Volume 68 — North Carolina Reports

<p>The maker of a note due a bank has the right to tender in payment of such note, as equivalent to gold and silver coin, the bills issued by the bank.</p> <p>A bank cannot, by assignment of its effects, choses in action, &c., deprive a maker of a note due the bank of his right to pay the same with the bills of the bank; nor can the bank, by any authority derived from the Legislature, deprive the maker of such right of payment of a note due the bank, in. bills of the bank.</p>

This was a civil action tried before Pool, J., at the Pall Term, 1871, of Camben Superior Court. Held: that even upon his own showing, the plaintiff' could not recover.

Civil action, for the recovery of certain iron saved from the wreck of the ship “ Pontiac,” tried before Clarice, J., at. the Fall Term, 1872, of the Superior Court of Cárteres county.

Civil action, tried before Henry, J., at Fall Term, 1872, of the Superior Court of Watauga county. The action, a summary proceeding to recover possession of land, commenced in a Justice’s Court, from whose judgment the plaintiff appealed. In the Superior Court, there was a verdict and judgment against the plaintiff, and he again appealed. The facts are stated in the opinion of the Court.

Civil action, tried at June Term, 1872,-of the Superior Court of New Hanover, county, before Russell, J. The plaintiffs commenced their action before a Justice of the Peace, demanding the payment of certain coupons attached to bonds issued by defendant, under “An Act to enable the City of Wilmington to provide for the debt of said city contracted prior to the year 1866,” ratified the 27th day of February, 1867.' Judgment was rendered by the Justice in favor of the…

Civil action, tried at the Fall Term, 1872, of the Superior Court of the county of Guilford, before Tow-gee, J. The case agreed by counsel for both parties, and sent to this Court as part of the record, is substantially as follows: The action is brought to recover damages for the alleged breach of a covenant contained in a deed, made and delivered by the defendant -Glenn and his wife to the plaintiff, an incorporated bank, on the 28th day of December, 1868, for the expressed…

<p>Civil action, tried at the Fall Term, 1872, of Person .‘Superior Court, before Tourgee, J.</p> <p>The suit was brought on the guardian bond given by the •defendant, J. A. Stanfield, and the other defendants, his ¡sureties, as guardian of the feme plaintiff, Nicey, wife of- the «other plaintiff, James F. Winstead, and was tried below upon exceptions filed by both parties to the report of the referee. His Honor sustained the only exception of the plaintiffs to the report which were not withdrawn, and overruled those of the defendants. The defendants appealed.</p> <p>The points presented, with the exceptions, and the evidence pertinent thereto, are stated in the opinion of the Court.</p>

Devisa-vit vel non, tried before. Tourgee, J., at the Spring; 'Term, 1872, of the Superior Court of the county of Randolph. On the trial below, the caveators offered evidence, which being objected to by the propounders of the will, was ruled •out by the Court. To this ruling of his Honor the caveators •excepted; and the jury finding the issues in favor of the -will, it was adjudged by the Court to be established; from which judgment the caveators appealed.

<p>Civil action to recover possession of land and damages, •tried before Glarhe, J., at Jones Superior Court, Fall Term, 1872.</p> <p>The plaintiff claimed the land in question under a deed from the Sheriff of Jones county, who sold the same under .a judgment and execution for $1,004 against the defendant Wilcox, issued from the Superior Court of said county, at Spring Term, 1870. The plaintiff showed that Wilcox was in possession of the land at" the time of the Sheriff’s sale, and remained in possession until the 1st of January, 1872.</p> <p>The defendant Andrews, who, on motion, had been made party defendant, read in evidence a deed from the other defendants, Wilcox and his wife, made to him 24th November, 1868, for the land in dispute, which deed had been duly proved, and registered in December following ; and in which a consideration of $1,750 was acknowledged to have been received. It wTas also in evidence, that immediately after .the execution of the deed and the private examination of ■the wife, at the residence of one Mrs. Pranks, the grantor ■and grantee, the present defendants, went to the house of W. H. Bryan, the Register of Deeds of Jones County, a short distance across the street, to get him to calculate the interest ■on two notes, which Wilcox, the grantor, had agreed to receive in part payment for the land; that immediately upon the calculation of the interest, Andrews, in the presence of 'Bryan,.paid Wilcox $200 in cash, and the balance of the first payment, to-wit: $250, he paid in the notes of Wilcox, and one Neathercut, the payment of the latter being by him, the said Andrews, guaranteed. At the same time, he gave Wilcox two notes, for $650 each. Plaintiff objected to the introduction of parol evidence concerning these notes, which objection being overruled, he excepted.</p> <p>The defendant, Andrews, further proved, that in 1871, he paid Wilcox the amount of the two notes for $650 each, in the following manner, to-wit: $740 in cash; three notes on Wilcox for $90 each, given by him for the rent of the land for the years 1869-’70-’71, and a note on W. PI. Bryan and Wm. Poy for the balance. The latter note was proved to be good. It was also in evidence that when Andrews took up the notes of $650 each, he destroyed them. The plaintiff again excepted to his Honor’s allowing the witness to to speak of the notes, unless they were produced. It appeared from the evidence that $1,750 was a fair price for the land; that Andrews since his purchase of the land had rented a part thereof to Wilcox, who was his brother-in-law, for $90 per annum, and that during his tenancy, Wilcox had set out a few apple trees on the place, which he obtained from a neighbor.</p> <p>In reply to some of the foregoing testimony, the plaintiff proved that Wilcox had said to him, when he signed the note as surety, upon which judgment was obtained and the land sold and bought by the plaintiff, as appears in the beginning of this statement,- that he, Wilcox, “never expected to pay it.”</p> <p>His Iionor charged the jury, that the party alleging fraud is bound to prove it; and that the plaintiffs must by facts and circumstances show to the satisfaction of the jury, that the defendants have been guilty of fraud in devising and executing the deed from Wilcox to Andrews, which, if the plaintiff fail to do, he cannot recover. Conveyances made to hinder, delay or defraud creditors are void. So, too, are all conveyances made by men in failing circumstances, as to creditors, to be looked upon with suspicion and jealousy; and likewise those between near relations. If the transaction is secret, or attended with other suspicious circumstances, if there be a gross inadequacy of price, if the seller continues in possession of the property, using it as his own, without any satisfactory explanation, all are viewed with suspicion when the rights of creditors are concerned. But no one of these suspicious circumstances or badges of fraud is sufficient of itself, simply and alone, to invalidate a eonveyence. That the fact of their being creditors will not invalidate it, nor can it be left to a jury to find fraud from that circumstance. That our Supreme Court has held, in White’s case, 13 Ired. 265, “ that a fraudulent conveyance for a fair price, bona fide paid, conveys a good title.”</p> <p>If then, upon a candid consideration of all the facts and circumstances, the jury shall be satisfied that the transaction betweenfAndrews and Wilcox was a bona fide transaction, for a fair price, then they will find for the defendants, but if the jury find that the transaction was a sham, a. fraud, or a device to cover up the property of Wilcox, for the purpose or defrauding or hindering his creditors in realizing their claims against him, then the plaintiff is entitled to their verdict.</p> <p>Verdict for the defendants. Motion for a new trial; motion overruled. Judgment against plaintiff for costs, from, which he appealed.</p>

Petition, to rehear a decree and former order by the Court of Equity of Alamance county, in 1868, in a petition of the present plaintiffs, ex parte, for the sale of land for partition, heard before Tourgee, J., at Fall Term, 1872, of the Superior Court of said county. His Honor, upon hearing the petition, answer, affidavits, &c., being of opinion that the plaintiffs, through their own laches, had lost their right to have the order and decree re-heard, dismissed the petition.

Civil action, tried at the Pall Term, 1872, of the Superior Court for Rockingham county, (to which it had been removed from the Superior Court of Caswell, on the affidavit of the defendants,) before Tourgee, J. On the trial below, the plaintiff recovered a judgment only for a part of the sum demanded in his complaint, from which judgment he appealed. The other material facts in the case are fully stated in the ■opinion of the Court.

<p>'On a trial for murder, a witness for the State has a right to relate to the jury the whole of a conversation which took place between the witness and the accused on the day after the alleged homicide; although in that conversation the witness, in answer to questions asked by the accused, expresses the belief, giving the reason for such belief, that the prisoner committed the homicide.</p>

Civil action brought to the Fall Term, 1872, of the Superior Court of New Hanover county, before Russell, J., for the dissolution of a copartnership, and for an account; .and in the meantime the plaintiff moved for an injunction ■and the appointment of a receiver. His Honor granted the injunction at the time of the plaintiff’s filing his complaint, to wit: 2nd November, 1872 which was continued to Fall Term, 1872.

Case agreed submitted to Russell, J., at the Spring Term, 1872, of the Superior Court of Bladen county. The case as disclosed by the record sent to this Court, is; as follows: Lucy Ann Brown died in the State of Mississippi, having first made and published her last will and testament, which was admitted to probate in the county of Lowndes, in that State, in April, 1871.

<p>Petition for a writ of habeas corpus ad testificandum, heard before Logan, J., at the Fall Term, 1872, of the Superior Court of Ruthereord county.</p> <p>Solicitor Bynum, for the State, presented the following petition to the court below, to wit:</p> <p>“STATE OP NORTH CAROLINA, Rutherford County, Superior Court, Fall Term, 1872.</p> <p>State v. Henderson Adair, et al.</p> <p>To the Honorable Geo. W. Logan, Judge of the 9th Judicial District, sitting for Rutherford County, in said District:</p> <p>The petition of W. T. Bynum, Solicitor for said District, prosecuting in behalf of the State, showeththat one Henderson Adair is now confined in the jail of said county, on a charge of the murder of William H. Steadman, alias Lee, .and others, all of said county.</p> <p>That one Martin Bainard is a material witness in behalf of the State, on the trial of said prisoner, without whose testimony he cannot safely try said action.</p> <p>That a bill of indictment against said Henderson Adair; Is now pending before the Grand Jury of said county at the present term, and cannot be safely proceeded with without said testimony.</p> <p>That said witness, Martin Bainard, is confined in tne common jail of Henderson county, under sentence of death for murder.</p> <p>Wherefore, the petitioners asks your Honor to grant the .State’s writ of habeas corpus ad testificandum, commanding the sheriff of Henderson county to have the said Martin Bainard before the said Court instanter, to testify in behalf of the State in said criminal action as aforesaid.</p> <p>W. P. BYNUM, Solicitor.</p> <p>Sworn to before me this 1st October, 1872. G. W. Logan, J. S. C.”</p> <p>The Court refused to grant the prayer of the petition, from which judgment the State appealed.</p>

Motion by the defendants after due notice to the plain-, tiff, to set aside the judgment rendered at the last (June,) 'Term of this Court, and the execution thereon issued. See '67 N. C. Rep. 47. The grounds for the motion is sufficiently set out in the <opinion of the Court.

<p>Civil action tried before Clarke, J, at the Fall Term, 1872, of the Superior Court of Craven county.</p> <p>The plaintiffs claim certain real property in the town off Newbern, under the will of Mary A. Lindsay, the aunt of' the feme plaintiffs, Elizabeth and Winnifred. The will was; dated loth October, 1869, and admitted to probate the 23d April, 1870. Besides the real estate given to her nieces, and to the Trustees of the Baptist Church, of which the testatrix had been a member for a number of years, she bequeathed to the nieces her personal property.</p> <p>In their complaint the plaintiffs state, that the property in dispute is in possession of the defendants, who claim under a deed purporting to have been made by -the testatrix to Elizabeth, the wife of the other defendant, October 1st, 1867. This deed, the plaintiffs allege, is a fraud, and demand judgment, that it be so declared, and that the defendants be compelled by a proper order of the Court to convey to them. To support the allegation of fraud, the complaint alleges-that the defendant, Wm. A. Pearce, was the confidential agent of the testatrix, and imposed upon her to sign the-deed, when she thought she was signing a will. That he prócured the deed to be written by one Wm. G. Bryan, who-went to the house of the testatrix with him and witnessed her signing it; that it was a voluntary conveyance, without any consideration, and kept by the defendants for nearly three years before it was registered. And further, that the testatrix (the grantor in the deed) was an ignorant and illiterate woman, nearly sixty years of age, easily imposed upon, and spoke frequently of the writing she had given to Pearce, as her “ willand asked/when she executed the will of the 15th October, 1869, if it did not revoke (destroy) the one-•which she had made to him, she at the time being angry with him; that the deed was made to Pearce’s wife, for the reason he was in embarrassed circumstances, and soon after ■went into bankruptcy.</p> <p>The defendants, in their answer, deny the allegations of fraud and improper dealing in obtaining the deed made to the wife; alleging that the same was so made in consideration of the friendly feelings she entertained towards them, for the many acts of kindness and attention rendered on their part. They further deny the power of the persons named, to take under the will, as Trustees of the Baptist Church, as they are not incorporated; and that Z. Slade, one .of the witnesses to the will, and a Trustee of the Church, .could not prove the devise, being interested as such trustee.</p> <p>It appeared from the evidence, that the defendants were frequently at Mrs., Lindsay’s, the testatrix, and that Pearce, the husband, acted often as her agent, buying wood, &e. That his place of business was close to her dwelling, easily accessible from his back door. That the testatrix, before she fell out with him, spoke of Pearce as being her friend, and that she preferred him to her relations. After the disagreement, she wanted the witness Slade to write her will, giving her property to the church. This he refused to do, when she informed him she would get C. C. Clark to write it for her. This will, witness and one.Amyett witnessed. She, the testatrix, wanted to know if the will would revoke the one made to Pearce; that she always spoke of it as a will, and never as a deed.</p> <p>Bryan testified, that he wrote the deed for Pearce, that he carried it to Mrs. Lindsay and read it over to her carefully she signed it and he witnessed it. At the time, she said she wanted Pearce to have her property on account of his kindness to her. After leaving her room, the witness ¡Derceiving the revenue stamps were not cancelled on the deed, he carried it back to her, and had them cancelled. She again reiterated to witness the obligations she felt under to Pearce, when they were alone. There was no money paid.</p> <p>The plaintiffs asked his Honor to charge the jury, that if they believed that W. H. Pearce was the confidential agent and manager of the affairs of Mary A. Lindsay at the time the deed was executed, it was void, without other evidence •of fraud, and that the jury should find for the plaintiffs. This, the Court declined to do; and instructed the jury that if they were satisfied that Pearce was the confidential adviser and agent of Mrs. Lindsey, that he was like a steward in England, and that he stood in the intimate relation of -attorney and client, so that he was implicitly trusted, and looked to for advice and direction, then it was a strong badge of fraud, if he procured a conveyance of property for his own benefit, as in the case of a conveyance to his wife, and with other evidence may justify you in finding fraud ; but the proof must be clear and satisfactory.</p> <p>Verdict for the defendants. Plaintiffs moved for judgment non obstante veridicto. Motion refused. Plaintiffs again moved for a new trial. Motion overruled. Judgment for costs, and appeal.</p>

This case also comes to the Supreme Court upon the appeal of the defendants. It will be seen from the following opinion of the Chief Justice, that the points raised in the Court below, by the defendant, are unne lessary to be stated, especially after the decision on the plair^ jiff’s appeal.

Motion to vacate an order of arrest, heard before Logan, /., at Fall Term, 1872, of Oleaveland Superior Court. The action was for slander, and the plaintiff was permitted,, upon filing the proper affidavit, to sue in forma pauperis.. Having also filed the affidavit required by sec. 149, Code of Civil Procedure,- that the action was for an injury to her character, the Court issued an order of arrest and the defendants gave bail.

Motion to vacate and set aside an order, enjoining the collection of sundry executions in favor of the plaintiff and . against the defendant, heard before Clarice, J., at the Fall ' Term, 1871, of Wilson Superior Court. The plaintiff obtained, before a Justice of the Peace in dhe county of New Hanover, on the_29th June, 1871, judgments against the defendant for certain sums in three separate actions and for costs.

Civil action tried before Buxton, J., at the Pall Term, 1872, of Harnett Superior Court. The following is the case stated by his Honor and sent to this Court with the transcript of the record of the Superior Court.

<p>Civil action heard by IPaíís, /., at the Pall Term, 1872, of Wake Superior Court, upon the following case, agreed:</p> <p>“ 1. Lawrence Hinton died on the 26th day of September, 1864, leaving a last will and testament which was duly admitted to probate in said county of Wake; and from which the plaintiff, at May Term, 1866, of Wake county Court, dissented. (So much of the will as is pertinent to the point decided, is fully stated in the opinion of the Court.)</p> <p>2. That said Lawrence Hinton left him surviving, a widow, the plaintiff, and the following children, to-wit: Isabella, who was born on the 10th day of July, 1852; Annie M., who was born on the 6th day of November, 1853; Ransom, who was born on the 26th day of April, 1858, and Mary L., who was born on the 18th day of October, 1863...</p> <p>3. That said children have resided with their said mother since the death of the testator ; she paying for their tuition and clothing and furnishing them with food at her own table, as per exhibits, &c.</p> <p>4. That the estate of the said testator consists of $4,055.37, proceeds of the sales of land; now invested in bonds and notes, and about 570 acres of land, (291 acres of which have been assigned to plaintiff for dower,) of the estimated value of $6,000.</p> <p>5. There has been paid to plaintiff, during, the year 1868, $218.50, and during the year, 1871, $640.75, which .are admitted to be all, or very nearly all, the rents and profits arising from said land and interest on said money, during the time embraced by the charges made in said exhibits. These sums have proved insufficient to pay the charges preferred by the plaintiff.</p> <p>The plaintiff insists:</p> <p>(1.) That the defendant, as executor is directed, in case the annual income derived from the said estate is not sufficient for the maintenance and education of the children, to furnish to the plaintiff for that purpose, sufficient funds from the principal thereof.</p> <p>(2.) That although the sums expended or charged for tuition, clothing and board for the children respectively shall be unequal, yet the sum total of all such expenditures and charges, is a charge upon the estate, and not by the portions of the same to which each child would be entitled if equally divided, and this shall be.done until the oldest of the said children should become of age or marry.</p> <p>_ (3. That the articles furnished by the plaintiff were proper, and such as were contemplated by the testator in making his said will.</p> <p>It is submitted to the Court to decide:</p> <p>1st. Whether the plaintiff is entitled to paid any part of her demand out of the principal of the fund raised from the sale of the lands.</p> <p>2. If she is so entitled, whether such part of her demand shall be paid out of said funds, as a common fund, or the proper charges and expenditures of each child shall be paid out of his or her equal portion of said funds.</p> <p>3d. If the Court shall be of opinion, that the plaintiff is entitled to be paid any part of her demand in either way, then the demand shall be referred to a referee, to ascertain what portion or items of the same is a proper charge as well in the aggregate against all of the children, as separately against each child.</p> <p>It is admitted, that since the institution of this suit, one of the children of the testator, Isabella, married on or about the 1st day of December, 1872.</p> <p>His Honor, after argument, gave judgment for the plaintiff, from whieh the defendant appealed.</p>

Civil action, tried before Moore, J, at the July (Special) Term, 1871, of the Superior Court of Mecklenburg county.. The plaintiffs sued the defendants, before the change in our system of pleadings, in Case, declaring against the-•Company as a common carrier for an overcharge of freight, and for the non-delivery of nineteen bales of cotton which 'were put upon the defendant’s road.

Civil action, tried before Mitchell, J., at Fall Term, 1872, of Iredell Superior Court. In his complaint the plaintiff alleged, that at Spring Term, 1869, of Iredell Superior Court, he obtained “an absolute judgment” against the testator of the defendant, and one T. B. Neill, who were executors of John Neill, and also against one Falls, and that the assignee of Falls had paid one-half of the judgment.

. Civil action tried before Clarice, J., at the Spring Term, 1872, of Lenoir Superior Court. The suit was brought by plaintiff to foreclose a certain mortgage made by defendant Matilda and her husband, since dead, to secure the sum of $2,000, of which there was due at the time the complaint was filed $1,440.80.

Indictment for murder, tried before Cloud, J., at the Fall ■Term, 1872, of the Superior Court of Davidson county. The defendant was indicted for killing one Jesse F. Harris. ■-'On the trial in the Superior Court, a number of exceptions uvere taken to the rulings of his Honor on points arising, •both in. relation to the selection of the jury and to the admission of evidence, and also to his Honor’s charge to the jury after the evidence and arguments had closed.

Civil action, tried before Logan, J., at the Fall Term, 1872, of the Superior Court of Rutherford county. The suit originally was brought in a Justice’s Court on a note for $100, given by one Hamilton to the Trustees of the Methodist Church at Rutherfordton, the payment of which had been guaranteed by the defendants. The plaintiff, who now is the party in interest, recovered before the Justice, and the defendants appealed to the Superior Court.

This 'is the plaintiff’s appeal in the foregoing case. No facts, except those therein stated, were elicited upon the trial; and the ground of the plaintiff’s appeal, as appears from the transcript, and as is set out in the case wherein the defendants appealed, is, for the rejection of certain evidence offered by him on the trial. From the decision of his Honor, rejecting the evidence, the plaintiff appealed.

Civil action, heard before\ Cannon, /., at Fall Term, 1872, of Cherokee county, upon a motion to re-refer an account. The suit was brought by the plaintiff, a former Sheriff, against the defendants, who were the sureties of one of his deputies, for taxes collected and not accounted for.

<p>A voluntary payment, with a knowledge of all the facts, cannot be recovered" back, although there was no debt; a payment, under a mistake of fact, may.</p> <p>If one knowing that he has no claim upon another, sues out legal process, against him and seizes his person or property, and the defendant, acting upon the false representations of the plaintiff, and not being able at the time by reasonable diligence, to know or to prove that such representations-are false, pays the demand, he may recover it back in a subsequent action.</p> <p>If the instructions, asked on a trial in the Superior Court, and given in the precise words asked for by the Court, are so vague and obscure as to admit of two different constructions, one of which may possibly mislead the jury, it is error, and a good cause for a venire de novo.</p>

Civil action, tried before Hewry, J., at the January (Special Term, 1872, of the Superior Court of Mecklenburg county. In his complaint, the plaintiff alleged that he was in possession of a stock of goods on and before the 19th February, 1869, which were in store at Grier’s storehouse, con.sisting of a general assortment of the value of about $1,200. That the defendant unlawfully took the goods, carried them away and still detains them.

Civil action, in the nature of a bill of interpleader, heard before Cloud, J., at the Special (January) Term, 1873, of Halifax Superior Court.

Civil action, tried before Watts, J, at the Fall Term, 1872, of Warren Superior Court, upon the following case AGREED. “ On the 12th April, 1870, the defendant, Mark P. Jones, executed a mortgage to the defendants, Peter R. Davis and C. T. Sims, conveying to them a tract of land therein described, to secure two bonds in favor of the defendant, L. G. Ward, guardian, and against said Mark P. Jones, as principal, and said Peter R. D,avis and C. T. Sims, as sureties; one in the…

Civil action, commenced before a Justice of the Peace, ,and carried by appeal to the Superior Court of Buncombe county, in which it was tried by Henry, J., at Fall Term, 1872. From the judgment of his Honor, dismissing the appeal, The plaintiff appealed. The facts are stated in the opinion of the Court.

Civil action, (exceptions to the report of a referee,) tried before Mitchell, J., at the Fall Term, 1872, of Iredell Superior Court, The suit was brought on the bond given by defendant, as guardian of the relator. At Fall Term, 1871, it was referred to R. S. McLaughlin, to state the account between the parties, which was done; and at the ensuing term defendant filed exceptions to the account, objecting to certain finding of facts by the referee.

Indictment for larceny, tried before Moore, J., at the ••Spring Term, 1872, of the Superior Court of Granville •county. The jury returned a verdict of guilty. Motion for a new Irial; motion refused. Defendant appealed. The facts pertinent to the points raised are stated in the ♦opinion of the Court.

,^at Rowan Superior Court, at Fall Term, 1872. In his complaint, filed at Fall Term, 1872, of Rowan Superior Court, the plaintiff alleges, that on the 18th August, 1860, C. F. Fisher, the intestate of the administrators, who, together with the heirs of the said C. F. Fisher, are defendants in this action, sold a tract of land situate in the county of Davidson, to the defendant, A. H. March, for the sum of $3,500, and entered into a contract, covenanting to make title to said…

Civil action, heard upon the report of the commissioner •and the exceptions thereto before Mitchell, J., at Fall Term, 1872, of Iredell Superior Court. The “ case stated,” accompánying the transcript to this •Court, is in substance what follows: Alexander R. Lawrence, late of Iredell county, died intestate in 1862, leaving ten children, his only heirs and next of kind, and of whom the four relatives in this action were minors.

Civil Action, tried before Mitchell, J., at the Fall Term, Term, 1872, of Ashe Superior Court. The plaintiff, as administrator of one David Blevins, had filed a petition in the proper Court to sell the land of his intestate to pay debts. The sale was regularly ordered, and when it took place the defendant objected to it, claiming it as his own. The land concerning which this action was brought sold for $5.

Devisavit vel non, tried at the Fall Term, 1872, of the Superior Court of Guilfobd county, before Tourgee, J. The script propounded in the Probate Court, was, by the plaintiffs, alleged to be the last will and testament of one Andrew D. Lindsay, and to he altogether in his handwriting. The questions arising upon the trial in the Court, the issues submitted to the jury, and the evidence introduced on the trial, are fully set out in the opinion of the Court.

Motion to make one Peebles a party defendant, heard, by Cloud, J, at the Special (January) Term, of Halifax Superior Court. On the trial below, his Honor allowed the motion, and the plaintiff appealed. The facts are stated in the opinion of the Court.

Civil action, tried by Cloud, J., at the Special (January) Terna, 1873, of Halifax Superior Court. The plaintiff sued the defendants on a note given by them to a former administrator (pendente lite) of his intestate, for property purchased at a sale of su-ch first administrator. As a defense, tfie defendants allege in their answer that Whitmore, the administrator pendente lite induced the defendant, Wm.

Petition for Divorce a vinculo matrimonii, heard by Mitchell, J., at Fall Term, 1872, of the Superior Court of Wilkes county. Tlie complaint alleged adultery, abandonment and cruel treatment as the grounds upon which the petition is filed, and prays a divorce from the bonds of matrimony, and a decree-for alimony.

Motion, to set aside a former judgment of condemnation heard by Cannon, J., at the Fall Term, 1871, of the Superior Court for Cherokee county. The original was a proceeding supplemental to execution, instituted by the defendant in this action to condemn to his «se a certain debt, owing by one Blackwell, as is alleged, to ■S. E. Williams, against whom the defendant had a judgment. The debt owing by Blackwell was claimed by the ■plaintiff, the wife of Williams.

Criminal action certified to this Court in obedience to a writ of Certiorari, issued upon the petition of the defendant at the last term; an appeal having been refused by Moore, tT, at Spring Term, 1872, of Halifax Superior Court.

<p>Special proceeding, for partition, and sale for partition, ■of certain lands, commenced in the Probate Court of Halifax county, and heard by Watts, J., at Chambers, January, 23d, 1873.</p> <p>The following facts were certified as found by the Judge •of Probate, and by him transmitted to his Honor, with the questions of law raised thereon:</p> <p>“ 1. That one Joseph Whitehead, domiciled in Halifax ■county, died in 1833, leaving a last will and testament, which was proved at August Term, 1833, of Halifax County Court, a copy of which,” &c.</p> <p>2. That said testator was twice married, and had issue by his first marriage,-who survived him; the defendants, Patsy, wife of John A. Stamps, Eliza Howell and Thomas Whitehead, who died thereafter, leaving issue, the defendants, Lucy, Mary and Eliza Whitehead, also John Whitehead, who has since died, leaving issue the defendants, A. J. Whitehead, Mary A. Parker, wife of Mark Parker, Louisa Cherry, wife of Amos Cherry, Turner and John T. Whitehead, and also C.Whitehead, who intermarried with one Candy Howell, and died leaving issue, the defendants, Mary, Sarah, Margaret, Brinkley, Temperance and Jane Eliza Howell. By his second wife, Sally, mentioned in his last will and testament, the said testator had issue, the plaintiffs, Sarah, wife of ¥m. P. Threewitts, Dorothy, wife of Marcellus Pope, Mary, wife of George W. Spivy, [and the [defendants, Edwin Whitehead and N^ncy, who intermarried with one Luke Howell, and died leaving issue, the plaintiffs, Benjamin T. Howell, and Sarah F., wife of ¥m.‘T. Joyner, and Wiley Whitehead, who died without leaving issue.</p> <p>3. That all the lands of which®[said testator died seized and possessed of, was the tract described in the complaint, and that his wife, Sally, died in February, 1872.</p> <p>4. That the defendant, Edwin Whitehead, in the year 1845, purchased the interest of the ® defendant, Joseph Whitehead, in said lands and became the owner thereof.</p> <p>5. That said Wiley Whitehead died in September, 1845, intestate as to his interest in said land, and without issue.</p> <p>6. That the said testator during his lifetime fully provided for his sons, and partially for his daughters of his first marriage, by advancements of portions of his estate; to the sons, both real and personal estate, and to his daughters only personal property; but made no provisions by advancement or otherwise for the children of his second marriage.</p> <p>•7. That the defendant, Edwin Whitehead, made permanent improvements upon said land, in the year 1867, by erecting a dwelling-house and other buildings thereon, at a great expense; and that at the time of this erection the said defendant was under the impression, that at the death of his mother, the said Sally, the title^in fee in said lands vested in him, he having previously purchased the interest of the defendant, Joseph |Whitehead, and the said Wiley Whitehead having died before his^interest in the lands vested in possession, and that he therefore had no interest therein.</p> <p>8. That the defendant, [Edwin Whitehead, executor of Wiley Whitehead, dec’d, heretofore filed a petition in this Court, (and the same is now pending and undetermined therein,) to sell the interest of his said testator in said lands, to make assets for the payment of debts, &c.</p> <p>9. That the plaintiffs and defendants are tenants in common of said land, and are desirous of partition of the same according to their respective interest therein.</p> <p>10. That the abovetnamed testator, Joseph Whitehead, by his said last will and testament, a copy of which, &c., provided as follows”: (Those parts of the will necessary to an understanding of the points raised are set out in the opinion of the Court.)</p> <p>“ Upon the foregoing facts, the following issues or questions of law, arose:</p> <p>(1.) The plaintiffs claim that the said testator, Joseph Whitehead, never intended in his said last will and testament to exclude any of the children of the second marriage from participation in, but intended to devise his real estate to his wife, Sally, for life, and then equally to all the children of the second marriage; that his daughters of said marriage, to-wit: Dorothy, wife of the plaintiff, Marcellus Pope; Sarah, wife of the plaintiff, Wm. P. Threewitts; Nancy, now deceased, and represented by the plaintiffs, B. T. Howell and Sarah E. Joyner, wife of Wm. T. Joyner, and Mary, wife of the plaintiff, Geo. W. Spivey, were inadvertently and by mistake omitted from said last will and testament, all of which a proper construction will show. The plaintiffs further contend, that said tract of land above referred to, should be divided into seven equal shares; to one of which, the plaintiff, Dorothy, wife of Marcellus Pope, is entitled - one to plaintiff, Mary, wife of Geo. W. Spivy; one to Sarah, wife of Wm. P. Threewitts; one to defendant, Edwin Whitehead, in his own right, and one to him as assignee of the defendant, Joseph Whitehead; one to the heirs of Wiley Whitehead, dec’d; and one jointly to the plaintiffs Benjamin T. Howell and Sarah F. Joyner, wife of W. T. Joyner.</p> <p>They further contend, that the share to which the heirs of Wiley Whitehead, dec’d, are entitled, should, on account of its smallness, the number of owners and the impracticability of actual partition thereof, be sold for partition, &c.</p> <p>(2.) The defendant, Edwin Whitehead, contends, that the devise of the real estate of the testator, Joseph Whitehead, was in express and positive terms to his sons, Joseph, Edwin, (both defendants in this action,) and Wiley Whitehead, now deceased, after the death of his wife Sally; that by the provisions and upon a proper construction of said will, all other persons were, and it was the intention of the testator to exclude all other persons from any participation in his real estate after the death of his wife, Sally; and that the ■■same was devised to his said sons, Joseph, Edwin and Wiley, .and to them only, subject to the said life estate therein. 'That said real estate should be divided into three shares, ifco-wit: to two of which, this defendant, (Edwin,) in his own ¿right and as assignee of the defendant, Joseph, is entitled; and the heirs of Wiley Whitehead to the remaining one. That in the division of the said premises, he should be allowed the value of the permanent improvements placed thereon, or that they should be embraced in the portion thereof allotted to him, and at no valuation. Further, that the share to which the heirs of Wiley Whitehead are entitled, should not be divided among them, either by actual partition, or by a sale for partition, during the pendency of the petition of said Wiley’s executor, to sell the same and make assets, cfec.”</p> <p>His Honor, upon consideration of the foregoing facts, admitted and found by the Judge of Probate, and the questions of law arising thereon, adjudged and decreed:</p> <p>“ 1. That the defendant, Edwin Whitehead, is entitled to an undivided two-thirds in and to the real property set out in the pleadings, and that the other one-third descends to the heirs at law of Wiley Whitehead.</p> <p>2. That actual partition be made of said premises, and that the Clerk appoint commissioners for that purpose, and to set apart as above, two-thirds of- said lands to said Edwin Whitehead, and one-third to the heirs at law of Wiley Whitehead.</p> <p>And it appearing further, that Edwin Whitehead has placed certain and sundry improvements upon said land, under a reasonable belief, that he was the owner in entirety of said premises, it is adjudged, that the said Edwin Whitehead be allowed his reasonable valuation of said improvements in the partition; and that this cause be certified to to the next term of any Superior Court to be held for the county of Halifax, to the end, that a jury may be empanelled to assess the value of said improvements in the manner and according to law, as in the statute in this case made and provided.</p> <p>3. It appearing further, that the executor of Wiley Whitehead opposes the sale of the one-third devolving upon the heirs-at-law of his testator, and that the personal property may prove insufficient to pay debts; it is decreed, by the Court, that as to partition, or sale for partition of said one-third among the heirs .of Wiley Whitehead, this cause is retained for further hearing,” &c.</p> <p>From which judgment, the plaintiffs appealed.</p>

Civil action, for the recovery of a tract of land, brought to the Superior Court of Haywood county, Spring Term, •1871, and removed on the affidavit of the defendant, to the Superior Qrart of Transylvania, where it was tried before Cloud, J., at Pall Term, 1871.

<p>Motion to discharge the prisoner from custody, on account of the withdrawal of a juror and a mistrial at the instance of the State.</p> <p>The indictment (for arson) was found at Fall Term, 1871, .of Mitchell Snperior Court, and thence removed on affidavit «of defendant to McDowell county, and from thence to Yancy county, where the defendants were put on trial at Fall Term, 1872, of the Superior Court, before Henry, J.</p> <p>The case made out by his Honor and sent here as a part of .the transcript, on the only point material to an understanding of the opinion of the Court, states, that one Wheeler had been appointed the officer to attend the jury, and was sitting in ■the same box with them; that on the evening of the second day of the trial, after the evidence for the prosecution had closed, and while the defendants’ witnesses were being examined, the counsel for the defendants, after asking permission to speak to Wheeler, the officer, called him as a witness .and examined him as a matter tending to discredit or contradict the prosecutor, a witness for the State. Upon Wheeler’s cross examination, he was asked as to whom he had spoken of the matter — the subject of the testimony. He replied, that while a former witness was giving in his evidence, that he, Wheeler, had remarked to one of the jurors in the box: “That is so, Childs, (the prosecutor) said 'the same thing to the prisoner in the jail at the last Court.” Wheeler further stated, that he had remarked the same thing in substance to another of the jury and to others. The jurors to whom Wheeler had addressed himself, being called at the instance of the defendants, stated that Wheeler had spoken to them about the matter, but that their minds were not influenced by what he said. One of them stated, that Wheeler had also said to him, that “ Childs (the prosecutor) is a mean man and a rascal,” when he was told to go* away and not to speak to him, the juror, about it.</p> <p>The Solicitor for the State, moved that a juror be withdrawn and a mistrial entered.</p> <p>His Honor allowed the motion, and a juror was withdrawn, whereupon it was moved that the prisoners be discharged from custody, which being refused, they appealed..</p>

Burglary, tried before Waits, J., at the January Term, 1873, of Wake Superior Court. The defendants were charged in the bill of indictment with breaking into the dwelling house of the prosecutor, and in another count with the larceny of a pair of shoes and other articles, alleged to have been taken from the house.

Indictment for murder, tried before Henry, J., at the Fall Term, 1871, of the Superior Court of Madison county. (The continuance of the case in this Court was owing to a diminution of the record, which was supplied by a certiorari.) The prisoner was charged in the bill of indictment, containing one count, with the murder of one Miza Wilson.

Civil action, in the nature of an ejectment, commenced at Spring Term, 1863, of Tyrrell Superior Court, and continued regularly until it was removed to the docket of the present Superior Court, at the Spring Term, 1872 of which it was tried by Watts, J. The question determining the case, and upon which its decision turned in the Superior and in this Court, was as to the validity of a certain deed, a necessary link in the defendants’ title, made by a former Clerk and Master…

Motion to set aside a judgment rendered in a civil action,, for the recovery of the possession of a tract of land, heard before Mitchell, X, at the Fall Term, 1872, of the Superior' Court of Caldwell county. At Spring Term, 1872, the plaintiff filed his complaint and the defendant his answer, the latter, as the case states, giving no bond for costs or damages.

Civil action, tried at Fall Term, 1872, of Iredell Superior Court, before Mitchell, J. The suit was brought on a guaranty given by defendants for the payment of certain notes, principal and interest, described in a list, underneath which the guaranty, in the following words, was written and signed by defendants : “We, the undersigned, have this day sold to Thomas James, administrator of Martha Potts, deceased, the notes listed above, and we bind ourselves for any or all of…

Civil action, for the recovery of certain personal property, claimed as a part of plaintiff’s homestead exemption, tried before Mitchell, X, at the Spring Term, 1872, of the Superior Court of Ashe county. Under the instructions of his Honor, on the trial in the .'Superior Court, the jury returned a verdict for the defendant. Motion for a new trial. Motion refused. Judgment •and appeal by plaintiff. The facts in the case are fully set out in the opinion of ■the Court.

Assumpsit, brought to Fall Term, 1867, of Rowan Superior Court of Law, by Foard, and thence removed into the .Superior Court organized under the Constitution, where it was tried before Cannon, J., at Fall Term, 1871, of said Court.

Civil action,'in the nature of the former action of Ejectment, tried before Cloud, J., at the Fall Term, 1872, of the Superior Court of Davidson county. There was a verdict for the plaintiff. Rule for a new trial; rule discharged. Judgment and appeal by the defendant. The case in this Court was disposed of by the decision of one of the points made in the Court below, the facts relating to which are fully set forth in the opinion of the Court.

<p>In an action of the nature of trespass quare clausum fregit, it is not necessary to describe the land entered upon, by metes and bounds.</p>

Civil action, instituted by plaintiff, Hix, in tbe county of Jackson, from whence it was moved to Haywood county, where it was tried before Cannon, J., at the Fall Term, 1872, of the Superior Court. The plaintiff, Hix, sued on a note given by the defendant and one Shanklin, as surety, for $640 and interest. In his complaint he admitted a payment of $400 by Shanklin, and $120 by Davis, the defendant, demanding in this suit payment for the balance.

Civil action, for damages on account of alleged waste, ¡and to restrain the defendant from clearing certain lands, heard by Watts, J., at Chambers, in Franklin county, on the 17th day of February,… Held: the defendant, Speed, occupies the same position during his lease as the tenant in dower, and is subject to the same liabilities and invested with the same rights.

Civil actiort for the recovery of certain land, and for damages, &c., tried before Cloud, J., at the January (Special) Term, 1873, of the Superior Court of Halifax county, upon the facts following and agreed to: ■ One William H. Poulton was seized of a freehold estate in the lands in controversy, and the defendant, W. W. Briekell, at public sale made by the sheriff by virtue of a certain execution, at the court house in Halifax, on the 27th January, 1868, purchased the…

Motion to vacate and set aside a judgment obtained in tbe cause at May Term, 1869, heard and determined by Cloud, J., at tbe January (Special) Term, 1873, of the Superior Court of Halifax county. The facts are stated in tbe opinion of tbe Court. His Honor allowed tbe motion and set aside tbe judgment. From this judgment, the plaintiffs appealed.

Indictment for Murder, tried before Mitchell, J., at the' Fall Term, 1872, of the Superior Court of Wilkes county.. The defendant, with one Baldy Gaither was indicted at. the Fall Term, 1872, of Iredell Superior Court, for the murder of one Margaret Seamon. They severed in their trials,, and on proper affidavits the cases of both were removed to. Wilkes county.

Civil action, tried at the January (Special) Term, 1873„ of Halifax Superior Court, before Cloud, J. The case stated for and sent to this Court, is : “The plaintiff claimed for services rendered by himi upon the testator Johnston’s Caledonia plantation in Halifax county, during the years 1862-’63-’64-’65, upon a special contract made with him in Chowan in 1861.

Civil action, determined by Cannon, J., at Chambers, in Macon county, July 10th, 1872. The plaintiffs sued the defendants, who were mail contractors, on an account for tolls due Jackson county, in a .Justice’s Court of Macon county. The account was for $82.30. The Justice gave a judgment in favor of defendants and against the plaintiffs for $6.60 costs, and the plaintiffs .appealed.

« Civil action, tried before Tourgee, J., at Fall Term, 1872, of Rockingham Superior Court. Tbe following facts are agreed. On the 30th day of July, 1855, the defendants executed their bond to the plaintiff for the sum of $950, which bond the plaintiff held until 1862.

Criminal action tried before Bussell, J., at the Fall Term, 1872, of Robeson Superior Court. The defendant was indicted for a common nuisance. The allegation in the bill of indictment charging the offense is set out in the opinion of this Court.

Civil action, tried before Tourgee, J., at the Pall Term, 1871, of Guilford Superior Court. The action is brought on the official bond of J. A. Mebane, former Clerk and Master of Guilford county, against bis administrator with the will annexed, and against the administrator, &e., of one of bis sureties.

Civil action, to recover possession of land, tried before Tourgee, J., at the Spring Term, 1872, of Guilford Superior Court. The plaintiff claimed the land in controversy, under a. sale made by the sheriff of Guilford, by virtue of certain executions, regularly issued on judgments rendered in the Superior Court of said county; at which sale the plaintiff became the purchaser, and to whom the sheriff executed his deed according to law.

<p>Debt, under our former practice, tried before Henry, J., .at the Fall Term, 1872, of Buncombe Superior Court.</p> <p>The plaintiff, at Spring Term, 1867, of the Superior Court -of Law for Buncombe county, sued the defendant on a note alleged to be due his intestate, at which term the defendant •plead payment and satisfaction. In support of his plea, he introduced one Whitmore, who testified, that lie went with the defendant to the house of Brigman, the plaintiff’s intestate, in the Spring of 1860, when both parties consented to go into a settlement. Witness went off to a neighbors to get some whiskey and when he returned, Brigman and defendant were in the porch surrounded by papers, and he heard the former remark, that he could not find the note, that it was for about $90; and at the same time he, Brigman, asked him, the witness, to take notice that it was settled, and that the defendant and his wife would come over to his house next Thursday night, and in the meantime he would hunt up the note and give it up. It was further in evidence on the part of the defendant, that Brigman, the plaintiff’s intestate, had borrowed money from defendant in the Fall of 1860, after the alleged settlement and gave his note for $150, saying at the time nothing about the $90 note. That plaintiff’s intestate, in a conversation with witness, a short time before his death remarked that he wanted the $150 paid defendant out of the first moneys raised from his estate, saying nothing at this time about the $90 note.</p> <p>The plaintiff himself was introduced, and was asked what he heard his intestate say about the note. Question objected to, and the Court did not permit the witness to answer it. The plaintiff testified that for a month before the death of his intestate, he was constantly with him, that his physician would allow no one to speak to him on business, and that he died in 1861. That he, the plaintiff, before he had taken out letters of adminstration, had had with the defendant a conversation, it being at the time understood however, that he would administer, in which the defendant said, he thought that his debt of $150 ought to be promptly paid out of the first moneys; that there were other matters between them, but that he could arrange them in some other way. That this time plaintiff knew nothing of the $90 note.</p> <p>Other evidence was introduced, irrelevant to the points decided, and need not be stated. The objections to the remarks of opposing counsel, and the ruling of his Honor on the trial below thereon, are stated at length in the opinion of the Court.</p> <p>The jury returned a verdict for the plaintiff for the amount of the note and interest. Motion fon a new trial; motion overruled. Judgment for amount of verdict and for costs. Appeal by the defendant.</p>

Civil action, tried before Buxton, J., at the Fall Term, 1872, of the Superior Court of Cumberland county. The action was brought to recover a judgment obtained by the plaintiff against the defendant’s intestate, in the.County of Cumberland, at June Term, 1856. The amount-of the judgment was $142.16, with interest on $136.43 from the said June Term, 1856, till the bringing this suit, amounting at that time to about $270.

'Indictment for wilful Trespass, tried before Mitchell, J., at the Fall Term, 1872, of Ashe Superior Court. The defendants were indicted, under the Statute of 1866, chap. 60, for a wilful trespass on the lands of one Mary Miller, after having been notified, and forbidden to do so.

<p>Appeal from an order granting a recordari and supersedeas, made by Clarice,,T, at the Fall Term, 1872, of Wayne •Superior Court.</p> <p>On the 3d of December, 1872, (the transcript, in several places, says 3d of November — but that is clearly a mistake,) the defendant applied to the Judge of the third Judicial District for a recordari and supersedeas, upon an affidavit in which he stated the following facts, to-wit</p> <p>About the 20th of November, one Robinson, a Justice of the Peace of Wayne county, informed him, that he, the Justice, had given a judgment against him, the defendant, in favor of the plaintiffs for about $96. The defendant then informed the Justice that he would appeal; and in order to stay execution pending his appeal, he filed with the deputy clerk of the Superior Court of Wayne, an undertaking according to law, which the deputy approved, and upon which he issued a supersedeas of execution. That afterwards, on the '3d of December, at Beaufort, in Carteret county, he learned that the judgment had not in fact been given until the 23d of November, which was after the day on which lie had given his undertaking to the clerk. (The undertaking is dated 16th November). The Judge thereupon ordered the Clerk of Wayne Superior Court to issue a recordari and supersedeas, upon the defendants giving a bond with sufficient surety in $126, with the usual conditions.</p> <p>It breaks in on the narrative of events, but it will be as well to state here as elsewhere, that there are affidavits sent up with the record, which must have been presented to the Judge at some stage of the proceedings, but it does not appear at what. In these it is stated that the undertaking to .stay execution, had not been accepted and approved by a deputy clerk, but by a clerk only of the clerk, who, however, did sometime act as deputy; that the clerk, as soon as he was informed of the act of his clerk, notified the Justice and the defendant, that he had not approved the undertaking, and revoked the supersedeas. It also appeared that the judgment in favor of the plaintiff, was not in fact given until the 23d of November, and that the defendant had not notified the plaintiff of his appeal.</p> <p>After the order of the Judge, to-wit: on the 5th of December, the defendant tendered to the clerk of the Superior Court, and undertaking proper in form, with a surety who swore that he owned a stock of goods worth about $5,000, and that he owed $2,100 or thereabouts. The clerk disapproved the surety, and assigns the reason, that his property was transferrable, and that he had reason to believe that it would be transfered, should the plaintiff recover.</p> <p>On the 7th of December the defendant presented his affidavit to the Judge, in which he stated the disapproval of the surety by the clerk, and that it was through malice and prejudice. He also notified the plaintiff that he had appealed from the ruling of the clerk. On the 9th of December, the Judge found as a fact, that the undertaking was: good and sufficient, and that the refusal of the clerk to approve it, was wanton, and ordered the clerk to- file the undertaking and issue the writs prayed for. From this order the plaintiff appealed to this Court.</p>

, at the Pall Term, 1872, of said Court. The facts in this case are identically the same as those in the foregoing case of Marsh v. Cohen, with the exceptions stated in the opinion of the Court, From the order of his Honor in the Court below, overruling his exceptions, the plaintiff appealed.

Motion to dissolve an Injunction, heard by Cloud, J., at Chambers, November 8th, 1872, in an action instituted in the Superior Court of Rowan county. The plaintiff, a citizen and tax payer of the town of Salisbury, applied for and obtained, on the 15th day of April, •1872, an order from his Honor, Judge Cloud, enjoining and restraining the defendants from selling the Town Hall, which it is alleged the defendants proposed to do.

Criminal action, tried before Buxton, J., at tlie Fall Term, 1872, of Richmond Superior Court. The defendant, with others, was indicted for stealing 800 pounds of.seed cotton, the property of Wm. M. Ballard and another. The defendant, Patterson, was arrested and taken before a Justice of the Peace for examination.

Criminal action, tried at the Fall Term, 1872, of Rowan Superior Court, before Cloud, J. ’ The indictment was for obstructing a public highway, and on the trial the jury found the following special verdict: “ That an application was made by sundry person^, more than six, to the Board of Township Trustees of Atwell’s Township, in Rowan county, praying for the establishment of a public highway, between the points indicated in their petition.

.Civil action, tried before Tow-gee, J., at Fall Term, 1872, •'of Alamance Superior Court.

Civil action, tried before Cloud, J., at Rowan Superior Court, Fall Term, 1872. The complaint was against the defendants as individuals, and alleged that at June Term 1860, of the Superior Court of Law for Iredell county, the defendants, as executors of one Solomon Hall, confessed a judgment in favor of the feme plaintiff, then Amanda Neely for $13,000, and offered in evidence the transcript of the record of said judgment.

Motion to vacate an order restraining defendants, &c., heard before Logan, J., at Fall Term, 1872, of Mecklenburg Superior Court. From the decision of his Honor, refusing to vacate the order restraining the defendants from- further proceedings in foreclosing a certain mortgage, the defendants appealed. The point decided being simply a matter of practice, the facts necessary to an understanding of the same are sufficiently stated in the opinion delivered by the Court.

<p>Civil action, brought to obtain the construction of a will, heard before Logan, J., at the Fall Term, 1872, of Cabarrus .'Superior Court.</p> <p>In 1864, Robert L. Young, the testator, was killed in one of the engagements of the late war, having first made and published the following as his last will and testament, to wit:</p> <p>“I, Robert S? Young, of the county of Cabarrus, and State of North Carolina, do make this my last will and testament,, revoking all wills or parts of wills heretofore made by me.</p> <p>“ To my beloved wife I give all my estate, real, personal and mixed, to be managed by her, (and that she may be enabled the better to control and manage our qhildren) to be disposed of by her to them in that manner she may think best for their good and her own happiness.</p> <p>Witness my hand,” &c.,</p> <p>Which will was duly admitted to probate, and the plaintiff, his widow, appointed administratrix with the will annexed.</p> <p>As alleged in the complaint, the testator died seized of a large estate, real and personal, the latter, or most of it, being lost by the results of the war, leaving the defendants* his children, all under age at his death. That she has kept, the children together, educating and maintaining them, and managed the estate to the best advantage.</p> <p>The two eldest of the children had attained their majority before this action was instituted.</p> <p>The plaintiff contends, that under a proper construction, of the will of her husband, his estate is vested in her absolutely.</p> <p>If not, and she is declared to be a trustee for the children* she prays directions as to the proper execution of that trust.</p> <p>The defendants, admitting the allegations of the answer* contend that it was the true intent and meaning of the testator, as expressed in his will, was to vest in the plaintiff the estate in trust for their benefit, with a limited power of disposal. Otherwise if the plaintiff is not a trustee, she; can have only a life estate, as there are no words of inheritance.</p> <p>His Honor, after argument in the Court below, adjudged:</p> <p>1. Under the will the plaintiff has a general power in trust, which is to be construed equitably and liberally, that the substantial intention of the testator may be carried out, the plaintiff having both the power and intent.</p> <p>2. Taking in consideration the value of the estate and the condition of the family of the testator in life, each child is to be raised and educated to his or her majority.</p> <p>3. As each child arrives to his or her majority, such a portion of the estate is “ to be disposed of by (her),” the plaintiff, to them, as a prudent parent would bestow upon a child starting in life.</p> <p>4. The plaintiff is to “ manage ” all -the property of the testator’s estate received by her under his will in a prudent and economical manner, to effectuate and carry out the substantial instructions of said will as above stated, reserving and retaining at all times a sufficiency for her own comfort and “ happiness.”</p> <p>5. The plaintiff has no right to convey any of the property as her own, but at her death the heirs of the testator will be entitled thereto.</p> <p>From this judgment both plaintiff and defendants appealed.</p>

Civil action, tried at Spring Term, 1872, of Pasquotank •Superior Court, before Albertson, J., upon the following case AGREED. At Spring Term, 1870, of Pasquotank Superior Court, the plaintiff obtained two judgments one on a bond given by ■Grandy Harris, as principal, and Davis Whitehurst as surety, and the other on a bond given by the same parties to Jemima Thornton, against Benjamin F. Whitehurst, Adm’r ©f the said Davis Whitehurst, one of the defendants in this suit.

Motion heard before Mitchell, J., at the Fall Term, 1872, of the Superior Court for Alleghany county. The defendants filed an affidavit charging that the plaintiff had sued in forma pauperis, and that she was a nonresident, living in the State of Tennessee. The facts stated were admitted by plaintiff. The defendant then moved to dismiss the action upon the ground that a non-resident cannot sue as a pauper in the Courts of this State. His Honor refused to allow the motion.

<p>Indictment for an assault and battery, tried at Wake Superior Court, Spring Term, 1872, before Moore, J.</p> <p>The battery was alleged to have been committed on a boy, the son of the woman, with whom the defendant was living as man and wife. The evidence on the trial is fully stated in the opinion of the Court.</p> <p>The jury under the charge of his Honor found the defendant guilty. Motion for a new trial; motion overruled. Judgment and appeal by defendant.</p>

, at Fall Term, 1872, of the”said court of Davie county. The proceedings were instituted upon the affidavit of the plaintiffs suggesting that the defendant, a judgment debtor, had property which could not be reached by an ordinary execution, and asking an order subjecting him to an examination in relation thereto.

Civil action, heard and decided by Watts, J., at the Pall Term, 1872, of the Superior Court of Halifax county. This proceeding was instituted by the plaintiff, for the purpose of obtaining a decree, declaring the proper application of a certain fund, received by him as Commissioner of the Court, for the benefit of certain infant heirs, under an order of the Court in a former suit, in the decision of which the fund originated.

<p>'The maker of a note payable on demand, may at any time before the demand, make a tender, which will have the same effect, as if the note was payable on a certain day, and the tender was made on that day.</p> <p>Confederate treasury notes were issued by that government with the intent that they should circulate as money, and practically, both by banks and individuals, they were deemed and treated in all ordinary business as money.</p> <p>'The Courts of this State have habitually treated notes payable in Confederate money, as having all the attributes of promissory notes, and a tender of the like money in payment of such, which the payee refused to receive, will not bar the debt. «</p>

Civil action tried before Cannon, J., at Spring Term, 1872, of the Superior Court of Henderson county. The plaintiff brought suit on a note given by the testator of the defendant to one Frances Bane for $100, in a Justice’s Court, from whence it was carried by the appeal of the defendant, to the Superior Court. It appeared on the trial, that the plaintiff purchased the note of one J. D. Bane, a son of Frances Bane.

Motion to set aside a verdict and judgment, the latter' obtained at the Fall Term,' 1870, heard by Tour gee, J., at Fall Term, 1872, of Guilford Superior Court. The original action was case, commenced on the' 11th. day of August, 1863, and returnable to Fall Term, 1863, of the Superior Court af Law of Guilford. No declaration orincipiter was filed until August Special Term, 1870.

<p>Motion heard and determined by Henry, J., at chambers,, in Buncombe county, on the 15th November, 1872.</p> <p>A summons had issued against the defendants, as officers of the Western Division of the Western N. C. Railroad, (Judge Henry being one of them,) returnable to Spring Term, 1873, of Buncombe Superior Court. This summons was served, “ by delivering copies to the defendants, 27th September, 1872.” The complaint had also been filed, and the plaintiff had served a notice on the defendants to appear before his Honor at chambers, and show cause why the case should not be removed to some county in an adjoining Judicial District, in accordance with the provisions of chap. 20, Acts of 1870-71, for the reason that the presiding Judge was a party defendant. There was a prayer in the complaint, for an injunction, which the plaintiff desired heard in vacation.</p> <p>It was agreed, upon the hearing of the motion, that the-presiding Judge, though nominally one of the Board of Com-missioners, appointed under an act of the General Assembly in 1869-70, yet had not officiated in any of the material transactions of the Board; and the plaintiff offered that-there might be a nol. pros, as to him, which was accordingly entered.</p> <p>The defendants contended that the case could not yet be-removed, because no answer had been filed, and the case had not been put at issue, nor had there been due return made of it, at the regular term to which the summons was-made returnable.</p> <p>His Honor ordered t]je cause to. be removed, and the de- • fendants appealed.'</p>

. Indictment, charging the defendant with the murder of ■one Nimrod S. Jarrett, tried before Henry, J., at .a Court of Oyer and Terminer, under special commission, third Monday of December, 1872, in Jackson county, to which county it had been regularly removed from the county of Macon.

Civil action, tried before Logan, J., at Fall Term, 1872, of the Superior Court for Mecklenburg county. The plaintiff, as executor, sold certain lots in the town of Charlotte, at which sale the defendant, Smith, was a purchaser and gave the note sued on for the amount of the purchase money.

'This is the same action as that immediately preceding, brought to this Court upon the appeal of defendants. The facts are therein stated. On the trial the plaintiff excepted to the admission of the plot and deed made to another party, who was also a purchaser of a part of the land sold. This was admitted by the Court, and the plaintiff excepted. For this alleged error in the admission of evidence the plaintiff appealed.

Civil action, tried before Moore, J., at the August (Special) Term, 1872, of Granville Superior Court. The plaintiff, at Spring Term, 1867, of the Superior Court of Law of Granville county, sued the defendants in debt upon their bond for $1,396.86, of date 1st January, 1858, and payable to plaintiff or bearer.

<p>Civil action tried before Mitchell, J, at Pall Term, 1872). of the Superior Court of Iredell county.</p> <p>In the complaint, the plaintiffs demand an account of the fund in the hands of the defendant, and the payment of the balance when ascertained, “ to the children of the said Priscilla,” the petitioner.</p> <p>The fund arises under the will of Wm. Welch, a brother' of the plaintiff, Priscilla, who died in the State of South Carolina. In his will, the testator directs his property 0f every description except negroes, to be converted into cash,, and then divided into nine shares, each one of which is-given to his several brothers and sisters, among the latter of whom he mentions Priscilla Walker. The testator further directs that the share to which each of his sisters shall be entitled, shall be settled for her sole and separate use during her life, and at her death to her children, and to the children of any predeceased child, such child or children to-take the share of their deceased parent. In a codicil to his: will, the testator appoints Wm. Welch, who is also executorj trustee for his sisters, and empowers him to sell any of the said property, if it should become to be the interest of the sisters and their children to do so, and reinvest the proceeds of such sale in such other real and personal property as he may think most to their advantage, taking titles to himself, as such trustee, upon the terms, conditions and limitations mentioned in his will, as to each of his said sisters.</p> <p>The plaintiff, Priscilla’s husband, died in 1857, and before, the commencement of the present action, the trustee had not ■been changed until the present defendant was appointed by a Court of Equity. At Spring Term, 1871, it was referred to the clerk to state an account of the fund in the hands of the defendant as trustee. Upon the coming in of the report ■•of clerk, the plaintiffs filed exceptions, which were disposed ■of by his Honor, to-wit:</p> <p>1. That the clerk allowed the defendant credit for all his payments, regardless of interest. It is considered by the Court below, that the testator in providing for his sister by ..giving her the sole and absolute use of the property devised and willed to her during life, intended it as a provision for • her family, and involved the expenses of such a provision. ' The exception is overruled.</p> <p>2. Clerk has not stated an interest account from year to .. year, or how much interest, year by year, was due and how much paid out. By the Court below. Distinct vouchers were produced for each and every payment.</p> <p>3. That defendant is allowed credit for payments to plaintiff Priscilla, exceeding yearly income. Overruled. Reason in answer to first exception.</p> <p>4. That the clerk allowed credit for $600 paid for negro Vice, and allowed credit for interest $329. By the Court. At the urgent application of the plaintiff, Priscilla, her son ■ of full age, and her son-in-law, and against the protestation • of the defendant, as trustee, he made the purchase that was not opposed by any person. He charges interest, as he advanced the money for the benefit of the trust fund.</p> <p>5. As to the price of Vice, there is no evidence or pretence that it was excessive. Confederate money at the time, 1863, was the common currency.</p> <p>Prom this decision of his Honor, overruling their exceptions, and confirming the report of the clerk, the plaintiffs -appealed.</p>

Motion to reinstate a judgment and execution, heard before Watts, X, at the Fall Term, 1872, of Johnston Superior Court. The action was debt on a bond, brought to Spring Term, 1867, of the Superior Court of Law for Johnston county, under our former practice, at which term the entry is made of the pleas of “payment and set off.” .

Civil action, tried at the Fall Term, 1872, of Rowan Superior Court, before Cloud, J. The following is, in substance, a statement of the case by ■counsel, and sent up with the transcript of the record. The action was brought to recover the value of board supplied to defendant and his clerk, from 12th January, 1859, to 18th March, 1860.

Indictment for larceny, and receiving stolen goods, tried before Cloud, J., at the Fall Term, 1872, of Davidson Superior Court. From the case accompanying the record it appears, that the defendant was charged with stealing a mare, the property of one Davidson Link, and in another Court with receiving the mare knowing her to be stolen.

Indictment for assault and battery before Buxton, J.t at Anson Superior Court, Pall Term, 1872. The defendants were found guilty.

<p>The taking and reporting an account by the Master, or Clerk, to whom the * Court has referred it, involves the exercise of the judgment and discretion of such referee, which he cannot delegate to another. And it is no proper • exercise of his judgment and discretion when he simply adopts an account which has been stated by another, whether the account so adopted has been taken in the same suit, or in some other.</p>

Civil action, tried before Olarhe, J., at Pall Term, 1872, of the Superior Court for Jones county. The suit was brought on a note made by the defendant and one Pritchett, for $700, payable to one Thomas Wilcox, on the — day of — 1861, the note not being indorsed. The plaintiff by his own evidence proved that his intestate in her lifetime bought the note from Wilcox, the payee, giving full value for it, in the notes of Wilcox and a balance in money.

Civil action, founded on a former judgment rendered in the late County Court, tried before Watts, J., at January (Special) Term 1873, of Wake Superior Court. The plaintiff alleged his judgment, and that no part of it had been paid. The defendants admitted the judgment, but denied the allegation of non-payment — and said that execution was duly issued upon said judgment, tested of November Term, 1862, of Wake County Court, and returnable twelve months thereafter.

This was a civil action tried before Moore, J., at Fall Term, 1872, at Tyrrell Superior Court. The action was commenced before a Justice of the Peace, and brought up by appeal to the Superior Court. The facts of the case are fully stated in the opinion of the Court. His Honor charged the jury that the facts did not constitute a tender, and were no protection to the defendant. Verdict for plaintiff, &c. And the defendant appealed.

<p>The Judge who tries a cause has no right-to intimate in any manner his opiniom as to the weight of the evidence, nor to express an opinion on the facts.</p> <p>Where there is any evidence to the contrary, it is erroneous in the Judge to say,, “ We are not informed ” of a fact upon which it is for the jury to pass.</p> <p>Proper time to aslc for particular instructions is at or before the close of the-evidence and before the Judge has given such instructions to the jury as he-may think the case requires.</p>

<p>The opinion of the Court contains a full statement of the facts of the case.</p>

This was a motion for an injunction and the appointment of a receiver, [heard before Logan, J., at Fall Term, 1872, of Mecklenburg Superior Court, and the case was before this Court at January Term, 1872. At that Term this Court ordered its opinion to be certified to the Superior Court of Mecklenburg county, and at that Term of said Court the defendant filed a plea since the- last continuance.

<p>Mandamus, tried before Cloud, J., at Chambers, 21st November, 1872.</p> <p>Tbe proceeding was by summons and complaint, and was to obtain a writ of mandamus, to compel John Blackburn, tbe defendant, as clerk of the Superior Court of Forsythe county, to deliver to tbe plaintiff tbe records of tbe late County Court of Forsythe county, concerning tbe subscription of said county to tbe capital stock of the North Western North Carolina Railroad Company.</p> <p>An ordinance of the Convention of tbe State, passed 9th of March 1868, authorized tbe question to be submitted to tbe people of said county, whether they would subscribe one thousand shares to the stock of said company, and in pursuance of said ordnance, the Justices of Forsythe met at tbe Court House in Winston, on the 24th of March, 1868, and as the record states, a majority were present'and made the order submitting the question of “ subscription,” or “ no subscription.”</p> <p>An election was accordingly held, and the sheriff of the county reported that a majority of the votes cast were in favor of subscription, and the Justices of the County Court, a majority being present at the regular June Term, 1868> received the report and appointed an agent to subscribe for one thousand shares of stock in said company. The agent made the subscription and bonds, were caused to be issued by said Justices, to pay said subscription and were sold. Afterwards taxes were levied and collected to pay the interest on said bonds. The defendant refused to obey an order of plaintiff to give up the records, and plaintiff asks for this writ to compel the defendant to surrender said records, so that they may he altered by the clerk of the plaintiff, so as to state that a majority of the Justices of Forsythe were not present at the said meeting of said Justices on the 24th of March, 1868, and at the said June Term, 1868, and that certain Justices were not present, who are stated in the record to have been present.</p> <p>The defendant admits the subscription and issue of bonds, and avers that a majority of the Justices were present, and that the Justices alleged to have been absent were not absent, and that.the action of the Justices was in all respects in accordance with law; that he refused to obey the order of the plaintiff, because he was advised and believed that he could not lawfully surrender the records, and that plaintiff had no authority to amend the records as proposed by plaintiff. The holder of the bonds had no notice of this proceeding.</p> <p>His Honor refused to grant the prayer of the plaintiff, and gave judgment for defendant.</p> <p>Plaintiff appealed.</p>

Civil action, tried before Henry, J.., at special January 'Term, 1872, of Mecklenburg Superior Court. The bond sued on was as follows: $300. On the first day of January, 1860, we, or either of us, promise to pay W. F. Davidson, the sum of three hundred dollars for rent of his dwelling house and lot for the year 1859. (Signed) J. A. SADLER, J. ALLISON.

Civil action, tried before Clarice, J., at Spring Term, 1872, of Lenoir Court. The complaint alleged that the defendant had converted plaintiff’s horse and buggjr, and this action was to recover their value. Defendant denied the conversion, and further answered that the plaintiff had compromised and settled the matter for a valuable consideration.

Motion to set aside orders, decrees and proceedings in the ease of Jane E. Martin at al. to the Court, made before Waits, J., at Spring Term, 1872, of Hyde Superior Court. Jane E. Martin at al. to the Court, was a petition to sell land devised to be sold by the will of Marvel Wilkinson, in order to carry out the directions of the will. The sale Avas made and confirmed by the Court.

Statement of facts, which might be the subject of a civil action, submitted to Watts, J., at Chambers, in the county o f Wake, 22d February, 1873, and by him determined. “ The plaintiff and defendant agree to the following statement of facts, which might be the subject of a civil action, and submit the same to the Court. 1.

Civil action, of the nature of a quo loarranto, for the recovery of the office of the “ Board of Trustees of the N CL Institution of the Deaf and Dumb and the Blind,” determined at Fall Term, 1872,… Held: exercised and claimed the offices demanded by the plaintiffs, by and under an act entitled “An act to alter chapter six of the Revised Code, concerning the North Carolina Institution for the Deaf and Dumb and the ' Blind,” ratified the 21st day of January, 1871.

Indictment for larceny, tried before Buxton, J., at Fall Term, 1872, of the Superior Court of Richmond county. It was charged in the indictment that the property stolen were “ the goods and chattels of one S. L. Williams.” The jury returned a verdict of guilty. The defendants moved for a new trial, for the reason, “ that the plea of ‘not guilty,’ was not put in and entered of record.

Murder, tried before Clarice, X, at CrAven Superior Court, Fall Term, 1872. Upon the trial, one Brown, a Justice of the Peace, testified that Hardy Jones, the prisoner, was arrested for larceny and brought before him as a Justice of the Peace; that he examined the case and ordered him to give bond, &c. The prisoner ran off and escaped. In the absence of a regular-constable, Brown deputized one John M. Thorpe to arrest Hardy Jones.

Motion to dismiss a warrant of attachment, heard 'before Waits, X, at Spring Term 1872, Edgecombe Court. • This case was before this Court at June Term, 1871, and and this Court decided as follows: “ order discharging the attachment modified by refusing the motion, but allowing the defendant to take the property, provided an undertaking be filed as required by C. C. P., sec. 213.” When the case was again before the Superior Court of Edgecombe, motion to dismiss was again…

Civil Action, tried before Mitchell, J., at Eall Term, 1872, of Ashe Court. Plaintiff claimed two tracts of land, alleging that he was the owner of the same in fee. Defendant denied all the allegations of the complaint. On the trial plaintiff introduced a deed from one Cox to John Potter and a deed from Potter to Samuel McQueen -and a deed from McQueen to the plaintiff.

This was a controversy without action submitted to his Honor Judge Watts, Judge, of the 6th Judicial District, at Fall Term, 1872, of Wake Superior Court, under the 315th section of the C. C. P. The following is a statement ‘of the controversy and the decision of the Judge upon it : Certain resident citizens of the city of Raleigh, who are tax-payers, being advised that they are not subject to be taxed on account of debts and securities for money held by them, and lately…

<p>The Trustees of the University, the Directors of the Penitentiary, of the Lunatic Asylum and of the Institution for the Deaf and Dumb and the Blind, are public officers.</p> <p>The act of the General Assembly, entitled, “ An Act for the better government of the Penitentiary,” ratified the 1st day of April, 1871, violates section 10 of article 8 of the Constitution, and is therefore void.</p> <p>By virtue of article 3, section 10 of the Constitution, the Governor shall nominate, and by and with the advice and consent of a majority of the Senators elect, appoint the Directors of the Penitentiary, and such other officers as are therein prescribed.</p>

Petition of his Honor, James L. Henry, Judge of the 11th Judicial District, to the Supreme Court, preferring his claim against the State for compensation for holding terms of a Court of Oyer and… Held: which were held and at which the prisoners were tried. For the State it was submitted by the Attorney General, that Judge Henry should be paid by the counties in which the Courts were held, and not by the Public Treasurer.

Case agreed, without action, to recover the office of Superintendent of Public Instruction, submitted at the January Term, 1873, of the Superior Court of Wake county, before his Honor, Judge Watts, and by him determined. The relator, Kemp P. Battle, seeks to recover of thq defendant, Alexander McIver, the office of Superintendent of Public Instruction, in and for the State of North Carolina, and the same is resisted by defendant.

(For a digest of this case, see the syllabus in the case of the People &c., ex rel. John Nichols and others v. W H. McKee and others, ante 429, and also in the case of the People, &c., ex rel. G. W. Welker and others v. M. A. Bledsoe and others, ante.) The defendants were Directors of the Lunatic Asylum, appointed under the Act of 1871, and had served as a Board up to the institution of the present proceedings.

Civil action, of the nature of a mandamus, submitted to Walls, J., and by him determined at January Term, 1873, of the Superior Court of Wake county.

Motion to amend the record of a suit between the parties: still pending in this Court, heard and determined by Watts,. J., at Chambers, 15th June, 1872. The suit commenced in the Court of Equity of Granvillecounty by original bill, and under the provisions of the Code of Civil Procedure, was removed into the Superior-■Court of said county.

Civil action, tried before Mitchell, J., at Spring Term, 1872, of Alexander Court. Plaintiff complained against the defendants for the conversion of a note, of which he was the owner, worth $153 in .gold value, and due to him by one Ward, of East Tennessee. The defendants came to the plaintiff’s house in Alexander county, on their way to East Tennessee, in pursuit of a horse which had been stolen from defendant Miller.

Injunction, heard upon motion before Tourgee, J., at Chambers during Caswell Court, Spring Term, 1871. The defendant, Hunt, made affidavit that on the 19th of March, 1869, he had his homestead laid off and personal property exemption allotted to him by three freeholders, according to the act 22d August, 1868.

Petition before the Clerk of the Superior Court of Rock•ingham county, by the plaintiff as administrator of Thomas E. M. Coyle, for a license to sell the land described in the petition, situate in said county, and to make the proceeds assets to pay the debts of his intestate.

. This was a special proceeding brought before the Judge of Probate of Halifax county, by the plaintiff as the administrator de bonis non of J. H. Harrison deceased, against the defendant as administrator of B. D. Mann, who was the original administrator of the said Harrison for an account and settlement of his estate.

This was a civil action tried before his Honor, Cloudy J., at the Fall Term, 1872, of the Superior Court of Forsythe. The plaintiff claimed the sum of $644, with interest, for the board, tuition, &e., of three daughters of the defendant, she being also their regularly appointed guardian. The account was commenced the 31st day of December, 1.864-,. and ended the 12th day of June, 1865.

This was an action brought to recover real property, and “tried before his Honor, Buxton, J., at the Spring Term, 1872, •of Moore Superior Court.

This was a civil action, in which the plaintiff, a minor, sue I by his guardian as a pauper, and which was heard before his Honor, Cannon, J., upon a motion to dismiss, at the Fall Term, 1872, of Haywood Superior Court. The facts of the case are sufficiently stated in'the opinion of this Court.

Civil action, brought to the Superior Court of Buncombe, and heard upon a motion for judgment at the Fall Term, 1872. The facts necessary for understanding the case are fully stated in the opinion of this Court.

Civil action, to obtain an order for mandamus, tried before Moore, J., at Spring Term, 1872, of Wake Superior Court.

Civil action to obtain an order for a Mandamus, returned before Chief Justice Pearson, at Chambers, in the city of Raleigh, on the 1st day of February, 1878.

This was a Bill in Equity filed in the Court of Equity of Nash county under the former system by the plaintiffs, who are the devisees and legatees of their father, Elijah B. Hilliard against the defendants, who are administrators, with the will annexed, of their said father, for the purpose of getting a construction of his will, and then for an account and settlement of his estate.

This was a civil action, brought in the Superior Court of' Rowan upon the bond given by the defendant upon becoming the guardian of the feme plaintiff. The object of the. suit was to set aside a paper writing which purported to be a receipt in full and a release given by the feme before her1 marriage and a few days after she had arrived at full age, upon the ground that it had been obtained from her in the., absence of her friends by fraud and circumvention.

This case is the same with the foregoing, that having been stated on the appeal of the defendant, while this is an appeal [of the plaintiffs. The following are the exceptions which were filed by the plaintiff’s counsel: 1. That the referees have allowed the defendant in his disbursements an amount greatly in excess of the annual interest of the feme plaintiff’s estate. 2. That they have allowed the defendant excessive commissions. 3.

<p>When an account and the report of a referee thereon is directed to be modified and corrected in this Court, and it is referred to the Clerk of this Court to make the necessary corrections, no evidence is admissible before him to show that the account which had been passed upon by this Court was erroneous. In such a case, the duties are only clerical, and the Clerk is right in confining himself to them.</p> <p>Upon a petition to rehear a judgment rendered in this Court at a former term the Court will not reverse or vary the former judgment unless it plainly appears that injustice was thereby done to the petitioner.</p>

Civil action, for the recovery of the office of the Keeper of the Capitol, tried at the Fall Term, 1872, of Wake Superior Court, befQre-his Honor, Watts, J. On the 27th March, 1872, the relator was appointed Keeper of the Capitol by the Governor, and demanded the office of the defendant who was performing the duties thereof under an appointment of the General Assembly.

<p>Civil action, tried before Watts, J., at the January Term, 1873, of Wake Superior Court.</p> <p>The suit is brought by plaintiff against the defendants, wlio are the legal representatives of Jere. Nixon, deceased, and for the adjustment of an account and for a settlement of the same, and also for the performance of sundry covenants contained in articles of agreement entered into between-the original parties, some of which were as far back as 1853. The suit was referred,'and upon the coming in of the report of the referee, both parties excepted to it. His Honor confirmed the report as to the facts reported and as to the conclusions of law found, from which judgment the plaintiff appealed.</p> <p>The two material exceptions to the report made by the plaintiff, and the only two receiving the attention of the Court, is sufficiently set out in the opinion delivered in the cause.</p>

This was a civil action, brought by the plaintiff in the Superior Court of Wake county, to subject the interest which the defendant had in certain land situate in the said county to the payment and satisfaction of a judgment which he had obtained against him and had docketed in said Court.

<p>When a guardian uses the funds of his wards in the purchase of a tract of land, they can foliow the land to enforce the payment oí the amount due them, and nothing can divest their right to do so except the exercise of their own free wills after coming of age, or the decree of s<me Court of competent Jurisdiction.</p>

Civil action, tried before Henry, J., at Fall Term, 1872, of the Superior Court of Buncombe. The complaint contained two causes of action : First, that the defendants, who were commission merchants in New York, had sold 132 bags of dried fruit for the plaintiffs and received the money and refused to pay it. Second, That the defendants,did not use due diligence in-selling a former lot of 134 bags of dried fruit, and unlawfully applied the proceeds of sale of the 132 bags.

Civil action, brought by plaintiff, daughter and one of the heirs of Humphrey S. Camp, deceased, to obtain a construction of a clause in her father’s will and for payment of a legacy, tried by Watts, J., at the Special (December) Term, 1871, of the Superior Court of Halifax county.

<p>Testator devised a certain tract of land, describing it, to liis son D and his heirs forever, annexing this condition: “ Now in case the said I) and the balance of my heirs can not agree in the price of the above described or bounded lands, the parties can choose a mutual board of valuation, and if the said D is not willing to abide by the valuation thus obtained, then in that case I will that the above bounded lands be sold and the proceeds equally divided among all my heirs, excepting, <£c.: Held, That D should have the land, but that lie Humid pay. to the other heirs their proper shares of its reasonable value: Hold, further, That should D decline to take the land the same will be sold and the proceeds divided as prescribed in the will.</p> <p>Whore a testator directs his property, land or personal property, to be equally divided among his heirs, the division must bo per capita and not per stirpes.</p> <p>A testator makes the following bequest: “Item 8. I will and bequeath that after my death all my remaining estate and effects, consisting of notes, accounts, household and kitchen furniture and farming utensils, &c., be sold and the proceeds thereof be equally divided among all my heirs:” Held, That the testator did not intend that his notes and accounts should be sold; they will becollected: Held further, That the proceeds of the sale will be divided into ten parts — one to each of his six children, and one to each of . the four grand children.</p>

Civil action to recover the offices of directors on the part of the State in the Western North Carolina Railroad Company, (Eastern Division,) commenced in Rowan Superior Court, and at Fall Term, 1872, a trial by jury having been waived by consent of both parties, the case was by agreement let for trial before his Honor, John M. Cloud, Judge of 8th Judicial District, on the — day of January, 1873, in the City of Raleigh.

This was an action op debt on a guardian bond, tried before Waits, J., at Fall Term, 1871, of - Warren Superior Court. The case was argued at the last June Term of this Court, and the judgment of the Court was deferred, in order that the exceptions to the report might be fully argued. The facts are stated in the report and opinion of the Court. Vol. G7 N. C. Rep., 475, et seq. which vide.

<p>The jurisdiction of a Bankrupt Court being conceded, its adjudication of bankruptcy is a judgment in rem fixing the status oi the bankrupt,-which' upon that point is binding upon all the world, andean only be impeached'for fraud in obtaining it. .</p> <p>Prior to the Bankrupt law, it was held in North Carolina that an insolvent had a right to prefer one or several among his creditors, although the effect was to hinder and delay others. This right of preference is taken away by that Act, and the State Courts are bound to hold that fraudulent and void, which, the Act declares to be so under the conditions which it prescribes. Every Court however, in which a controversy as to the title to the property alleged to have been fraudlently conveyed, may arise, has jurisdiction to inquire-whether the conveyance was in fact and in law fraudulent, i. e. whether the conditions prescribed by the Act to make it fraudulent, existed.</p> <p>A charge of the Judge in the Superior Court, which is in part erroneous, but which calls the attention of the jury, as fairly as could be expected under ' the circumstances to the material questions on which they were to pass,is no ground for a new trial.</p>