. The case is sufficiently stated in the opinion- of the Court. His Honor having ruled that the discharge in Bankruptcy of the defendant, Thomas A. Allen, would not avail, and refused to allow it to be set up, said defendant appealed.

Civil action upon a promissory note, given by the defendant’s testator to the plaintiff’s testator, and tried at the last term of Cumberland Superior Court, before Buxton, J. The note sued on was in the following words: December 12th, 1864. Borrowed of Duncan Murchison, Esq., President Little Eiver Manufacturing Company, twelve thousand dollars, onelialf of which I promise to pay two years after the termination of this war, without interest, in the then currency.

Special proceeding in Iredell Superior Court, for the sale of real estate to pay debts of a testator and a pecuniary legacy, brought before Mitdtélly J., at Chambers, by apppeal, in January 1872. Held: by high authority as not sufficient to constitute a charge to pay debts, Keeling v. Broxon, 5 Yes. 359, and by no construction can be extended to legacies.

This cause was before this Court at last term, when it was remanded to the Superior Court of Franklin, whence it came up that the facts might be ascertained and the rights of the parties determined.

Petition for reeordari and supersedeas, to bring up certain proceedings had before a Justice of the Peace, to thejSuperior Court of Gaston, heard by Logan, J., at Chambers, in Shelby, on the 9th of April, 1872. “The opinion of the Court contains a sufficient statement of the allegations of the petition. His Honor refused to grant the prayer, and the petitioner appealed.

Action for slander, tried before Gannon, J., at Fall Term, 1871, of the Superior Court of Forsythe.

Ejectment, commenced by service of the declaration April 4th, 1860, and tried before Logan, Jat Pall Term, 1811, ot the Superior Court of Cabarrus, upon the plea of General Issue. Held: that the endorsement on the deed, above quoted, had not the effect to re-eonvey the title from Linker to Taylor,

Proceedings sujplemcntary to execution, heard before Cloud, J., at Chambers, in June,. 1872, upon appeal from an order oí the Clerk of the Superior Court of Davidson. A judgment was rendered before a Justice of the Peace, in favor of the plaintiff, against the defendant, tor $289.62, in the county of Mecklenburg, on the 2d December, 1870, and docketed in the Superior Court of that county a few days thereafter, and also in the Superior Court of Davidson.

<p>This was a civil action to recover a tract of laud tried before his Honor, Bxixton, J., at Cumberland Superior Court, Spring Term, 1372.</p> <p>The case, so far as a statement of it is necessary to the proper understanding of the opinion of this Court, was as follows.</p> <p>The plaintiffs claimed as executors and by virtue of a power in the will of Duncan Murchison, who bad purchased the land in question at a sale made in March 1870, by John D. ”W illiams, one of the plaintiffs as trustee in a deed of trust executed by Christopher Munroe, to secure a debt due to Murchison, Reid & Co., a firm of which the said Duncan Murchison was a partner.</p> <p>In the deed in trust which bore date 25th April, 1859, it was declared that it was made subject to the satisfaction of a mortgage executed before that time, to wit, the 5th day of December, 1856, between the said Christopher Munroe of the first part and Duncan Murchison and others of the second part, this mortgage, it was alleged by the plaintiffs, had been discharged before the sale under the deed in trust. Besides the land, seventeen slaves were embraced in the deed in trust.</p> <p>On the part of the defendant it appeared that Christopher Munroe was, upon his own petition, declared a bankrupt in January I860, that shortly thereafter an assignee was appointed who sold the land in controversy, when it was purchased by the defendant, who was the widow of the said' bankrupt, he having died 'a short time before. His Honor was asked to charge the jury that the plaintiffs could not recover, for the following reasons:</p> <p>,1. Because Christopher Munroe, through whom the plaintiffs claim, had on the 5th December, 1856, by deed of mortgage, conveyed the land to Duncan Murchison and others in trust, with directions to reconvcy the residue after the payment of the debts, the title was still outstanding in the mortgagee, at the date of the deed of trust to John D. Williams, and there never had been any reconveyance. .</p> <p>2. Because the heirs or devisees as such of Duncan Murchison should have continued the prosecution of the suit, and not his personal representatives, who, it was contended, had no power given them to sue for and recover land.</p> <p>3. Because the value of the slave property, which was directed to be sold first by the deed in trust, was greatly in excess of the debts s'eeured, and that such slaves ought to have been sold, and it was laches in the trustee not to have sold them, which laches affected tho rights of the other creditors of Christopher Munroe, to which rights the defendant had succeeded by reason of her purchase, from the assignee in bankruptcy, of the land of her said husband.</p> <p>4. Because the power to sell the slaves and other property being by deed between the parties, the agreement to extend the time of sale, which was given by parol to the trustee, should have been given in writing, which not being done, the trustee, or the cestui que trusts, should be at the loss incident to the emancipation of the slaves, and they should not be allowed to have recourse to the land.</p> <p>5. Because the sale by the trustee occurred after the death ot Christopher Munroe, and inasmuch as the deed in trust required that the slaves should be sold first, the heirs of Christopher Munroe were entitled to notice.</p> <p>6. Because the defendant, being the widow of Christopher Munroe, was entitled to dower.</p> <p>In his charge to the jury, his Honor submitted two questions of fact to the consideration of the jury. 1st., Were the debts secured by the mortgage paid and satisfied before the sale made under the deed in trust, as testified by one of the witnesses; 2d, Were the slaves retained in the possession of Christopher Munroe after the execution of the deed of trust, and the sale of them under the said deed postponed by the trustee at the instance of Christopher Munroe with the concurrence of the cestui que trusts until their emancipation thus rendering recourse to the land necessary to pay the debts secured by the deed in trust. These questions of facts were found in the affirmative, and the plaintiffs obtained a verdict and judgment from which the defendant appealed.</p>

<p>The dissolution of a banking corporation, with no provision of law for collecting its debts, deprives it of the power to do so; but it was 7ielcl, that an act of the Legislature of South Carolina, passed since the war to enable its banks to renew their business, or to place them in liquidation; and a decree of a Court in that State declaring a certain bank to be insolvent, and putting it in liquidation, did not dissolve the corporation, but continued its existence for the purpose of collecting its debts and winding up its affairs.</p> <p>It appears that under the C. C. P.,' sec,. 399, which allows an appeal to the Supieme Court from an order oí the Superior Court, granting or refusing a new trial, the Supreme Court may grant a new trial because of the refusal of the continuance of his case to a party by the Superior Court, where in law he was entitled to it, or where the refusal was manifestly unjust and oppressive, and merits were shown.</p> <p>The act oí 1809 — ’TO, ch. 4, which authorizes the defendants in judgments obtained by banks chartered by this State'upon a note given to, or a contract made with a bank or its officers, to pay and satisfy the same with the bills of such bank, is constitutional, and construed with the act of 18G8, ch. 47, and 18G8-’G9, ch. 77, in pari materia, applies as well to foreign as to domestic banks.</p>

This was a motion for judgment and a writ of possession beard before Olarlce, Jat Spring Term, 1872, of Jones Court. This case was before the Court at January Term, 1872, and is reported in 66, N. ’C. 558. The facts are stated in the opinion of the Court.

This was a petition to set aside a sal® of land hoard before Moore, J., at Fall Term-, 1871, of Pitt Superior Court.

<p>A purchaser of land is never required to accept a doubtful title. He is not required to do so, although the fullest indemnity by way of general warranty may be tendered.</p> <p>When an action is brought by an Administrator against the obligors of a bond, to recover the purchase money for a tract of land, and it appears from the pleadings that there is a question as to the title of the land not “free from doubt,” and that the “right cannot be administered” without having the heirs at law and all parties in interest before the Court, the case, under the present system, will be remanded, with a view of making proper parties.</p>

Civil action tried before Clarke, J., at Spring Term, 1871, of Carteret Superior Court. The action was brought to recover possession of a lot in the town of Beaufort. Both parties claimed under Abigail Hill; the plaintiff under a judgment and execution against Abigail Hill and a sale by the sheriff in May, 1869 ; the defendant, Ward, under a purchase from the said Abigail Hill, prior to the teste of plaintiff’s execution, his deed bearing date November 1st. 1865.

Motion to set aside and vacate a judgment of the County Court, heard before Bussell, J., at January Term, 1872, of New Hanover Superior Court. Alexander I. Hewlett died in the County of New Hanover in the year 1865, having previously made and published his last will and testament. The will was duly admitted to Probate at Jan. Term, 1866, of the County Court, and the plaintiff Westcott was appointed adm’r., with the will annexed.

Action of assumpsit, begun under the old system, tried before Logan, J., Fall Term, 1871, of Mecklenburg Superior Court. The action was brought to recover tbe value of four bales of cotton, which came into possession of the defendant and were alleged to have been lost by negligence.

This Was a civil action, tried' before Henry, J., at a Special Term of Mecklenburg Superior Court, held in January, 1872. The plaintiff declared on three bonds of $500 each, issued by the Atlantic, Tennessee & Ohio Railroad Company, in April and May, 1862, and also for two hundred and three coupons of said bonds, of similar series. The payment of these bonds and coupons was guaranteed by the Charlotte & South Carolina Railroad Company.

<p>Civil action, tried before Mitchell, J., at Spring Term, 1872, of the Superior Court of Catawba.</p> <p>This case was before the Court at January Term, 1870, upon tbe complaint and demurrer ñled. The demurrer was overruled, and, by agreement of parties, the defendant was allowed to answer. His answer was filed ; issues of fact, under thd direction of tbe Court, were submitted to a jury, and several witnesses were examined.</p> <p>The material parts of the complaint and answer, the issues, and tbe facts proved, are stated in the opinion of the Court.</p> <p>Plaintiff moved for judgment on the fourth issue, which, with the response of the jury, is as follows.:</p> <p>“ Did Harshaw receive Confederate money in payment of said judgment, under fear and duress, and against his will?”</p> <p>Response of jury. “ lie did.”</p> <p>His Honor refused plaintiff’s prayer for judgment, and gave judgment for the defendant, from which plaintiff appealed to the Supreme Court.</p>

Motion to dimiss a civil suit, heard before'Logan, J., at the Superior Court of Cabarrus, Spring Term, 1872. The plaintiff sued out a summons from the Clerk of the Superior Court of Mecklenburg County, against the defendant, returnable to Spring Term, 1870, of Cabarrus Superior Court. The summons was returnedexecuted.” Plaintiff filed a complaint at the appearance term, and at the same term the defendant answered in bar of the action.

<p>Criminal action, tried before Buxton, J., at Spring Term, 1872, of the Superior Court of Moore.</p> <p>The indictment charged, in substance, that the defendant, A, J. Jones, “ was heretofore President of the Western Railroad Company, and that on or about the 18th of January, 1872, one L. O. Jones was elected President, to succeed the said A. J. Jones as President, and that on the 23d day of February, 1872, demand was made by the President and Directors of said Company upon the said A. J. Jones, that he should account with the President and Directors of said Company, who bad been elected to succeed him, the said A. J. Jones, President, and the late Directors of said Company, and transfer to them forthwith all the moneys, books, papers, choses in action, property and effects belonging to the said Company, and that the said A. J. Jones, &a., did refuse to account for and transfer to thes said President, &c.r all the money, books, papers, choses in action, property and. effects belonging to said Company, for which he ought to- have accounted and transferred to them, to wit: certain coupon bonds of the State of North Carolina, which said bonds were delivered to the said. A. J. Jones, President of the Western Railroad Company, on or about the 22d day of June, A. D. 1869, by the Public Treasurer of the said State,, in payment of the subscription made by the State of North Carolina to the capital stock of the said Western Railroad Company, amounting to about the sum of one million two hundred and sixty-four thousand nine hundred and eightytliree dollars and forty-two cents, which were received by the said A. J. J ones for the use and benefit of said Company, and also certain money which had been at times received by the said Jones while President, for the use and benefit of the Company ; to the evil example, &c., and contrary to the statute in, such case made and provided, and against the peace and dignity of the State.”</p> <p>Defendant pleaded not guilty-</p> <p>In the case made out and sent to this Co-urt by the Judge; below, all the testimony is incorporated. A greater part of. this testimony, which is very voluminous, is not important to be stated, under the view taken of the matter in the opinion of the Court.</p> <p>It was proved that the defendant, as President of the Western Railroad Company, received from the State Treasury 182 special tax bonds, with coupons attached, and running for thirty years. He also received thirty thousand dollars in cash,, in payment of interest on these bonds. A demand was made by the President and Directors for the bonds (special tax) issued for the benefit of the Company, and “all other assets and effects of the Company.” Defendant presented an account of $55,000 ; said he did not recognize the authority of the Directors, but proposed to leave the account if they would allow it. The Board refused to allow it. It was then withdrawn. He stated that the bonds had been placed in the hands oí brokers to be sold, and that only a portion had been sold. None of the bonds were returned to the Railroad Company or to the State Treasury.</p> <p>The counsel for 'the defendant, among other prayers for special instructions, asked the Court to charge the jury :</p> <p>That the act. of February 3d, 1869, was no longer operative, having been repealed by an act ratified 8th March, 1870.</p> <p><1.) That the repealing -act of 8th March, 1870, is valid, because the power of repeal was reserved to the Legislature by Art. 8, Sec. 1, of the Constitution.</p> <p>(2.) If the repealing act of March 8th is 'not-validinconsequence of the Legislature having no right to repeal, still the special tax bonds are not subjects to ‘be accounted for by the defendant; because they are mot named as such m the act of the 16th February, F871, under which the indictment is drawn, and because the act of 16th February, 1871, could not have these special tax bonds in view, as it was passed snbsecjuently to the act of 5th February, 1870, being the act to restore the credit oí the State, which required the return of these bonds to the State treasury.</p> <p>(3.) If the repealing act of 1870 is valid, it affected all the special tax bonds authorized by the act oí February 3d, 1869, to bo delivered to the Western Railroad Company, not only the $1,000,000 to pay the additional subscription, but also the $500,000 in bonds to be exchanged for second mortgage bonds, &c., &e.</p> <p>The Court charged, in response to this request, that whether the act of March 8th, 1870, was valid or not, it did not relieve the defendant from liability, under the act oí 16th February, 1871, for what he may have received for the use of the Railroad Company. Compliance with the act, requiring a return oí the bonds to the .State treasury, would have relieved the defendant from liability, but such compliance is nowhere alleged or proved.</p> <p>The Court was further of opinion, that, although the act of of February 16th, 1871, did not mention coupon bonds nomination, yet terms are used broad enough to embrace them,viz: all money, books, papers, choses in action, property, and effects of every kind and decription belonging to said company.</p> <p>Many other requests for special instructions were made. There were also exceptions to the ruling of the Court upon questions of evidence. To set these out in full is not necessary.</p> <p>The Judge, after an elaborate charge, concluded by saying: “ Upon the whole, so far as the legal positions assumed by the defendant’s counsel are concerned, the Court is of opinion, and so instructs the jury, that they are insufficient to shelter the defendant from legal liability under act of 16th February, 1871.”</p> <p>The jury returned a verdict of guilty ; Rule for new trial; Rule discharged. There was a motion tor venire de oiovo, which was also refused; Motion in arrest of judgment was overruled ; Judgment and appeal by defendant.</p>

<p>Indictment for forcible trespass, tried before Mitchell, J., at Spring Term, 1872, of the Superior Court oí Wilkes.</p> <p>It was in evidence, that on the 26th of February, 1872, the defendants went to the bouse of the prosecutor and put him and his family out of possession, and against his will. The defendant Ferguson was the sheriff. Jennings was a deputy. Powers and Hampton were summoned to assist. Peden was the plaintiff in an action before the Justice of the Peace, under the landlord and tenant act. Poster was the Justice of the Peace, and was not presept at the time of the eviction.</p> <p>The defendants justified under process, and showed an execution issued by Foster, Justice of the Peace, and directed to the Sheriff, commanding him to put Peden into possession of the lands on which the prosecutor lived.</p> <p>The State insisted that the process was void, and was no protection to the defendants, and offered in evidence a record of the proceedings, trial, verdict, orders, entries, &c., of the Justice of tlie Peace, and examined Foster as a witness. The foliowing is a summary of the proceedings :</p> <p>“ Motion to quash, on the ground.of a want of legal notice. Motion overrated. Defendant demanded a jury, which was granted, and a'jury summoned. Motion to dismiss, tor that Peden was not the agent of Mrs. King. Motion overruled, and adjudged that he was agent. Jury were empannelled, who say that they find in favor of the defendant. The jury dispersed'; ■afterwards were 'called back, and the following was added to the verdict: By defendant .giving security tor the rents of the year 1871, and on his failure to give security in fifteen days, execution to issue for the possession of the premises described in the affidavit. Plaintiff asked for an appeal, which was granted. .Afterwards, 24th of February, 1871, the following >order was made, viz: Defendant failing to give security, plaintiff 'declines to appeal, and asks for judgment and possession of the premises described, which is granted. The prosecutor was not present when this order was made, and he had no notice before.”</p> <p>The Justice of the Peace issued the process on the 24th of February, 1871. "The deputy sheriff went to prosecutor’s house on that day, and informed him that he had the writ, and ■asked him to vacate the premises. He refused to do so, and .forbade the sheriff from evicting him. On the 26th oí Feb*ruary, the .sheriff, with the other defendants, except Foster, who was not present, went to the house of the prosecutor and tunned him out. The sheriff returned the process “ executed.” Peden was present, but gave no assistance.</p> <p>Under the direction of the Court, a verdict was entered for itherState, the Judge reserving the questions of law. After-wards, upon consideration, the verdict was set aside, and a verdict of not guilty entered, and the State appealed.</p>

Civil Action, tried before Logan, J., at Spring Terra, 1872, ot Mecklenburg Court.

Civil action, tried before Henry, J., at a Special Term, January 1872, for Mecklenburg. The action was brought in the name of R. E. Davidson trastee, to use of Allison. The note upon which it is founded is fully set out, with the endorsement thereon, in the opinion of 'the Court. The case was tried before a Justiee of the Peace, and testimony was introduced by each party upon the merits. Judgment was rendered for the plaintiff, and defendant appealed to the Superior Court.

This was an action to subject real estate in the hands of a second purchaser, to the payment of the purchase money due on a Clerk and Master’s sale, tried before Cloud, J., Fall Term, 1871, of Rowan Superior Court.

This was an application for a writ of certiorari, made at January Term, 1872, oí the Supreme Court. The petition ot plaintiff stated, that a certain civil action had been brought by bim against the defendants, in Halifax Superior Court, in which said action be sought to cancel, upon the ground of fraud, among other things, a certain deed made by himself to one of the defendants, C. C. Shield, and a deed made by him to the other defendant, W. H. Shield.

<p>In the absence of fraud, the irregularity of a Marshal in selling land under execution without due advertisement, although it might expose him to an action at the suit of the party injured, does not'vifiate the sale.</p> <p>Where executions, issued from different Courts, are placed in the hand of different officers, and under these executions, giving equal power, the same land is levied upon, and sold by each one of those officers ■ Held, that the first sale passes the title of the defendant in the execution.</p> <p>The priority of the lien of executions, as between creditors, is of no moment as respects the ‘title of a purchaser.. Such matters only govern the application of the proceeds of the sale.</p>

Civil action tried before Henry, J., at Special Term of Mecklenburg Superior Court. The complaint alleged that plaintiffs were lawfully possessed of eighteen bales of cotton, and that on or about the — day of ---, 1866, the defendant unlawfully converted it to his own use. to their damage twenty-five hundred dollars. Defendant in his answer denied all the allegations in the complaint.

This was an action of detinue, instituted in the Superior Court of Mecklenburg, by order of the Supreme Court in the case of Stenhouse & McCauley against the plaintiffs and defendant. Plaintiff was directed to bring an action and tho defendant was required to admit the service and demand, &c. The cause was tried at a Special Term of Mecklenburg Superior Court, Moore, Jpresiding.

Action to recover possession of land, tried before Mitchell, J., at Spring Term, 1872, of Catawba Court. The plaintiff and defendant R. M. Whitener are heirs at law off David Whitener. Plaintiffs claim, as heirs at law', two-thirds of the land. R. M. Whitener claims the whole under the will of his father David Whitener.

Civil Action tried before Logan, J., Spring Term, 1872, of ©abarrus Superior Court. The complaint alleged that (original) plaintiff was the wife of one John Iline, who died in 1S56, having made liis last will and testament, in which he appointed the plaintiff and ono David White executrix and executor.

This was an application for a certiorari made before this Court at the present term, as a substitute for an appeal. D. G. Maxwell, the defendant in a suit of Charles Skinner, by his next friend, &c., against him, made affidavit stating, in substance, that a motion was made by plaintiffs counsel in the above stated case, at the recent term of Mecklenburg Superior Court, for the appointment of a receiver.

This was a civil action on a guardian bond, tried before Mitchell, J., at Fall Term, 1871, of Iredell Superior Court. The action was brought against the defendant Osborne, as administrator of W. W. Foote, guardian of the relator, and the other defendants as sureties on the bond. There was a reference to the clerk to state the account of the guardian. The clerk made a report to Fall Term, 1871, of the Superior Court, at which time exceptions were filed by the defendants.

This was a proceeding commenced before the Clerk of the Superior Court of Carteret County, to compel the defendant Saunders to sell the real estate oí his intestate for the payment of debts.

Eral® upon plaintiff, to show cause why it should not accept its hills in satisfaction of a judgment, heard before Logan, J.» at Spring Term, 1872, of Mecklenburg Superior Court. The plaintiff hadi obtained judgment against one Taylor and! defendant Hart tor $3,400, and execution was in the hands of the Sheriff.

This was an indictment for murder, fried before Watts, J., at Spring Term, 1872, of Edgecombe Superior Court. A j uror was challenged by the State for cause, as the case states, and asked if ho was opposed to capital punishment. He replied, that lie preferred to send a man to the penitentiary instead of hanging him — thought the law ought to be changed, and send all to the penitentiary for murder instead of hanging them.

<p>Civil Action tried before Cannon¡ J., at a Special Term of Stokes Superior Court, February, 1872.</p> <p>This action was to recover possession of a tract of land in Stokes County. The plaintiff'claimed the land under a judgment and execution against Richard Cox, a Sheriff’s sale and deed made in 1867.</p> <p>Defendant claimed under the defendant in the execution, Richard Cox, by deed bearing date in 1866, and prior to the teste of the execution and sale by the sheriff to plaintiff.</p> <p>There was no difficulty as to the identity of the land, or defendant’s possession. Plaintiff introduced evidence to show that the purchase by the defendant was fraudulent and void as to creditors. Many witnesses were examined as to the point. Defendant in reply examined testimony to show the honafides of his purchase, and among other things proposed to ask a witness this question. “ Whether Cox did not confess, in 1861 or 1862, an indebtedness to defendant of some $900.”</p> <p>This question was objected to, and ruled out by the Court. Defendant excepted. There were other rulings of his Honor excepted to, but as this is the only one discussed by the Court it is unnecessary to state the exceptions. Under instructions from the Court to which no exceptions were taken, there was a verdict for the plaintiff. Judgment and appeal by the defendant.</p>

This was a civil action, tried before Tourgee, J.*at Spring Term, 1872, of Alamance Superior Court. The action was brought upon a bond for the recovery of money. The defendant in his answer, by way of counterclaim, set up a bond executed by plaintiff on the 21st October, 1852, for $61.50. Plaintiff insisted upon the presumption of payment of said bond.

This was a case agreed, submitted to bis Honor, Logan, L., at Fpring Term, 1872, oí Mecklenburg Superior Court. The following are the iacts agreed and submitted to bis Honor; The Rock Island Manuiacturing Company executed an assignment in trust to T. W. Dewey, attacked to the complaint, marked “B,” and another marked “C,” in both of which it secured certain creditors represented by defendant Springs.

<p>Where the owner of land seeks to recover damages for the injury resulting from the location of a railroad on his land, he must pursue the remedy prescribed by the charter of the railroad company, as this statutory provision takes away, by implication, the common law remedy by action of trespass on the case.</p>

The prisoner was convicted of arson at Fall Term, 1871, of Crayen Superior Court. Judgment of death was pronounced. Prisoner appealed to the Supreme Court. At January Term, 1872, the judgment was arrested and the case remanded. At Spring Term, 1872, the case being called, the Solicitor moved for judgment according to the Act of 1869.

This was an indictment for larceny, with a count for receiving stolen goods, tried before Pool, J., at Spring Term, 1872, of Bertie Superior Court. The case was submitted to the jury at about 11 o’clock A. M., and the prisoner was committed to jail to await the ver diet. About 10 o’clock at night the Sheriff brought the jury to the Judge’s room. His Honor asked them, il they had agreed upou a verdict.

The following statement of the case was sent to this court: This was an indictment for larceny tried before Cloud, J., at Spring .Term A. D. 1S72, ot Forsythe Superior Court. The charge was, that the defendant had stolen a horse. In the progress of the trial, a witness for the State was asked if he had not been indicted and convicted for stealing plank, and if he had not left the country in consequence of it.

Motion to dismiss for want of a prosecution bond hoard be- ■ tore Logan, J., at Spring Term, 1872, of Cleaved and Superior Court. The facts and the point fn controversy are stated in thp opinion of the Court.

This was a civil action, tried before Tourgee, Jat Spring Term of Orange Superior Court, to recover from the defendant, tbe Sheriff of Orange County, tbe penalty of $100 for not selling certain lands, the.property of William W. Allison.

This was an issue, devisavit vel non tried before Pool, J., Pall Term, 1871, of Pasquotank Superior Court. A paper writing purporting to be the last will and testament of William To we was ottered for probate in solemn form. A caveat was entered, issues made up and tried in the Superior Court.

This was a motion to vacate a judgment upon the ground of “ excusable neglect,” heard before Tourcjee, Jat Spring Term, 1872, of Chatham Superior Court. The motion in the cause was made at Fall Term, 1871, at yrffich term bis Honor denied the motion and refused to vacate the judgment. From this judgment there was an appeal to the Supreme Court, and the case was heard at January Term, 1872. See 66 N. C. B. 392.

Civil Action to recover damages for the conversion of a horse, &c., tried before Buxton, A, at Fall Term, 1871, of Union Superior Court. Elizabeth Maxwell, the plaintiff, was examined as a witness and testified that the horse in controversy was in the possession of Green W. Houston when he died; aiter his .death, the defendant, who was administrator, told witness to come over to his house, and he would give up all her property in his possession.

This was a proceeding originally commenced before the Probate Judge of Hertford County upon the application of Miles Mitchell to have apprenticed to him several minor children, viz., Alfred, Hick, Thomas and Catherine Mitchell, children of Marina Mitchell. They were born in slavery, the property of Miles Mitchell, the applicant.

<p>•A testator, who died in 1864, gave the -bulk oí his real and "personal estate to three-sisters, equally to 'be divided between them, and directed his Executor to sell on twelve months’ credit. The sale was made in November, 1864: the husbands of two of the sisters, one of whom was the guardian of the third, bought most of the property, a negro and a tew arricies of personal property being bought for the ward. Byagreement, instead of giving their notes, they gave receipts to the Executor for the amounts of their respective purchases in part of their wives shares, and, at the same time, the Executor passed over to one of them, ■whose purchases were less in value than the others, a -considerable amount of solvent notes given to the testator, some 'before the -war^ Held, that, notwithstanding there was no intent on the -part -of the Executor and said purchasers to defraud the infant sister,-as the departure from the directions dn the will, as to sale on credit, resulted in ■loss to-her, -she is entitled now to be put in rhe situation she would have occupied "had said directions been carried out literally, and to have an equal division of the testator’s property.</p> <p>In such case, receipts given ’by the ward, soon after she became of a-ge, for the amount of her purchases at the sale, and for 'her Share of confederate money, received on th-e day of sale, will not have the effect to ratily the said dealings with the estate.</p> <p>A sale by an Executor in November-, 1'864, of land, farming utensils, &c., directed to be sold on twelve months’ credit for Confederate money is not an exercise of due prudence.</p> <p>A guardian may concur, in behalf of his ward, in a partition of property in which the ward is a tenant in common, provided the partition be equal. But when the guardian was personally interested, he cannot insist upon a partition agreed to by him, by which his ward gets less than bis share.</p>

<p>There is a marked distinction between cases where notice is necessary as preliminary to the action, to enable the defendant to pay and save the costs of the action, and eases where notice is necessary to constitute a cause of action.</p> <p>Where a Confederate States' bond was transferred in payment of a debt, and the assignor promised that if it was not right he would make it so or pay $10,000, if, in point of fact, the transfer was not valid, the promise was absolate, and the party was bound to pay.</p> <p>When each of the parties to such a contract have equal knowledge of the validity of the transfer, according to the rules of tlio treasury department, and equal means of acquiring correct information in reference to the same, it was incumbent upon the party promising to pay to take such steps as were necessary to make the transfer yalid if it were not so. A failure to do so leaves it to be inferred that he was-content to be charged with the amount in money.</p>

<p>To avail himself of error in the rejection of evidence, a party must show distinctly what the evidence was, in order that the relevancy may appear, and that a prejudice has arisen to him on account of its rejection.</p> <p>All indictment charging that the defendant “unlawfully, wilfully and maliciously, did enter upon the lands of R. B., there situate, and did then and there set fire to the woods on said land,’’ is sufficient under 20th section, chapter 35, Revised Code,</p>

This was a petition for a writ of mandamus against the County Commissioners of McDowell County, filed on the 18th day of October, 1810, and heard before Henry, J., at a Special Term, of Mecklenburg Superior Court.

Civil action tried before Watts, J., at a Special Court for Halifax county, December 1871. The action was brought for the alleged conversion of a bale of cotton.

Civil action to recover possession of a tract of land tried before Logan, =/., at Spring Term, 1872, of Gaston Superior Court. Plaintiff claimed under a sheriffs deed, and ven. ex. issued from the Superior Court. The evidence was, that an attachment was issued by a justice of the peace against one G. C. Rhyne for $175 due to the plaintiffs.

This was a civil action, tried before Cloud, J., at Spring Term, 1872, of Rowan Superior Court.

Motion to set aside a judgment, heard before Glarh, Jat Chambers. No notice was given by the defendant, against whom the jndgment was rendered, to the plaintiff, of the motion to set aside and vacate the judgment. Ilis Honor ordered the judgment to be vacated and that defendant be permitted to plead. Prom this order plaintiff appealed.

<p>Ejectment tried before Cloud, J., Spring Term, 1872, of Stokes Superior Court.</p> <p>This was an action to recover possession of a tract of land in Stokes County. The action was commenced under the old system.</p> <p>The laets were : that the land had been granted, and that in the year 1858, one John G. Smith, then residing on the land in Stokes county, “was due for the taxes of that year, (1858) $5.40,** and a tax list, properly made out and certified, came into the hands of John Martin, then Sheriff of Stokes county, and who continued to be Sheriff during the year 1859. The Sheriff failed to collect the taxes, but accounted for them himself when they were to be paid.</p> <p>On the 23d February, 1861, an act was passed by the General -Assembly, giving John Martin, late Sheriff of Stokes county, power to collect arrears of taxes, but limiting him to the collection of taxes due for the three years immediately preceding the 1st day of October, 1860. Under this act the ex-Sheriff made a list of the lands of delinquents, including a tract of one hundred and lifty acres, as the property of John G. Smith, and therein charged said Smith as owing $5.40 for the taxes of 1858. This list was returned to the County Court of Stokes at March Term, 1862, was recorded on the minutes of that term, read aloud, posted as required by law7, and all other things, in respect to that return, were done as required bylaw7. Afterwards, to-wit: at September term, 1862, of the County Court, the lessor of The plaintiff proved by oral testimony, that the lands of said Smith were sold at public auction by John Martin, ox-Sheriff, when the lessor became the purchaser at the sum of $6.15, taxes and costs.</p> <p>The plaintiff read in evidence, a deed from John Martin, former Sheriff, purporting to convey said 150 acres; said deed was dated August 1864. Plaintiff stopped his case. Defendant moved that plaintiff bo non-snited, on the ground that no return of sales wras made to the County Court, and recorded, and read, and posted, as required by law, and for want thereof that the sale of the land and the deed made in pursuance thereof passed no title. The Court overruled the motion, ft wras found as a fact, that John G. Smith sold and conveyed the said tract ol land to the defendant, John D. Allen, on thelSrh day October, 185S, and at that time Smith removed from the place to another county, and defendant took possession, and has remained,in possession ever since.</p> <p>Upon this state of facts defendant asked the Corn! to charge the jury,</p> <p>1st. That the deed of John Martin passed no title, for the reason that no list of the sales was made at September Term, 1862, and returned, read, and recorded as required by law.</p> <p>2d. That under the act of February, 1861, the authority to collect arreai s of taxes for three years before the first ot October, 1860, was an authority to collect, with power to distrain the property then owmed by Smith, and did not extend to the property in controversy, which Smith liad sold to the defendant October 15th, 1858, and the sale and deed by Martin, under these circumstances, passed no title.</p> <p>3d. That the deed of John Martin, former sheriff, and made in 1864, instead of being made by the existing sheriff, was void.</p> <p>The Court charged.</p> <p>1st. That the failure to return a list of sales to the Court as referred to in the first request by the defendant was not material, and that the deed of the ex sheriff was sufficient without such return.</p> <p>2d. That under the act of 1861, John Martin, former sheriff', had authority to collect the taxes due from Smith for 1858, and a right to distrain the laud in controversy, notwithstanding the sale to the defendant.</p> <p>3d. That the former sheriff was the proper person to make the deed.</p> <p>Defendant excepted to the charge of the Court. There was a verdict for the plaintiff. Judgment. Defendant appealed to the Supreme Court.</p>

Motion to amend pleadings, heard before Gannon, Ji, at Spring Term, 1872, of Cherokee Superior Court. This was a special proceeding, commenced' in the Probate Court of Cherokee, by the plaintiff as guardian against the defendants, as administrators oí A. Sudderth, iormer guardian oí A. McD., and Ann Elizabeth llarshaw.

Action of assumpsit, tried before Cloudy J-, at Spring Term, 1872, of Eorsythe. Superior Court.. The plaintiff declared against the defendant as assignor of a note given in 1862, for the sum of $916.75. Defendant pleaded general issue, tender, failure of consideration, scale, &c., &c. The consideration of the note was a quantity of tobacco and borrowed Confederate money. The note was endorsed by the payee, in blank. The defendant endorsed it to the plaintiff.

Motion to quash, beard before Watts, J., at Fall Term, 1871, of Wake Superior Court. This was an indictment, against the defendant founded upon a-supposed violation of the 38th chapter of the acts of 1869-70. Such parts and sections of the .act as are material to the case are set out in the opinion of the Judge. The charges in the indictment are also stated in an abbreviated form in the opinion. There was a motion to quash. The motion was sustained and the indictment quashed.

<p>Appeal from a judgment rendered by Buxton, J., at Spring Term, 1872, of Richmond Superior Court.</p> <p>This was a special proceeding instituted by plaintiffs against the defendants, as executors of Mini Wall deed. A reference was Lad and report made by the Clerk, exceptions were filed and passed upon, and an appeal taken to the Supreme Court at June Term, 1S7Í. At that Term the exceptions were debated am! the cause remanded, in order that matters connected with the first exception might be enquired into. In addition to the facts stated in the reported case, 65 N. C. R., the Judge found these additional tacts, viz; “That James A. Covington qualified as administrator of John P. Covington, dec’d, father of the plaintiffs, Bascombe, John P., and Virginia Covington in 1857, and entered into bond in the snm of $30,000 with W. E. Covington, J. W. Leak and B. B. McKenzie, as sureties, which bond was then sufficient and solvent, and is now solvent'for an amount greater than the amount reported in favor of Mial Wall, guardian of the minor children, in October 1863, viz: $3,830.-63, that at October Term, 1863, of the County Court of Richmond, the report of the commissioners to audit and settle the accounts of J. A. Covington dec’d, was in all things confirmed, and ordered to he recorded. Upon this finding the Judge entered this judgment, viz: “These facts taken in con- , nection with the facts heretofore found by the Court in refer- i ence to said exception No. 1, satisfy the Court that said excep- } tion ought to be overruled and it is so overruled, and the estate j of Mial "Wall charged with the item embraced therein, $3,-830.63, with compound interest from 20th October, 1863, in National currency.” Defendants appealed.</p>

<p>An act of the General Assembly, authorizing the people of a County to take stock in a Railroad Company, and to determine the question by a popular vote, and tax themselves to pay for it, is constitutional.</p> <p>Note. — The case of SimontonY. The Commissioners of 2>w?'7cí, involvin g the same question, was decided at this term, and for the same reasons judgment was given for the plaintiff.</p>

Plaintiff alleged that in September, 187ft, he and the defendant formed a partnership in the city of Charlotte, N. C., for the purpose of conducting the business of merchant tailoring ; that defendant was to furnish $5,000, and plaintiff was to use his skill and experience as*a set-off to such capital; that extensive purchases of material, &c., were made in the northern cities, and the business was conducted profitably until January, 1872, when it was dissolved by mutual…

Civil action, to recover money had and received to use of plaintiff, tried before JBtixton, J., Spring Term, 1872, of CUMBERLAND Superior Court. Plaintiff'testified, that he went to the defendant’s store in Payetteville, to examine an article which defendant had advertised as “ Phoenix Guano that defendant recommended it highly as a fertilizer, and said that- it was superior to the Peruvian, in many respects.

This was a civil action, tried before Henry, J., at a Special Term of Mecklenburg Superior Court. The following case agreed was presented to his Honor : The plaintiffs, on the 16th day of February, 1870, were the owners of thirty-four shares of stock in the North Carolina Railroad Company, upon which a dividend of six per centum was declared on the said 16th of February, 1870, three per centum payable on April 1st, 1870, and three per centum on 1st July, 1870.

<p>This was a petition filed by plaintiff, as Administrator of John Maxwell, deceased, against the,heirs-at-law, to make real estate assets. Heard before Cloud, J., Spring Term, 1872, of the Superior Court of Davie.</p> <p>At Spring Term, 1871, this entry is made : “ Referred to Charles Price and E. F. Lunn, to take an account of the personal estate.” At Fall Term, 1871, the referees filed a report, to which exceptions were filed. The exceptions being beard, the report was set aside, and an order made that the referees report under former order to the next term of the Court. The referees agreed upon a report, but before it was signed by both of them, the plaintiff, on the 30th day of March, 1872, filed two notices in the clerk’s office, notifying the defendants that he elected to end the reference, as provided in section 247, C. C. P.</p> <p>The names of Messrs. Boyden and Bailey, attornies, were signed to the answer. No place or person was named, where or upon whom notices could be served. It was admitted that Mr. Boyden was on the Supreme Court bench and that Mr, Bailey lived in the town of Salisbury, and that E. D. Scaies represented the defendants, before the referees, and these facts were known to the plaintiff. On Monday, Spring Term 1872, the referees filed a report. On that day, plaintiff called the attention of the Court to the notices filed in the office, and insisted that the reference was ended, and moved that issues be drawn and submitted to a jury. Ilis Honor determined, as a question of law, that as the defendants had been notified in pursuance of section 247, O. C. P., that plaintiff had elected to end the reference, and this having been done more than sixty days after the reference was “ submitted” and before the report was delivered, the reference was ended, and the parties should prepare to try the action as though the reference had not been made.</p> <p>His Honor refused to confirm the report. Defendant appealed to the Supreme Court.</p>

Civil actiost for the recovery ot possession of land, tried before ClariceT The following case agreed was sent, up : “ It is agreed that, on the 31st day of December, 1861, the defendant Erancis Merritt and one Harget executed a bond for $200, to J. S. Wilkins, and that on the 1st day of November, 1867, judgment- was rendered on the bond against the obligors Merritt and Harget for $269,90.

This was an action commenced the 7th day of July, 1869, to recover real estate, and tried before Olarke, J., at a special session of Wayne Superior Court, September 1871. The plaintiff introduced the following record from Wayne County Court at May Term 1868: “ Davis & Kirby vs. John Davis and Wife.

Petition in this Court for the removal of a cause, brought up by appeal from the Superior Court -of Halifax, to the Circuit Court of the United States for the District of North Carolina. The opinion of the Court contains a sufficient statement of the case.

<p>Where a testatrix bequeathed a share of her estate to her Executor, “In trust that he shall put the amount of said share at interest on good security, and pay the annual interest to my son for the use ot his family, <&c.” and the Executor assumed the trust ami invested the funds as directed by the will, collecting and paying tbe annual interest until 1863, when, without any necessity for it, and with a view simply to surrender the trust, which was not done, ho collected the amount due and invested it in Confederate bonds which were lost; Held, that the ‘Executor was chargeable with the trust fund, and the annual interest arising thereon. . •</p>

<p>Where one acquires the legal title to land, by means of an undertaking with the party entitled to the equitable estate, that he will hold the estate subject to the equity; a refusal to carry out the undertaking is a breach of confidence, and on that ground the party is converted into a trustee;</p> <p>Therefore, where a power of sale was given by a mortgagor to the mortgagee, in consideration of which the mortgagee agreed to convey a portion of the land embraced in the deed, to a trustee, for the benefit of the mortgagor’s wife; iit umlield, that (his contract did not come within the provisions of the statute of frauds, and that the mortgagee should be held a trustee, and bound to convey, according to the agreement. In such cases an agreement proved only by parol will not suffice, there must be facts de hors.</p> <p>Where a party buys as agent of the mortgagee, as in this case, and with notice of the agreement, ho wiil stand in the place of the mortgagee, and is affected by the same equities.</p>

<p>Civil ActioN to set aside a deed, tried before Oloud, J., at Fall Term, 1872, of RowaN S-npérior Court.</p> <p>The complaint alleged that the defendant, James O. Turner, was tbe owner oí a house and lot in Salisbury ; that he was indebted for the purchase money, some $1,500, and that he was also indebted to Goldsborough and Tate in three notes of $1,000 each, with interest due thereon ; that in order to secure these debts he executed a deed in trust to the plaintiff, with a proviso that if the debts were not paid on the 4th July, 1867, the trustee should sell, &c., &c ; that a thousand dollars was paid in June 1867; that the remainder was not paid on the 4th of July, as stipulated in the deed; that, alter postponing from time to time, the plaintiff and James C. Turner agreed that if he would pay $2,300, and the debt due to one Josephi for the purchase money, he, plaintiff, would convey to J. Calder Turner the lot in question ; that plaintiff prepared a deed to the said J. Calder Turner, and sent it to his attorneys, Blackmer & McCorkle, to be delivered only on the condition that the sum of $2,300 was paid in cash and the $1,800 secured or arranged, so as to relieve the plaintiff as trustee as aforesaid ; that afterwards James C. Turner paid to plaintiff’s attorneys $2,000 in cash, and gave them a check on one Q-. W. Swepson for $300, payable at 90 days, assuring them that the check would be promptly paid, and at the same time the said Turner gave his check to ono John I. Shaver, who was his surety on the note given for the purchase money, on the said Swepson for $1,200 at 30 days, in full of the amount due Josephi. That Shaver, confiding in the representation that the check would be paid, agreed that the property should be released from the incumbrance of the said debt. That the holder of the note for $1,500 did not assent to the arrangement, and that there is still due on the same some $1,200. That the said checks were presented to the said Swepson and not accepted. That the said Turner had no funds in his hands and was in fact indebted to Swepson, and the fact was well known to both the defendants. That when these checks were accepted the deed was delivered by plaintiff’s attorneys to James C. Turner. Plaintiff- further alleges that Turner has not paid the checks drawn by him. That he is insolvent, and that he knew that the terms of compromise were that the deed was not to be delivered until the cash for the $2,300, was paid and the note for the purchase money was arranged. That J. Calder Turner had no funds in Swepson’s hands when the checks were drawn. Plaintiff asked for judgment that the deed be delivered up to be cancelled and that the land be sold, &c., and that J. Calder Turner be enjoined from selling, &o.</p> <p>The defendant J. C. Turner admits giving the checks on Swepson, and that they were not paid. Hej denies all fraud, and that he misrepresented the facts to plaintiffs attorneys. He denies that he had any knowledge, or that the contract was, that the deed was not to be delivered until the cash was paid, but that any negotiable securities were to be taken. He alleges that Swepson was at the time a man of large means and prompt in his payments. That he had no funds in the hands of Swepson at the time the checks were drawn, but avers that he had business transactions with him. and 'had secured his legal promise to honor the checks, and that the agents of plaintiff knew he had no funds in the hands of Swepson.</p> <p>He avers that the condition and financial reputation of Swepson was well known to the attorneys of plaintiff, and to John I. Shaver, and the drafts were accepted in full payment ot his indebtedness.</p> <p>The defendant J. Calder Turner denies any knowledge of the negotiations between plaintiff and his co-defendant, relative to the delivery of'the deed upon certain conditions, or anything ot the giving or accepting the checks on Swepson. He avers that he purchased the house and lot in question from James C. Turner for the sum of $2,000, which he paid, and which was applied to the payment of the debt due Goldsborough and Tate. Defendant denies that Josephi did not give his assent to the acceptance ot the check on Swepson, but avers that he and Goldsborough and Tate, through their legal counsel and agents, accepted the checks in payment ot the debts due from James C. Turner.</p> <p>He denies knowledge of any fraud, deceit or misrepresentations on the part of James O. Tutner or any one else, to obtain the. deed from the plaintiff, but on the contrary he says he purchased in good faith, that he paid therefor the sum of $2,000, and that he took the conveyance from the trustee, with the legal assent of the cestui que trusts.</p> <p>After the jury were empanelled, defendants’ counsel suggested that Josephi and Goldsborough and Tate were necessary parties, and moved to have them made parties. This motion was refused. Defendants’ counsel thereupon prayed an appeal. The Court ordered plaintiff’s counsel to proceed and defendants excepted.</p> <p>The following issues were then submitted to the jury:</p> <p>1st. Did the defendant James C. Turner fraudulently procure the delivery of the paper writing purporting to be a deed, as alleged ?</p> <p>2d. Did Blackmer & McCorkle have authority to deliver the paper writing except upon payment of $2,300 in cash ?</p> <p>3d. Did defendants, or either of them, pay $2,300, according to the terms of the compromise with the plaintiff?</p> <p>4th. Was J. Calder Turner a purchaser of the house and lot described in the pleadings for value, and without knowledge of the tacts upon which plaintiff founds his equity?</p> <p>The evidence relative to the second issue was a letter addressed to Blaekmer & McCorkle, as follows:</p> <p>Gentlemen : —We have written to you by Major Turner authorizing yon to settle our claim, which is $2,491.33, for which we have agreed to accept $2,300, Major Turner paying all costs and other charges except- your commissions.</p> <p>Please have-the matter fixed without delay, and remit ns the $2,300 less your commissions. Yours &c.</p> <p>GOLDSBOROUGH & TATE.”</p> <p>P. S. “Major Turner is to pay cash in Baltimore or New York funds.”</p> <p>There was also evidence that Turner represented to Blackmer & McCorkle, before they took the draft, that he had authority to draw on Swepson, and that his draft would be promptly accepted and paid. It was also in evidence, that Swepson was reputed to he a man of. large means, that he lived in this State, and the draft was drawn at 90 days, payable at the Raleigh National Bank, was presented and refused acceptance and returned protested. It was contended that only a portion of the $2,300 was paid in Hnited States currency, and the remainder in the drait on Swepson. His Honor left it to the jury to say, from all the circumstances, whether Blackmer & McCorlde had authority to accept the draft, and whether it constituted a payment. The defendants contended that, as Swepson Was shown to be a man of large means, a draft on him was such funds as was within the terms of the letter.</p> <p>The jury returned the following verdict in writing;</p> <p>To the 1st; Answer. — He did.</p> <p>To the 2d ; Answer. — They did not.</p> <p>To the 3d; Answer. — They did not.</p> <p>To the 4dh ; Answer. — He did not pay full value.</p> <p>In addition to the foregoing statement, which appears in the record as “ Statement for Supreme Court,” the Judge ren- • dered the following jndgment: “ The Court doth declare that</p> <p>the defendant, James O. Turner, on the 4th day of July, 1866-, executed to the plaintiff a deed in trust of the premises described in the complaint, to secure the payment of debts due to Goldsborough and Tate, and A. Josephi, and by the terms of said deed in trust, if said debts were not paid and satisfied on or before the 4th day of J uly, 1867, it became the duty of the pL.intiff to sell said premises, and out of the proceeds first pay the expenses of said trust and then said debts ; that on the 4th day of June, 1867, James C. Turner paid to the plaintiff $1,000, in part payment of the debt due to Goldsborough and Tate ; that in the fall of 1869, the said Goldsborough and Tate agreed with said James O. Turner to accept in full satisfaction of their debt the sum of $2,300, if paid in a tew days, and the plaintiff was instructed and agreed upon the prompt payment of $2,300 to the attorneys of Goldsborough and Tate, Blackmer & McCorlde, and also the debt due Josephi, to make a deed for the premises to the defendant J. Calder Turner. Accordingly a paper writing, in the form of a deed, was prepared and forwarded, purporting to convey the premises. That James O. Turner was, during the transaction, and is yet, wholly insolvent. The paper writing was afterwards delivered by tb attorneys, Blackmer & McCorkle, to tbe said James C. Turner. The foregoing facts are declared, as stated in the complaint and not controverted by the answer. The Court doth further declare, as facts found by the jury, that defendants, nor neither of them, paid to said Blackmer & McCorkle the sum of $2,300 at any time, but that only $2,000 was paid.</p> <p>That Blackmer & McCorkle, at the time of the delivery of the said paper writing, had not received the $2,300, and the same had not been paid by the defendants, or either of them, and that Blackmer & McCorkle had no authority to deliver said paper writing except upon the payment of the sum of $2,300.</p> <p>That the defendant James C. Turner fraudulently procured the delivery of the paper writing, purporting to be a deed, by false representations.</p> <p>That J. Calder Turner was not a purchaser for the full value thereof. It is therefore adjudged that the said paper writing was delivered to Blackmer & McCorkle as an escrow; that it was delivered to them upon certain conditions, which have not been complied with, viz : the payment of $2,300.</p> <p>It is further ordered and adjudged that the said paper writing be delivered up, by the said J. Calder Turner, for cancellation, and that said Turner execute to the plaintiff a quitclaim deed for the premies, and that the said premises be sold according to the terms of the deed in trust, and that the expenses of the trust be first paid, and the balance be applied to the payment of the debts as specified in the trust, and that the defendants be enjoined from setting up or taking advantage of the said paper writing,” &c., &c.</p> <p>There was a rule for a venire de novo. Rule discharged. Defendants appealed.</p>

Action of ejectment, tried before Hussell, Jat Spring Term, 1872, of New Hanover Superior Court. The action was brought in 1858, to recover possession of three lots outside of the old, but within the limits of the present city of Wilmington.

<p>Where there is no express contract between husband and wife, the law of Hie matrimonial domicil controls, as to the rights of property there situate, and as to personal property every where. Therefore, where a bond was given by a man to a single woman, both parties being resident in the State of Pennsylvania, and a judgment was obtained in the Courts of this State, and the parties afterwards married in Pennsylvania ; it was held, that the rights ot the parties in reference to said judgment were governed by the laws of .Pennsylvania, whereby, “All the estate or property, which may be owned by any single woman, continues to be hers after marriage.”</p> <p>Upon amotion to dissolve an injunction,'where a fund has been taken into the custody of the law, the rule is. that as the Court has hold of it it will not let it go, if the plaintiff show probable cause from which it may be reas nably inferred that he will be able to make out his case on the final hearing. On the contrary, if it appear from the pleadings and affidavits that there is not probable cause, the injunction will be dissolved.</p>

Motion to dismiss a suic, heard before Henry, J., at a Special Ter in of the Superior Court of Mecklenburg. A summons in a civil action, to enforce a lien on real estate, was issued in favor of the plaintiff, who was a resident of this State, against the Southern Express Company, a foreign corporation, and one Cunningham, and made returnable to Fall Term, I8t>9, of Mecklenburg Superior Court.

Civil action tried before Watts, J., at a Special Term of Wake Superior Court, 1872. This action was brought by the plaintiffs as creditors of the estate of John Hutchins, deceased, against J. F. Hutchins personally and as executor, and against J. P. H. Russ and wife, and Russ as guardian of his minor children, legatees, devisees and heirs at law of John Hutchins, deceased, and against the other defendants, Wilder and others, purchasers of the real estate devised.

This was an indictment for rape, tried before Clárice, J., at Spring Term, 1872, of Robeson Superior Court. The prisoner, John Brown, was charged with rape, upon the person of one Wiriuy McDaniel; and one A. C. Moody was likewise indicted as aiding and abetting Brown was tried alone, the other party having escaped. The principal witness on the part of the State was Winriy McDaniel, who swore that John Brown and Moody came to her house in May.

Civil action, tried before Cloud, -J., at Spring Term-, -1872, of Rowan Superior Court. The action was brought to recover damages -to a school (house. Plaintiff exhibited a deed from the defendant Kesler to the school committee ot District 38, in Rowan county, dated (Nov, 27th, 1848. This evidence was objected to, but received by the Court.

Rule in this Court upon the sureties of an appellant, to show cause why they shall not pay his costs, judgment having been ■rendered here in his favor. The opinion of the Court contains a sufficient statement

Civil. Action, tried before Tourgee. J., at Spring Term, 1872, of Chatham Superior Court. The action was brought by plaintiffs, administrators of John A. Johnson, against the defendant as administrator of B. Pattersliall, to recover the sum of $225 and interest from lfitb February, 1857, covenanted to be paid by the intestate of the defendant. Defendantpleaded, amongother things, retainer and no assets.

This was an indictment for highway robbery, tried before Henry, J., at Spring Term, 1872, of Yancey Superior Court.

Civil Action tried before Henry, J.y at a Special Term of. Mecklenburg Superior Court, January, 1872. The plaintiff declared on the following bond : “$787.79. Charlotte, Jan. 22d, 3 861. One day after date I promise to pay Mary Jane Stitt seven hundred and eighty seven dollars and seventy-nine cents. ■ J. M. MILLER, [Seal.] The following credits were endorsed : $100.

Civil action tried before Mitchell, J., at Spring Term, 1872, of Wilkes Superior Court. The plaintiff complained, that tbe defendant Calvert contracted to sell liim, for the sum of $200, two tracts of land, each containing fifty acres.

This was an indictment for murder, tiied before Henry, J at Spring Term,. 1872, of Yancey Superior Court. The prisoner was charged with the murder of James Haney. The evidence was that the homicide was committed in November, 1865.

This was an indictment tried before Clarice, J., at Spring Term, 1872, of Green Superior Court. The first count in the indictment charged the defendant with wilfully neglecting to provide an adequate support for his wife and children. .The second count charged a wilful abandonment of his wife, &e., &c. The only witness introduced by the State was Cherry Brown, who vpas asked if she was not the wife of the defendant.

Civil Action, tried before Touryee, J., at Spring Teim, 1872, oí Alamance Superior Court. The action was brought for the recovery of money due on,a bond dated August 25th, 1804. Upon the trial the plaintiff offered to show the consideration of the bond. His Honor refused to allow the evidence, holding that when the pleadings make no issue of fact it was a question of law for the Court to decide.

This was an action of debt on the guardian bond of Ridley Brown as guardian of Mary F. Brown, to which the defendant Jacob F. Brown was surety. It was brought in the name of the State on the relation of Jones, who was substituted as trustee under a decree of the Court of Equity of Warren county, at Fall Term, 1863. On .the trial at Fall Term, 1871, before Waits, J., there was judgment for plaintiff, and defendant appealed.

The statement made by the presiding Judge is given in full. The annexed diagram indicates the points in controversy. The plaintiffs beginning corner is indicated by an arrow. Tbe defendant’s corner by a band. (See diagram.) Civil action for trespass on land, tried before Buxton, J., at Fall Term, 1871, of Harnett Superior Court. Action commenced 27th September, 1870.