Volume 69 — North Carolina Reports

This was a civil action against the defendant as administrator of Henry D. Turner, and at the last term of the Superior Court of the county of Craven, before Clarke, J., a judgment was rendered against him, from which he appealed. The facts of the case are stated in the opinion of the Court.

This was a civil action for one-fifth part of a tract of land tried at the last term of the Superior Court of the county of Mecklenburg, before his Honor Logan, J. The plaintiff had a verdict and judgment, and the defendant appealed. The case is sufficiently stated in the opinion.

This was a motion to set aside an execution heard before his Honor Henry, J., at the Fall Term, 1872, of the Superior Court of Buncombe county. At the Special Term, 1869, of Buncombe Superior Court, judgment was taken by consent for want of an answer by the plaintiff against the defendant for the sum of $632.40, the amount of the principal and interest due to that date upon the promissory note sued upon.

This was a civil action, brought to the Superior Court of the county of Guilford, in which the defendant demurred to the complaint of the plaintiff. His Honor, Tourgee, J, at the last Spring Term of the Court sustained the demurer, and ordered that the plaintiffs amend their complaint upon the terms of paying all the costs, or that the suit be dismissed. Prom this order the plaintiffs prayed and obtained an appeal to the Supreme Court.

The plaintiffs upon a proper application therefor, obtained from his Honor, lourgee, J., an order allowing them to sue in forma pauperis in the Superior Court of the county of Guilford. The suit was brought and at the last term of the Court a judgment was given against them, whereupon his Honor made an order allowing them to appeal to the Supreme Court informa pauperis without giving security for the costs of the appeal.

This was a civil action tried at the Spring Term, 1873, of Robeson Superior Court before his Honor, Buxton, J., when there was a verdict and judgment, with which the plaintiff was dissatisfied, and prayed and obtained an appeal. The facts of the case are sufficiently stated in the opinion of the Court.

This was a petition for the partition of land, heard before his Honor, Buxton, J., at the Spring Term, 1873, of the Superior Court of Cumberland county, and upon the hearing his Honor made an order from which the defendant appealed. Enough of the case is stated in the opinion of the Court for understanding the points decided.

This is a petition to rehear the case of an indictment for murder which was before the Supreme Court at the last term upon an appeal, when an opinion was given that there was no error, and it was ordered that the opinion should be certified to the Superior Court of the county of Craven from which the appeal was taken. After an argument by the Attorney General for the State and Haughton for the prisoner, the following opinion of the Court was given :

This was a civil action, in which the plaintiffs sought by an injunction to restrain the defendant from proceeding to act under the Act of 1872-73, chap. 143, entitled, “ an Act to change the dividing line between the counties of Franklin and Granville,” and thereby to take away a portion of the territory of Granville county, and to add to the county of Franklin.

This was a motion made before his Honor, Albertson, J., at the Spring Term, 1873, of Granville Superior Court, to dissolve an injunction which had been theretofore granted by Judge Watts, upon the complaint of the plaintiff Moore in behalf of himself and the other creditors of the county of Granville against the defendant to prevent the defendant Ballard, from proceeding to act under the Act of 1872-73, chap. 143, entitled, “ an Act to change the dividing line between the…

This was an indictment under the Act of 1868-69, chap. 253, (Battle’s Revisal, chap. 32, sec. 95,) in the following words, “That Henderson Allen, on &c., at &c., g, certain mule of the value of one hundred dollars, the property of one John S. Ellis, the said mule being then and there within an inclosure not surrounded by a lawful fence, unlawfully and wilfully did abuse, injure and kill contrary,” &c. Upon the trial at the Fall Term, 1872, of the Superior Court of Granville…

This was a petition filed by the plaintiff as executor of his father, John Green, who died in the year 1863, in the Court of the Clerk of the Superior Court for the county of Chatham, for the purpose of obtaining an order to sell land to pay the debts of his testator. The defendant Winslow, who had purchased a tract of land belonging to the testator of one of his heirs, upon his application was made a party and objected to .the sale.

This was an indictment against the defendant for receiving some stolen cotton, knowing it to have been stolen. At the trial before his Honor, Clarice, J, at the last Superior Court for Wayne county, the jury found the following facts as a special verdict: One John Newsom stole the cotton at night from one Coor’s barn and started with it to one Roberts, a merchant, to sell it, and came to the house of Rushing, who lived on a public road between Goor’s and Roberts’.

This was a civil action, tried at the last term of the Superior Court for Jones county, before his Honor, Clarke, J., where the plaintiff had judgment, from which the defendant appealed. The case is sufficiently stated in the opinion of the Court.

This was a civil action on the trial of which, at the last term of the Superior Court of Rutherford, before his Honor, Logan, J., the defendant offered the deposition of Susan Stovall, to. the reading of which, the plaintiff objected on account of irrugularities in the taking of it.

This was a civil action commenced the 4th of October, 1869, to foreclose a mortgage given by the defendant, benring date in the year 1854, to secure the payment of notes of the defendant, due at the date of the mortgage, tried before Watts, J., at the January (Special) Term, 1873, of Craven Superior Court.

The defendants were indicted for a forcible trespass, in seizing and taking from the actual possession of one Lucian H. Gilmore, he being present and forbidding the same, two-mules, the property of the said Gilmore.

<p>This was a civil action in which the summons was served by one who had been appointed by the Clerk of the Superior Court a coroner to execute it, there being at the time no coroner in the county, and the defendant being the sheriff of the county. At the last term of the Superior Court of Iredell, before his Honor, Mitchell, J., a motion to dismiss was made for want of a proper service, which was granted, and the plaintiffs appealed.</p>

This was an indictment for larceny in stealing a horse. The caption of the indictment was as follows: “ North Carolina, Cumberland county, Superior Court, Spring Term, 1873.” It charged in the usual form that the defendant, late of the county of Cumberland, on the 1st day of February, 1873, in the count aforesaid, committed the act of stealing.

<p>An answer which avers that “ no allegation of the complaint is true, ” is not a compliance with the C. C. P., sec. 100, which requires that the answer must contain “ a general or specific denial of each material allegation; ” that is, it must deny either the whole of each material allegation, or some material or specific part thereof. Such an answer is a sham plea, and ought to be stricken out on motion as provided in C. C. P., sec. 104.</p> <p>A plea that the Court had no jurisdiction of the action is a sham plea. The objection to the jurisdiction must be taken by demurrer, C. C. P., sec. 95, sub sec. 1.</p> <p>In a suit upon an administration bond, the next of kin of the intestate are not necessary parties, C. P., sec. 57, and in such a suit, the administrator of the principal in the bond need not be joined.</p> <p>A plea alleging the want of parties is a sham plea, as the objection ought to be taken by demurrer, C. C. P., sec. 95, sub sec. 4.</p> <p>A plea in an answer to a complaint on an administration bond of “ performance of the condition of the bond by payment to the next of kin,” is good in substance, and an issue may be taken upon it; and such issue is the subject of a compulsory reference under the C. C. P., sec. 245, sub sec. 1.</p> <p>A reference of issues upon sham pleas is erroneous, but if the reference embrace an issue on a good plea which may be referred, it will be sustained as to that while it is reversed as to the others.</p>

This was a civil action tried before his Honor, Watts, J., at the special January Term, 1873, of Craven Superior Court. The plaintiff declared on a sealed promissory note or bond given by five obligors, of whom the defendant was one, and it appeared on the face of the bond that he was a surety and he was the only person sued.

This is the case of a claim against the State, presented to-the Court at the last term, under the 11th section of Article 4th of the Constitution.

After the decision of this case at the last term (sec. 68, N. C. Rep., 327) it was referred to Spier Whitaker, Esq., as a referee, to state an account between the defendent W. PI. Jones and his wards, who were the heirs-at-law of J. H. Harrison, and upon his report being returned to the present term of the Court, exceptions to it were filed by Jones and the defendant Medora Harrison.

This was a civil action to recover possession of a tract, of land, tried before his Honor, Henry, J., at the Spring Term, 1873, of the Superior Court of Yancey county. After answer filed at the trial term, but before the trial,, the defendant’s counsel moved the Court for a rule upon the-plaintiff to produce the authority under which the suit is brought in the name of the heirs of Thomas Wilson, deceased. This motion was overruled, and the defendant’s counsel excepted.

<p>Where three persons upon receiving a deed from their father J. T. made with, him the following covenant: “That J. T. and his family shall have their home upon the land he has this day as executor of J. C., conveyed to them, and that he and his family shall have the use of all the personal property this day conveyed so far as is necessary for their use and convenience, and further, that they shall have a support out of what shall be made upon said land during the life of J. T.: It was held, That the limitation in the last sentence, “during the life of J. T.” applied to all the clauses in the deed, and that after the death of J. T., his said sons were entitled to the possession and enjoyment of all the property conveyed by the deed.</p> <p>When a defendant admits that the plaintiffs are the owners of the remainder-in fee of .the land sued for, but contends that he is tenant for life of the said land under a certain deed executed by the plaintiff, he cannot controvert the title of the plaintiffs to the land, but is confined to his claim under that covenant, and the validity of his claim to a life estate will depend upon a proper construction of it.</p>

<p>An affidavit for a warrant of attachment, under the C. C. P., sec. 201 (Battle's Revisal chap. 17, sec. 201) which states “ that the defendant is absent so that the ordinary process of law cannot be served upon him55 without an averment, that the absence “was with intent to defraud his creditors and to avoid the service of a summons55 is fatally defective.</p> <p>Though a Judge of the Superior Court may refuse a motion made by theflefendant to dismiss a suit upon a ground which appears upon the record, yet he may entertain a like motion at a subsequent term, and dismiss the cause upon the same ground.</p> <p>The case of Brown v. Hawkins, 68 N. C. Rep. 444, explained, distinguished from the present case, and approved.</p>

This was a petition for dower, first heard before the clerk of the Superior Court of Chowan county, and after-wards before his Honor, Albertson, J. The facts of the case were shortly these: Augustus R. Creecy died in the county of Chowan in November, 1872, leaving the petitioner, his widow, and several children, who ■are defendants.

<p>A guardian who acted in good faith was held not to be responsible for omitting to collect a note during theJate war, when it appeared that both of the two obligors were solvent during the war, and were made insolvent by its results. *</p>

This was an indictment consisting of two counts, the first for larceny and the second for receiving stolen goods, to-wit: ten gallons of spirits of turpentine, knowing them to have been stolen.

<p>This was a petition for the sale of land filed in the Court of Equity for Person county, at the May Term, 1855, and thereupon an order was made for the sale upon the usual terms. At the November Term, 1856, it was decreed that the clerk and master invest the purchase money in loans upon bond, taking two or more good sureties, and that he collect the interest annually on the 1st day of January, of every year, and pay the sum to the plaintiff, Sally Round-tree. The cause was then retained for further directions.' ■At the Pall Term, 1871, of the Superior Court of Person county, a notice was ordered to be issued to the defendant,, John A. .Barnett, the late clerk and master and his sureties, that at the next term of the Court a motion would be made for a judgment against them for money received and not accounted for. At the ensuing Term of the Court it was referred to the clerk of the Court to state and report on account, &c. Upon the return of the report with the evidence ■upon which it was founded, the counsel of the defendant, Barnett, filed exceptions thereto :</p> <p>1. That the defendant is charged with the sum of $582, alleged to have been received from John Bradsher, former clerk. and master, and interest thereon when no such sum was so received or came to the hands of the said defendant.</p> <p>2. That the defendant is not allowed credit for the sum of $1,000 invested in a bond of 'the defacto government of the Confederate States, such investment being justified at the time it was made by the state of the country, and the example of prudent men of business.</p> <p>3. That the defendant is not allowed credit for the sum of $-the fundjjof this cause in the office, which were passed over by this defendant or his deputy in office, to his successor, which is shown by the evidence of W. R. Webb,</p> <p>These exceptions were passed upon and overruled both as to the law and facts embraced in the issues by his Honor, Towrgee, J., at the Fall Term, 1872, and the defendant appealed. A sufficiency of the evidence is stated in the opinion of the Court.</p>

This was a civil action commenced in the Superior Court of Wake county on the 5th of April, 1873, and brought for the purpose of obtaining a new trial on account of newly-discovered testimony, under the following circumstances : The plaintiff had brought the original suit against the defendants for the purpose of obtaining an account and settlement of certain matters of difference between him and Jere. Nixon, the intestate of the defendant, Macy.

This is the same with the case immediately preceding it. The following is the written agreement referred to: “This agreement made and entered into this 27th day of January, A. D. 1852, between M. A. Bledsoe and Jere.

This was a motion to set aside an execution made before his Honor, Tourgee, J., at the Special Term of the Superior Court held for the county of Wayne, in January last, when his Honor granted the motion in part and refused it for the residue, whereupon the defendant appealed. The case is fully stated in the opinion of the Court.

This was a rule upon the defendant to show cause why an attachment as for contempt should not issue against him, heard by Watts, J., at Chowan Superior Court, Spring Term, 1873. The cause was heard upon affidavits of plaintiff’s counsel and the defendant’s answer, and by his Honor it was ordered that the rule be discharged upon defendant paying the costs. From this judgment the defendant prayed an appeal. The facts are sufficiently stated in the opinion of the Court.

<p>This was a controversy without action, submitted to Watts, J., upon the following facts agreed, to-wit:</p> <p>1. Cameron F. McRae and Julia T. Burgwyn in contemplation of a marriage to be solemnized between them on the 29th day of December, 1839, entered into a marriage^ contract or agreement, the material parts of which are as fol-' lows: All the property of the intended wife is conveyed to trustees; first, for her use until the marriage; second, she reserves the right to make provision out of the property for her father; third, the husband is to receive during his life -all the rents and profits for the joint use of himself and wife; fourth, if she shall outlive her husband, then to the sole and absolute use of herself and her heirs, &c.; fifth, if the husband shall outlive his wife, then, after his death, for the use of such persons, for such estates, &c., in such proportion, &c., subject to such changes as the wife shall by any ■last will or writing in the nature of a last will, direct, limit or appoint, in this case she having absolute power, &c., and ■the trustees to hold, convey, &c., as she may appoint; and she may execute this power by deed, with the assent of her husband; sixth, in default of such appointment, if she shall have children, which shall outlive her said husband, then for the children living at his death; in default of children, then to her father, brothers and sister.</p> <p>2. Thereafter the said marriage was solemnized, and on the 2Gth of April, 1842, the said Cameron F., and wife, Julia T., conveyed by deed to John Burgwyn the property mentioned in said marriage settlement for the following purposes: first, the husband to have complete control of the property during the joint lives of himself and wife, he to use it as his own; second, upon the death of the husband, if his wife survive him, then the whole of the principal of the property to return to her as if she had never been married; third, but if the husband survives, then he is to be entitled to one-half of the principal, and hold the same to him and his heirs free of all trust; and the other half he shall hold upon certain trusts, <fcc.; fourth, the second half he shall hold, if his wife shall, not otherwise appoint for himself and his heirs, &c.; but his wife may appoint as she will as to this half, and he will carry into effect her directions, &c.; fifth, provides that the trustees shall convey to the said John Burgwyn.</p> <p>3. And thereafter, on the 27th day of April, 1842, the said John Burgwyn reconveyed the same property, for certain purposes mentioned in the said deed to the said Cameron E. McRae, to-wit: the same trusts, &c., as those provided in the deed to him from the husband and wife.</p> <p>4. That thereafter the said Julia T., wife of the said Cameron F., made her last will- and testament with certain codicils, which upon her death was duly admitted to probate in the State of Pennsylvania, on the 13th day of August, 1853, and the said Cameron duly qualified as executor to said last will and testament. The will bears date the 11th Feb., 1846; and, first, ratifies and confirms the deed she and her husband made to John Burgwyn, and make it part of her will; second, she gives one-half of her property to her husband ; giving him power to dispuse of absolutelly $6,000 of this half; and as to the other half she gives small sums to Miss Nash and Mrs. Nash, and the residue thereof to her children, &c., and in default of children to her brothers and sister.</p> <p>The first codicil is dated 11th day of February, 1846, and makes provision for her brothers and sister, and regulations as to how they shall enjoy, &c., if the property shall go to them.</p> <p>The second codicil is dated the 14th May, 1853, and provides: first, that the item of $6,000 in her will shall stand as therein specified, and revokes the legacies to Miss and Mrs. Nash; second, she says “all the rest and residue of my estate, real, personal and mixed, I give and bequeath to my beloved husband during his life, and after his death to my children and their heirs in equal parts.” If her children is without issue she gives it to her sister Emily Burgwyn and her heirs.</p> <p>5. That thereafter the said Cameron F. McRae, on the 2d day of April, 1870, made his last will and testament, and on the 1st day of August, 1872, died and thereupon his said will was duly admitted to probate, and thereupon the defendant, Susan, the sole executrix therein named, qualified as such and took into her possession certain bonds and notes, representing, in part, the trust fund originally conveyed in the aforementioned marriage settlement.</p> <p>The will of Cameron F. McRae, dated 22d April, 1870, first, gives his wife Susan certain property in Fayetteville, subject to a change; second, all the rest and residue of his estate, (which includes all he obtained from his first wife) he gives to his wife Susan for life, and after her death to all liis children; but if he cannot do this, then he gives her the $6,000 for life, and after her death to his children by her; third, if he. has power to dispose of the one-half got from his first wife, then he gives to his second wife $6,000 for life, and then to his children by her, and the residue of this half to all his children, &c.; fifth, the rest of his estate, with some trifling exceptions, he gives to his second wife absolutely.</p> <p>6. The plaintiffs are the only children of the marriage of the said Cameron and Julia, and the defendant, William P., Julia T. and Edward M. McRea are the children of the said Cameron and Susan.</p> <p>7. After the death of the said Julia, the said Cameron gave to his children, the plaintiffs, such sums of money as were necessary for their support and maintenance, and took no receipts for the same, and made no charges against them for the sums so given, and did not at any time inform thém that the money so given them belonged to them of right as a part of the said trust fund, but on the contrary, informed them that the said sums so given were a donation, from himself to them.</p> <p>8. The said Cameron made no account nor return, either as executor of the will of the said Julia, or as trustee under the deeds, in the Court where letters testamentary were granted to him, nor in any other Court as far as can be ascertained.</p> <p>Upon this state of facts the plaintiffs insisted that they were entitled to the whole of the fund share and share alike, except the sum of six thousand dollars.</p> <p>The defendants insisted, on the contrary, that the defendant, Susan, is entitled during her life to one-half of said fund, and at her death that the defendants, William P., Julia T. and Edward M. are entitled to six thousand dollars of the said one-half, and the residue of the said one-half is to be equally divided between the plaintiffs, John B. and Catharine, and the defendants, William P., Julia T. and Edward M. share and share alike. After the case agreed was made up, the defendant,'Susan McRae, died, leaving an infant son, who was born after the death of his father, and her executor, Kemp P. Battle, and the said infant were made parties defendants.</p> <p>His Honor being of opinion with the plaintiffs, gave judgment accordingly, from which judgment the defendants appealed.</p> <p>of whom B. H. Battle, Jr., filed the following brief on the question of fraud, being presumed from the deeds of 1842:</p> <p>1. In this case there is no allegation or suggestion of fraud. Courts of Equity will not give relief on the ground of fraud, unless fraud is distinctly alleged, McLane v. Manning, Wins. Eq. 60, Witherspoon v. Carmichael, 6 Ired. Eq. 143.</p> <p>2. That the wife may give her separate property to her husband on the ground that she is a feme sole as to such property. All the writers agree with Roper on Husband and Wife, (32 Law Lib. 220), McQueen on Husband and Wife, (66 Law Lib. 297), Sch. Dom. Relations, 226, Clancy on Rights of Husband and Wife, 347.</p> <p>3. In Grigby y. Cox, 1 Ves. Sen. 578, Lord Hardwick says that though (in regard to such transactions between husband and wife alone) a Court of Equity will regard them more jealously, and if there is any proof that the husband had any improper influence over the wife by ill or even extraordinary good usage to induce her to it, the Court might set it aside, but not without that. So other cases cited in Clancy on Rights, <fec., 348 to 350. In Rich Crocket, 9 Ves. Jun. 369, no doubt was expressed of the validity of the gift by wife to husband, and the question was whether there-was evidence of such gift; and in Par Ices v. White, 11 Jun. 222, Lord Eldon says a wife may give her separate property “to her husband as well as to anybody else; that the cases-never intended to forbid that; and that if he conducts himself well, his Lordship did not know that she could make a more worthy disposition of it, though certainly the particular act ought to be looked at with jealousy.”</p> <p>4. Here if the Court is inclined to look with jealousy at' the transaction embraced in the deeds of April, 1842, we suggest as a complete answer to the difficulty, first, that the-gift left her ample provision, and he received only part of what the law would have given him by the marriage, without the settlement, and which she reserved to herself power to give him (or to anybody else) after her marriage by deed,, if she saw proper; second, that she never complained of said deed in her lifetime as a fraud upon her rights, nor has it been attacked as fraudulent since her death, either by the next friends of her children, or by them since they became-of age several years ago; third, that the other party to the-deeds was the father of the wife, whose right and duty it was to protect his daughter, and his grandchildren by her.</p> <p>5. The case of Lee v. Pearce, 68 N. C. Rep. 76, is not directly In point, because the relation of husband and wife is not one of those there discussed; but if it were in point, the circumstances attending the transaction here (as above) rebut any presumption of fraud, and place the burden on the other side, if fraud be alleged.</p> <p>6. We suggest whether, in the absence of the charge of fraud, those representing the estate of the deceased should be required to meet a suggestion of fraud after the death of all the parties to the transaction — husband, wife and father of wife — and after all concerned have acquiesced for many years, by silence at least, in the transaction.</p>

This was a controversy without action, submitted to his Honor, Logan, J., Judge of the Ninth Judicial District, at the last term of Lincoln Superior Court, under the 315th sec. of the C. C. P. The following is the statement of the controversy and the decision of the Judge upon it; 1. John Hager died in Lincoln county in September, 1872, where he resided.

This was a civil action to recover real property tried at the last term of the Superior Court of Ashe county, before his Honor, Mitchell, J., when the defendants, under the ruling of the Court, had a judgment, from which the plaintiffs appealed. The facts of the case are sufficiently stated in the opinion of the Court.

This was an action or ejectment commenced before the new Constitution, tried before his Honor, Henry, J., upon the report of a referee at the last term of the Superior Court of Henderson county. The plaintiff had a judgment, and the defendants appealed. The facts are sufficiently stated in the opinion of the Court.

This was a civil action for libel, in which the complaint alleged as follows: 1.

This was an application under the C. C. P., sec. 133, made to the Judge of the Superior Court of Jones county, to set aside a judgment between the parties upon the ground that it had been obtained by a mistake. His Honor, Clarke, J., made order to set the judgment aside and granted a new trial at the last term of the Court, and the plaintiff appealed. The case is sufficiently stated in the opinion of the Court.

This was a civil action brought to the Superior Court of the county of Mecklenburg, in which the plaintiffs complained of a judgment which the defendants had obtained in the Superior Court of New Hanover county by a fraudulent combination and contrivance, and they prayed for an injunction against it.

This was a civil action in which an injunction was applied for and granted by his Honor, Logan, J., at Mecklenburg, in December, 1870, and which was brought to the Supreme Court upon the appeal of the defendants. The case with reference to the points decided will sufficiently appear in the opinion of the Court.

'This was a suit in equity, commenced under the former .system, in which a decree was made by Buxton, J., at the -Spring Term, 1873, of the Superior Court of Robeson county, from which there was an appeal by the defendant. 'The case is sufficiently stated in the opinion of the Court.

<p>A perpetual Injunction against issuing an execution on a judgment at law, granted upon motion and affidavits is erroneous. It is not in accordance with any allowable mode of proceeding under the old system or the new.</p>

This was an action op debt brought before the adoption of the C. C. P,, and tried at the Spring Term, 1873, of the Superior Court of the county of Gaston, before his Honor, Logan, J. On the trial the plaintiffs had a verdict and judgment, and the defendants appealed. The facts of the case are sufficiently stated in the opinion of the Court.

This was a petition by an administrator de bonis non to sell real estate for the payment of the debts of the intestate.

This was a civil action to enforce a mechanics’ lien tried at the Spring Term, 1873, of the Superior Court of Lincoln county, before his Honor, Logan, J. On the trial, the plaintiff had 'a verdict and judgment, and the defendant appealed. The case is sufficiently stated in the opinion of the Court. 1. The construction of a written contract is for the Court, and not for the jury.

This was an action on his official bond against the defendant, Porter, as constable, and his sureties to recover the sum of $66.19, which he had collected and failed to pay over to the plaintiffs. The penalty of the bond was five hundred dollars, and the plaintiffs demanded judgment against the defendants for the sum of five hundred dollars, and for costs of suit.

This was an indictment for forgery tried at the January Term, 1873, of the Superior Court of New Hanover county, before his Honor, Russell, J. The charge was for forging a due bill in the following words: “Due to William H. Harrison for filling of rosin and storing of sprirts $50, payable 25th of August, WILLIAMS & MURCHISON, with intent to defraud one George W. Williams and one Daniel M. Murchison, against the form of the statute in such case made and provided, and against…

This was a civil action to recover the balance of an account, tried before Logan, J., at the last Term of the Superior Court of Gaston county, where the defendants obtained a verdict and judgment, and the plaintiffs appealed. The facts necpssary to a proper understanding of the questions decided, sufficiently appear in the opinion of the Court.

Indictment of a white man for the murder of a negro, tried before Logan, J., at the last (Spring) Term of the Superior Court for Mecklenburg county. Upon the trial the prisoner was found guilty and appealed from the sentence of death which was pronounced upon him. The facts are sufficiently stated in the opinion of the Court.

<p>This was a civil action upon a note given for the purchase of a tract of land, and upon the trial before his Honor, Watts, J., at the August Term, 1872, of the Superior Court of Nash county the plaintiff obtained a verdict and judgment, from which the defendants appealed. The case is sufficiently stated in the opinion of the Court.</p>

This was a civil action tried before Tourgee, J, at the Spring Term, 1872, of Guilford Superior Court. On the trial the following issues were submitted to the jury: 1. Was the purchase of the land in question made with the money of one Crane ? 2. Did one Owen hold the lands for the use and benefit of Crane, or adversely to him? 3.

This was a petition by the plaintiff as administrator of Moses Pitts, filed before the clerk of the Superior Court of Cabarrus county, for the sale of certain lands of his intestate to make assets for the payment of the debts of the intestate. It was taken 'by appeal to the Superior Court, where at the last term it was decided by Logan, J., in favor of the plaintiff, and the defendants appealed. The case is sufficiently stated in the opinion of the Court.

This was a civil action brought to recover the value of a still which had been taken and converted to their own use by the defendants, tried before his Honor, Buxton, J., at the last term of the Superior Court of Moore county.

This was a civil action brought upon a promissory note without a seal, but it was alleged in the complaint that the parties to it intended to annex a seal, but it was omitted by fraud, accident or mistake.

This was a civil action, and upon the trial, before his Honor, Tourgee, J., at the Spring Term, 1873, of the Superior Court of Chatham county, a jury was waived by consent, and his Honor found the facts and stated his conclusions of law, which were in favor of the plaintiff; and'from the judgment rendered thereon, the defendant, Nash, appealed. These facts and conclusions of law are sufficiently stated in the opinion of this Court.

, holding the Special (January) Term, 1873,, of Craven Superior Court.

Civil action, tried before Mitchell, J., at Spring Term, 1873, of Wilkes Superior Court.

Special Proceeding, petition for divorce, a vinculo matrimonii, filed before the Clerk of the Superior Court of Cabarrus county, and thence transferred to the Superior Court, where it was tried before Logan, J, at Spring Term, 1873.

<p>Civil action, fried before Clarke, J., at Fall Term, 1873 of the Superior Court of Lenoir county.</p> <p>In his complaint the plaintiff alleged that John C. Washington, of Lenoir county, on the 31st of January, 1861, executed to him a note for $512.80 with interest, which note, he, the plaintiff, indorsed to one Stephen White, now deceased, with the understanding and agreement on the part of both White and Washington that the plaintiff was not to be called on for the payment of the same, the indorsement being merely for the purpose of vesting title in the note to White, and that White was to look alone to Washington for its payment; that the note was passed to White in payment of plaintiff’s store account, he, White, stating that it was the same as cash to him, as he himself owed Washington, and receiving the note with this understanding, gave the plaintiff credit for the amount of the note on his books; that this credit was given 6th March, 1864, as appears from White’s books, and the note and interest, to-wit: $638.94, charged to Washington’s account; that the entries on the books of White, was made by one Coleman, who after the death of White, was employed by his administrator to post his intestate’s books.</p> <p>Plaintiff further alleged that Stephen White was dead, and that Wm. White administered on his estate; that in 1871, the administrator dying, one Harper was appointed administrator de bonis non of Stephen White’s estate, and that he, acting under an order of the Probate Court, sold the said note at auction, when the defendant purchased it for less than $100.</p> <p>That the defendant sued on the note, and at Spring Term, 1872, obtained judgment on the same, and intends issuing execution thereon; that on the trial, the plaintiff, in that action the defendant, was precluded from proving the facts, understanding and agreement between himself, White and Washington, in consequence of the death of White; that since the trial, he, the plaintiff, has had an examination of the books of White, and finds the entries before stated, and is now prepared to prove the agreement with White, and that he ought not to be held responsible for the payment of said note on account of his indorsement.</p> <p>Plaintiff demanded judgment that, defendant be restrained from collecting the judgment, &c.</p> <p>A temporary order being issued by Judge Clarke, restraining the defendant, from proceeding to collect the judgment he had obtained against the plaintiff at Spring Term, 1872, the defendant appeared and answered, and stated that on the trial of his action against the plaintiff it was in evidence that when the note sued on was the property of Stephen White, the maker, Washington, held large claims against White, and the question being, had there ever been any settlement between White and Washington of their respective claims, White also having other unadjusted claims against Washington, he, Washington, swore that there had been an executory agreement that their several claims should be settled and allowed, but that he could not say there had ever been any actual settlement; that if there had been such settlement the books of White would show it; that the entries on White’s books were made by Coleman since the death of White; that at the time of the trial the books were in town, and also the administrator, the latter being in the Court-house, and could have easily been made evidence.</p> <p>It.appears from the case agreed, in addition to the facts stated in the complaint and answer, that on the first tpial the plaintiff here was ignorant of the existence of the books of White containing the entries before set out, and that those entries were taken by Coleman from a memorandum book kept by White himself, which book had been accidentally found after the death of White.</p> <p>Upon the foregoing facts his Honor ordered the judgment obtained at Spring Term, 1872, by defendant against the plaintiff to be set aside and a new trial granted. From this judgment defendant appealed.</p> <p>1. The plaintiff has misconceived his remedy, if remedy he has. When the distinction between actions at law and suits in equity prevailed, it may be conceded that the plaintiff’s remedy was by bill, and in the meantime to enjoin the collection of the judgment. But now the remedy is by motion in the cause in the form of a petition supported by affidavits. Mason v. Miles, 63 N. C. Rep.; Jarman v. Saunders, 64 N. C. Rep. 367; Gee v. Hines, Phill. Eq. 315; Rogers v. Holt, Ibid. 108.</p> <p>But if we are mistaken :</p> <p>2. The assignment of the bond by Tull to White was in blank. Tull now proposes to prove that at the time of his assignment in blank to White, it was agreed that he was not to be liable for the debt, as the purpose of the assignment was only to pay Tull’s debt to White, and give White a cause of action or right of set off against Washington. Is parol evidence admissible to show this? We think not. See Smith on Con., 28. Reynolds v. Magniss, 2 Ired. 30 Admitting it to be competent as between Tull and White, still it cannot be as between the assignee for value and without notice, being a negotiable instrument.</p> <p>3. But again, it is said the debt was extinguished before the bond became by purchase into the hands of Pope; and that Tull can show this by White’s books. White’s books show simply that Tull’s store account with him was paid by the transfer of this bond. But White’s books not only do not show that Washington has paid this bond, but they show that Washington was debited with this bond in his account, and the bond is found in White’s possession by his administrator after his death, which is almost conclusive evidence that Washington never satisfied this bond debt to White.</p> <p>4. A Court of Equity will not set aside a judgment at law except for fraud, circumvention or perjury practiced upon the trial. Wilson v. Leigh, 4 Ired. Eq. 100. Nor ought this power of a Court of Equity to set aside a judgment at law be exercised in any case when the party applying has been guilty of any laches. Dyche v. Patton, 8 Ired. Eq. 296, and in Houston v. Smith, 6 Ired. Eq. 268, it is said “ only for new matter, not known at the trial at law, has equity ever interfered to grant a new trial, and then not for matter to repel, the charge by opposing proof, but such as destroys the proof.”</p> <p>See also Poiuell v. Watson, 6 Ired. Eq., and particularly Burgess v. Lovingood, 2 Jones Eq. 460, where all the cases in ■our Courts are collected and commented on.</p> <p>And further:</p> <p>A party cannot ask equity for a new trial at law merelyr because he failed to make good a legal defense at law. Gatlin v. Kirkpatrick, 1 Car. Law Rep. 534; Fentress v. Rollins, Term Rep. 177; Peace v. Nailing, 1 Dev. Eq. 289 ; Bizzell v. Bozeman, 2 Dev. Eq. 154; Champion v. Miller, 2 Jones Eq. 194; Martin v. Harding, 3 Ired. Eq. 603.</p> <p>Nor because he can adduce cumulative evidence as to the facts on which his defense rested at law. Pemberton v. Kirk, 4 Ired. Eq. 178; Alley v. Ledbetter, 1 Dev. Eq. 449; arid where defendant while plaintiff, concealed facts at law. Fish v. Lane, 2 Hay. 342.</p> <p>One who does not prove on trial at law payment which he alleges he has made, can have no relief in equity unless he can show fraud and circumvention practiced to prevent his making proof. Heaver v. Erwin, 7 Ired. Eq. 250.</p> <p>Oases where it was alleged witness for opponent had perjured himself: Peagram v. King, 2 Hawkes 295; Lbid 605;.. Dyche v. Patton, 8 Ired. Eq. 286;' 3 Ired. Eq. 332.</p> <p>Cases of newly-discovered evidence where the relief was-refused: Wilson v. Leigh, 4 Ired. Eq. 100; Powell v. Watson^. 6 Ired. Eq. 94.</p> <p>Character of new evidence must be decisive. Houston v. Smith, 6 Ired. 264; Burgess v. Lovingood, 2 Jones Eq. 457.</p> <p>This is a civil action brought by plaintiff to obtain a new-trial in a case in which he was defendant in the Superior.Court. It is a proceeding in the nature of a bill in equity, and as such the case of Peagram v. King, 2 Hawkes 295 and 605, is directly in point, and in our favor.</p> <p>The circumstances under which the newly-discovered testimony was found show that the plaintiff in this suit was not guilty of any negligence in not having produced it on the former trial, and the evidence is of such a character that it not only repels the adversary’s charge, but it destroys his proofs.</p> <p>The principles laid down in Peagram v. King are fully recognized in Houston v. Smith, 6 Ired. Eq. 264.</p>

<p>A plaintiff having an action pending, cannot maintain a second action against the same defendant for the same cause. Such pending action should be pleaded in abatement.</p> <p>But a judgment in an action brought to recover certain property specifically is no bar to a subsequent action between the same parties seeking to recover damages for the taking and conversion of such property.</p> <p>A defendant is not bound to assert a set off or counterclaims in an action brought against him whenever he may do so; nor does the plaintiff’s recovery bar a subsequent action for such counterclaim, which the defendant might have, but did not plead in the original action.</p> <p>Irregular process, after it has been set aside, is no j ustification to the plaintiff in the action, or his attorneys and aiders.</p> <p>Eborn v. Waldo, 5 Jones 438; Pannell v. Hampton, 10 Ired. 463; Skinner v. Moore, 2 Dev. & Bat. 138, cited and approved.</p>

Civil action, tried before Tourgee, J., at the January Term, 1873, of Wayne Superior Court. The plaintiffs, as heirs at law of one Gaston H. Alford claim a certain tract of land in the possession of the defendants, and bring this suit for a recovery of the same, and for $10,000 damages.

Civil action, brought to recover the amount of a bond, tried before Tourgee, J., at Spring Term, 1873, of Person Superior Court.

Civil action, tried before Cloud, J., at the Spring Term, 1873, of the Superior Court of Davidson county. Action of covenant originally brought (under the old system) to the Superior Court of Rowan county, from whence it was removed to Davidson, and there tried upon the plea of non est faotwrn as to the defendant, Dumas.

<p>No Court except that of the Probate Judge, or some Court acting on appeal from him, has jurisdiction to issue execution against the assets of a decedent.</p> <p>An action may be broughtin any Court having jurisdiction against an administrator, and Judgment obtained, but no issue of fully administered can be tried, and a judgment for the plaintiff merely ascertains the debt.</p> <p>Acts of 1868-’69, chap. 113, and of 1871-72, chap. 213.</p>

Indictment for misdemeanor, tried before Russell, J., at Robeson Superior Court, Spring Term, 1873. Defendant was indicted for disturbing a religious congregation. The evidence as detailed by several witnesses was substantially this: Defendant is a member of the Methodist Church; he sings in such a way as to disturb the congregation; at the end of each verse, his voice is heard after all the uther singers have ceased.

<p>Civil action, at first commenced in Gaston county, and thence regularly removed to Lincoln, where it was tried before Logan, J., at Spring Term, 1873.</p> <p>The following is the case, signed and sent by the counsel of the parties, with the record to this Court.</p> <p>This is an action brought by the plaintiff in his official capacity as sheriff of Gaston county, to recover of defendant the amount of a bid made by him for a tract of land sold 'by plaintiff at a judicial sale under a venditioni exponas, and which bid the defendant after said sale refused to pay.</p> <p>The plaintiff in his own behalf testified that having in his hand's a fieri facias against PI. W. Rumfelt, Wm. R. McLean and J. E. Neagle, returnable to the Spring Term, 1869, of Gaston Superior Court, and before levying and advertising the lands of defendant, Rumfelt, for sale, he summoned Wm. McKee, Rufus J. Beatty and James Wagstaff as commissioners to lay off to said defendant his homestead and personal property exemption; that he met said commissioners on the day appointed on the premises, and after administering the oath to them he left and did not return; that the lands of Rumfelt consisted of several different tracts all adjoining each other, and after laying off the homestead he advertised the same in written notices posted at' the Court-house door, and three other public places in the county, to be sold on the 3d day of April, 1869 ; that at the request of said William R. McLean, he consented for McLean to make an advertisement in the Charlotte Democrat, in his, McKee’s name, as calculated to attract the attention of a larger number of persons; that said Wm. R. McLean wrote the advertisement and procured its insertion in the Democrat, but witness was not positive as to whether he saw the advertisement in writing before its publication, but thinks he did. He saw it afterwards. The advertisement is in words and figures as follows:</p> <p>“ Important Sale oe Real Estate. — At the Court-house in Dallas, on Saturday, the 3d of April, 1869,1 will sell that valuable tract of land known as the ‘ J. B. Neagle Tract,’ on the Catawba river, containing 208 acres, more or less, with a good mill site and water power.</p> <p>“ Also one other tract, known as the ‘ Rumfelt Home-Tract,’ containing 200 acres, more or less, on which is the-well-known and valuable Rumfielt gold mine.</p> <p>“ Also one other tract, known as the McLean Gold Mine-tract, containing 50 acres, more or less, levied on as the property of H. W. Rumfelt, to satisfy executions in my hands in faver of J. M. Hutchison, assignee, v. H. M. Rum-felt, W. R. McLean and J. E. Neagle. The above land will be divided to suit purchasers. Terms cash.</p> <p>“ G. W. McKEE, Sheriff.</p> <p>"March 1st, 1859.”</p> <p>“ In regard to the valuable quality of the above lands, reference is made to W. F. Davidson, Esq., M. L. Wriston, Esq., and W. J. Yates, editor of the Charlotte Democrat.”</p> <p>Witness further testified that he did not sell the lands aforesaid on the 2d of April for want of bidders, and he made such return on the execution; from the Spring Term a venditioni exponas issued to sell the lands levied on, and he advertised them by notices posted as usual, but in them merely recited the J. B. Neagle tract as containing 208 acres,, without saying anything as to a mill site and water power; on the 4th of October he offered for sale the lands of Rum-felt, stating the Neagle tract as containing 208 acres without mentioning a mill site and water power when the defendant. ,at a single bid offered the sum of $2,625, and the same was-knocked off to him at that sum; that shortly before the sale commenced, the defendant came, to him and said he thought, of bidding for some of the land, and wished to know if he-did so, whether he would give him some little time in which to raise the money; and he agreed that he would .give him such time; after the defendant bid off the land he came to witness to know within what time he must raise the money, and two weeks were given as the time for the payment of the money; at the end of that time the defendant •came to pay the money, alleging that he had it, and demanded a deed. After referring to the Register’s books, plaintiff offered to convey the “ J. B. Neagle tract ” by metes and bounds of the original tract; but defendant insisted •that they did not include the mill site and water power, which he alleged were the principal objects of his purchase, •and if he did not get them, he did not want the land; plaintiff said he did not sell any mill site and water power to defendant; in fact, he did not know anything about -them, but was willing to convey the J. B.. Neagle tract of 208 acres as described in the original on the Register’s books to which he had reference for the metes and bounds; -defendant refused to take any such deed, and went off without paying his money; above six or eight week afterwards, and two weeks after Gaston Court, he, plaintiff, prepared a •deed and went to defendant’s house and tendered it to him, containing the 208 acres by the metes and bounds in the ■original deed, and demanded the amount of the bid; defendant asked if it contained the mill site and water power opposite the narrow strip of land; plaintiff told him it did not; the defendant replied he would not have it; witness then told him he had sold the narrow strip of land •at the foot of the shoal to his father, Wm. McKee, and he, defendant, could get it for twenty-five dollars; defendant •replied he had bought it once and did not wish to buy it •again from a third person; plaintiff then told him that he. had not yet made a deed to his'father, and he could control the matter, and he would insert the mill site and water power in the deed if defendant would pay the money; ‘defendant said he believed he would buy other [lands with ■•thé money; he also testified that he had never been on the land, and knew nothing about the shoal or mill site at that time; plaintiff thereupon left him.</p> <p>Witness further testified that upon the venditioni exponashe had indorsed a. return of the sale to Lineberger, and. after he refused to pay he went into, the clerk’s office with., the venditioni exponas and asked the advice of the clerk as-to what he should do ; the clerk told- him he had no advice to give; that if he made a return it would be entered on the execution docket, and if he- made no return it. would be his duty to issue an alias venditioni exponas; he then asked the clerk if he could not make no return and let an alias issue and then sell the land again, and hold Lineberger responsible for the difference; clerk said he did not know; he must advise for himself; that he, the plaintiff, concluded to make- no return, .and took his pen and erased the return of sale already written upon the venditioni exponas ; that he did not order any of the alias fijas to issue, nor did his counsel; that the tendering of the deed was in accordance with the advice of his counsel obtained at Court-after the sale; that he also said in the conversation with., the clerk that he would strike out the return until he could, see his counsel at Court; that the clerk, did issue an aliasvenditioni exponas which was returned to the Spring Term, 1870; another returnable to Fall Term, 1870; and another-to Spring Term, 1871, on which last he made returnable as-follows: “ The within named property, the fifty acre tract known as the Gold Mine tract, was sold, bid off by J. L. Rumfelt; the J. B. Neagle tract was sold and’ bid off by Jacob Lineberger, for which there is a suit now pending. The forty-three acres, part of the Mine tract, was bid off by-William McKee.”</p> <p>Cross-examined — Prior to sale he-had according to the-Act of Assembly appointed John Smith and W. R. Rankin to appraise the land; they had made such -appraisement, and he had it on day of sale, hurt after, searching for it couldi. ■not find it — supposed it might be in the clerk’s office; Lineberger’s bid was three-fourths of the appraisement. He further testified that subsequent to his tender of a deed to Lineberger at the defendant’s own house he did make a deed to his father for forty-three acres, which included the strip of land in controversy, which strip did not belong to the Neagle tract but belonged to the Lattimer tract.</p> <p>Jacob Lineberger in his own behalf testified that in the ■Spring of 1SG9, he was looking about for a tract of land with a good water and mill site upon it with a view of purchasing it for the benefit of a son and one Wilson, a son-in-law ; that the Democrat newspaper, containing the advertisement of the sale of J. B. Neagle’s tract, and other lands of H. W. Rumfelt, over the name of plaintiff as sheriff was .received by him, and he concluded to examine them; that he did not attend the sale of the land advertised for April; but learned soon after that the sale was postponed until October 4th, 1869; he did not see or look for any written advertisement of the pVoperty, as he had a printed description of the property in the Charlotte Democrat, and relied upon that, and had no reason to doubt its correctness; in July, he got a neighbor, Mr. Craig, who said he was well acquainted with the Neagle tract, to go with him to the premises and show him the lands and lines; Mr. Craig took him along the river and on the northern lines and on the west, and then down the southern side to the river; but stated that he was not well acquainted with the lines on the southern boundaiy, joining the Lattimer lands; witness saw the mill-dam fronting the Neagle lands, and a mill-house erected as a gold mill, but saw no other water power along the river front; above the dam being eddy or pond water nearly to the head of the shoal; soon thereafter he got one Kerr, who lived close by the Neagle tract, and who had carried the chain for Mr. Rumfelt on some survey, and professed to know, to go with him and show him the lands and lines; he did so and pointed out all the lines Craig had shown him, and also those on the south side nest the Lattimer. tract, and upon reaching the branch lying between the Neagle and Lattimer tract followed the same to the river; he did not point out any part on the river side above the branch as belonging to the Lattimer lands, and from his showing defendant did not doubt but the mill site and water power opposite the Neagle land was part and parcel thereof; he did not go to Messrs. Yates, Davidson or Wriston, who were referred to in the advertisement; witness was satisfied ■with the land and water power and mill site, and concluded to buy it if it did not command more than he thought it was worth; he attended the sale, and had an interview with the sheriff, who agreed to give him time to raise the money if he should buy; when the Neagle tract was offered he bid for the same $2,625, the three-fourths of the value as appraised by the appraisers; after the sale the sheriff required him to bring the purchase money in two weeks; on his way home his son-in-law, Wilson, told him a conversation he had with Mr. Wm. McLean in relation to the water power after the sale, and he, Wilson, informing him that Wm. McKee claimed that he had purchased the water power and mill site, and that he had better look into the matter before paying the amount of his bid; that on the day appointed he carried the money to Dallas and told plaintiff he was ready to pay, upon the making on his part a proper deed ; after some examinations) and conversation, sheriff said he had not sold to defendant the mill site and water power and he could not insert that in a deed, but would convey the J. B. Neagle tract, 208 acres, according to its boundaries as shown by the Register’s books; witness refused to take such deed, saying that he had purchased the Neagle tract according to his advertisement, and the mill site and water power were the chief inducements to his purchase; plaintiff denied that he had put that advertisement in the paper, or that he had sold under it; witness affirmed that he had bought under that advertisement, and if he did not get what he bought he would not pay; witness left and went home; some two or three weeks after the Superior Court, [plaintiff came to his house with a deed, and the conversation then occurred between them as recited in plaintiff’s testimony.</p> <p>Wilson, in behalf of defendant, stated that he was a son-in-law of defendant, and for him the proposed purchase was in part contemplated, knowing that defendant was' desirous of buying a tract of land with a water power on it; after the adjournment of the sale of the land in the Spring of 1869, he received a copy of the Democrat containing the advertisement, and showed it to defendant; that he accompained defendant on his two visits to the land under the guidance of Craig and Kerr; saw the dam and steam mill house fronting the Neagle land, and did not learn from either of the guides, and did not doubt but the same were a parcel of the Neagle land; he saw no other water power opposite the Neagle land, for it was all pond and eddy water above on the shoal; about one week before the sale of October 4th, he carried his sorghum cane to the mill of William McLean, who lived close by the Neagle land, and Mr. McLean said to him he was glad Mr. Lineberger intended buying the land and erecting mills which would be a great convenience to the neighborhood; and that it would not cost much, as the dam was already built; he accompanied defendant to sheriff’s sale, and heard the crier announce the Neagle tract containing 208 acres, &c., but he said nothing about mill site or water power; defendant bid for the same $2,625; the sheriff next offered a forty acre tract for sale as Rumfelt’s property, and in his description said nothing as to water power and mill site; those were the only lands offered for sale; after the sale was concluded, William B. McLean said to him, now is the time for you to buy the mill site and water power, as you can get it cheap; he said Mr. Lineberger had bought it; Mr. McLean said no, ¥m, McKee had bought it; witness was surprised at this information and communicated it to Mr. Lineberger on their way home and advised him to be cautious in paying over his money without getting a deed for what he supposed he had bought.</p> <p>testified that he was clerk of Gaston Superior Court; that plaintiff came into his office with the venditioni exponas in his hand and said, “ I have here some papers, I do not know wffiat to do with them ; I have never been treated so before; that Lineberger had bid off the land and asked for a little time to pay the money, he had given it, and now he would not take it at all, and wished to be advised”; witness refused to advise, but said if he made a return he would enter it on the execution docket, and if he made no return he should be bound, as his duty required, to issue an alias venditioni exponas; plaintiff replied he believed he would call it no return, and cross out the return and let you issue new executions, and if I sell the land over again I will sell it at Lineberger’s risk, like an administrator’s sale, and he did put crosses over the return he had written on the executions and handed them in in that way; other aliases were issued as if no return had been made; that neither sheriff or plaintiff in execution or his counsel ever ordered him to issue; that he did so because he supposed that was his duty; plaintiff was at the time sheriff of Gaston, but had gone out of office in September last; the sale was on the 4th of October, and the Court met on the 7th November, 1869.</p> <p>testified: He had been summoned as surveyor to aid the commissioners in laying off the homestead of H. W. Rumfelt, in the Spring of 1869; the commissioners instructed him not to include any of the gold mines or water power, as they agreed to allow only arable land, 125 acres, at §8 per acre, for the homestead; they were too valuable and would bring much more for the creditors, and if they were included they should value the homestead over again; Rumfelt desired the homestead should be laid off the Lattimer lands, which lay south of the Neagle tract; the first day he laid off the tract, parcel of the Lattimer, containing 165 acres, but did not cross the branch between the Neagle and Lattimer lands above which was the water power ; neither did he take in any of the gold mines; finding that his surve}^ included too much, the commissioners directed him to take out 40 acres wherever Rum-felt directed them; he did so and laid off the 40 acre tract as so marked in the pled ; that he never cut off the strip of land and annexed it to the Neagle tract; he further stated that the branch -was near the dividing line between the Lattimer and Neagle lands ; that in front of the lower end of the Neagle land there was a narrow strip of land which was part of the Lattimer land and the branch crossed the lower end of this strip ; that this narrow strip was only two or three poles wide and thirty-four poles up the river; it was too narrow for the erection of proper buildings, roads &c., for the proper use of the water power, which stood on this strip and just below the upper corner and line of this small ■piece of land ; that there, was a clam erected below the upper lino, five or six feet high which was built obliquely across the river up to the shoal and the larger part of the dam was opposite tiro Neagle land; there was a small mill house below the dam, but had not been driven by water; it was n gold mill and run by steam, not connected with the water power; there was no other water power that he could see, on the river front of the Neagle land, except where this dam sLood; all above was pond water nearly to the top of the slioal. The witness was asked if he was not instructed by the commissioners, when laying off the homestead, to layoff this strip to bo sold with the Neagle tract, as it would become more valuable and bring more money for the benefit of the creditors ? This was objected to. Defendant’s counsel stated that they expected to show and satisfy the jury that the divisions of the lands made by the commissioner and surveyor was adopted by the sheriff in his sales in all respects. Objection sustained, and testimony ruled out. The witiness further testified, that on the first day of the survey, observing the directions of the commissioners, he had crossed the branch and included this narrow strip in his bounds of the 165 acres; Hana never ran around the strip at all, but only cut off 40 acres by the inside line joining the homestead; this necessarily cut off the strip with the 40 acre tract.</p> <p>was defendant in the executions, and owned all the lands ; he had built the dam now standing on the narrow strip of land several years since; it was built of logs and rocks, and ran angling up the river; the shore end of the dam abutted against a rock on the upper end of the narrow strip, and the larger part of it was opposite to the Neagle tract; the fall was about six feet at the dam, and there was no other water power opposite the Neagle land, as it Avas all eddy water from the dam; it was built for a saA mill; the mill house erected beloAV the dam \A7as used as a gold mill, and AATas driven by steam poAver. Was asked Avliether on the first trial of this suit in Gaston, the plaintiffs offered any evidence, or alledged that there Avas any other mill site or Abater power fronting the land except where the dam stood. Objected to, and ruled out.</p> <p>stated that he and John Smith AArere called upon by the sheriff to appraise the lands of Rumfelt, AA'itli a vieAA" to the execution sale; they valued the Neagle land, including strip and water poA\7er at $3,500, and reported same to sheriff; they did not tell him particu- ■ larly that they included the strip and water power.</p> <p>had assisted Mr. Rumfelt to survey the Neagle land when he bought it; had accompained Mr. Lineberger in 1869, when he viewed it; he showed him all the lines as he supposed, but did not tell him that the strip of land did not belong to the Neagle land, for he did not know it, but showed him all the courses, including the Water oak and White oak.</p> <p>lived near the Neagle land sixty years; knows all the lines, and knows that the strip is not a part of it, and never was a part of it; it always belonged to the Lattimer tract; he put the notice in the Democrat newspaper; there is a good water power on the Neagle land, 160 yards above strip of land, opposite to the Rock Island wheel house, with about as much fall as at Rock Island, three or four feet high ; there are other water powers- and mill sites opposite to the Neagle land ; the water power and mill site alluded to in the advertisement was the one 160 yards above the dam; did not think the water ponded back more than 160 yards; the part of the dam now remaining runs from the rock corner in the river diagonally to the island, and is all ozi the Neagle tract; he is one of the securities of Rumfelt, and his property was bound by the execution, and he put the advertisement in the Democrat to make the property bring as much as possible, and had paid for the advertiseznent himself; did have the conversation with William Wilsozz at his sorghum mill as recited by him, but did zzot tell him that the strip of land did not belong to the Neagle tract; was at the sheriff’s sale.</p> <p>has for many years been engaged with water powers; has known this shoal before and since this suit; the whole shoal is tolerable regular on the Gaston side where the Neagle land is, and is about 500 yards long the lower half being more steep than the upper; ascending from the present dam and about 160 yards above it, a fall of about twenty horse power may be had; 100 yards above the dam, about twenty-five.or thirty horse power, with three feet head; fifty yards above the dam is forty horse power; mill sites can be had at all these points along the shoal which have been spoken of, to run a grist and saw mill; twenty-five or thirty horse power is necessary ; at the Rock Island mills on this shoal, on the Mecklenburg side, there is a fifty horse power with four and a half feet fall; two-thirds of the river is on the Neagle side in Gaston, the island in the river so dividing the current; most of the fall is from 160 yards above the dam down to the rock and dam.</p> <p>On cross-examination "witness stated that his views is based on the supposition that the present dam must be taken away; the present dam would destroy all the water powers above spoken of, with the dam standing as at present could uot find any water above.</p> <p>Plaintiff asked the Court to instruct the jury that the facts proved by Eli Withers, and the indorsements upon the executions given in evidence, do not, in law, constitute a waiver of the sale made by the plaintiff.</p> <p>The defendant insisted:</p> <p>1st. That this action cannot be maintained, the remedy being a motion for a rule in the original suit.</p> <p>2d. That plaintiff having neither the right of property, nor possession, but simply a naked authority to sell, derived from a Court, cannot maintain this action.</p> <p>3d. That plaintiff not having paid to the plaintiff in the execution the amount sought to be recovered, cannot maintain this action.</p> <p>4th. The failure of the sheriff to make return of the alleged sale to the return term of the Court, and the subsequent issuing of alias and pluries venditioni exponas commanding the sale of the same property, and delivered to the present plaintiff as sheriff, was a legal waiver on the part of 'the plaintiff in the execution of any claim against the defendant for the purchase money.</p> <p>5th. The plaintiff having agreed before the sale that the defendant should have time to pay the amount of any bid he should make, avoided the sale as contrary to the policy of the law.</p> <p>6th. That if defendant made his bid under a mistaken belief, that the Neagle tract covered the strip of land lying between the Neagle tract and the river, and such mistake was induced by the representations of plaintiff, it would avoid the contract and defendant would not be required to pay his bid.</p> <p>The following issues were submitted to the jury :</p> <p>1. Did plaintiff falsely and knowingly mislead and deceive the defendant in the sale of the land mentioned in the pleadings ?</p> <p>2. Did defendant assume to pay the plaintiff the sum mentioned in the complaint as the price of the tract of land mentioned in said complaint ?</p> <p>3. Did the defendant bid for the property offered for sale under misapprehension on his part induced by the representation of the plaintiff, as to the extent of the land comprised in the name of the “ J. B. Neagle tract ?”</p> <p>4. Did plaintiff, or plaintiffs, in execution under which the property was offered for sale, waive the bid made by defendant ?</p> <p>Defendant’s counsel asked his Honor to charge the jury :</p> <p>1. That this action cannot be maintained — the remedy being a motion for a rule in the original suit.</p> <p>2. That plaintiff having neither the right of property, nor possesion, but simply a naked authority to sell derived from a Court, cannot maintain the action.</p> <p>8. That plaintiff not having paid to the plaintiff in the execution, the amount sought to be recovered, cannot maintain the action.</p> <p>4. The failure of the sheriff to make return of the alleged sale to the return term of the Court, and the subsequent issuing of alias and pluries executions, commanding the sale of the same property, and delivered to the present plaintiff as sheriff, was a legal waiver on the part of the plaintiff in tb e execution of any claim against defendant for the purchase money.</p> <p>5. The plaintiff having agreed before the sale that the defendant should have time to pay the amount of any bid he should make, avoided the sale as contrary to the policy of the law.</p> <p>6. That if defendant made his bid under a mistaken belief that the Neagle tract covered the strip of land lying between the Neagle tract and the river, and such mistake was induced by the representations of the plaintiff, it would avoid the contract, and defendant would not be required to pay his bid.</p> <p>Elis Honor charged the jury that the first issue is purely a matter of fact for the jury to determine from the evidence in the case. If you find that the plaintiff did faslely and knowingly mislead and deceive the defendant in the sale of the land, that puts an end to the case. If you do not so find then you must consider the second issue which is the first of defendant’s.</p> <p>Defendant’s first issue. This is also a question of fact for you to determine and say whether the defendant did assume to pay to plaintiff the sum mentioned in the complaint— $2,625 — as the price of the tract of land mentioned in said complaint.</p> <p>Second issue. You are to determine this issue upon the facts, governed by the principles of law laid down by the Court applicable to the facts therein contained. The first principle of law is that if one person has a better opportunity to know a certain fact than another, and makes a representation which the other accepts, is governed by and is injured, he is entitled to relief; therefore, you are to determine what knowledge each one had, or their opportunity of ascertaining the facts.</p> <p>In the second place, if two persons have the same opportunity of ascertaining the facts, although a misrepresentation may be made by one as a matter of opinion, or to enhance the price, then the other would not be entitled to relief.</p> <p>In the third place, if the person complaining of a misrepresentation, or misapprehension has a better opportunity to ascertain the facts than the person complained of, of course he is not entitled to relief.</p> <p>The acts of the plaintiff alleged in the instructions prayed does not amount to a waiver of plaintiff’s claim in the execution.</p> <p>The foregoing were given to the jury, and the following reserved: It is the opinion of the Court that there is no evidence that the plaintiffs in the execution did any act amounting to a waiver of their claim. Nor could the defendant take advantage of the “ avoidance ” mentioned in the fifth instruction asked by defendant’s counsel. It is also the opinion of the Court that the plaintiff could maintain his action as brought.</p> <p>The*'jury found all issues in favor of the plaintiff, judgment rendering motion and rule for new trial. Rule discharged. Appeal prayed and granted. Notice waived.</p> <p>I. That a motion in the original cause to compel defendant to comply with his bid was the proper remedy, and not an action by plaintiff to recover the amount thereof. Council v. Rivers, 65 N. C. Rep., 54; Mann v. Blount, Ibid., 100; Mason v. Miles, 63 N. C. Rep., 564.</p> <p>II. That a bidder or purchaser at a master’s sale in equity subjects himself to the jurisdiction of the Court, quod hoc, and can be compelled to perform his agreement specifically. Rogers v. Holt, Phil. Eq., 108; Harding v. Yarborough, 6 Jones Eq., 215; ex parte Yates, Ibid., 306; Blossom v. Railroad, 1 Wallace, 615.</p> <p>III. The fact that the sheriff failed to make a return upon the venditioni exponas and alias process issued to him in law was a waiver of the bid of defendant; and that his Honor erred in his charge in this respect. Grier v. Yontz, 5 Jones, 371.</p> <p>IV. That the sheriff’s duty required him to sell for cash, and consequently his agreement to give time for payment of the money was contrary to the policy of the law and void, for the reason that the law gave him no authority to do so. State v. Johnston, 1 Hay., 293. Whenever an officer transcends his authority, his act is void. Jones v. Gibson, Term Rep., 41. As to what constitutes public policy, see Story on Sales, sec. 489. A sheriff’s deed fairly executed at any time after the sale under execution relates back to the sale, and operates to pass title from that time. Dobson v. Murphy, 1 Dev.. & Bat.,-586.</p> <p>V. That the Judge below erred in excluding evidence that the sheriff adopted the action of the commissionners in attaching the strip of land along the river in front of the Neagle tract to it. 1st. The sheriff has the right in his discretion to sell land by the acre. Davis v. Abbot, 3 Ired., 137. 2d. It is the duty of the sheriff to sell land in such a way as to bring the most money. State v. Moon, 7 Ired., 387.</p> <p>VI. That the charge of the Judge (the second proposition) is erroneous in law, and the jury misled thereby. Bynum v. Bynum, 11 Ired., 632; Smith v. Sasser, 5 Jones, 388.</p> <p>insisted that this action cannot be maintained — the remedy being by motion or rule in the original cause. The Judge held that the plaintiff could maintain his action as brought.</p> <p>Tho action is one virtually for the specific performance of a contract, the sheriff being the vendor, and the defendant the purchaser. When the hammer is down, the contract is complete, and the parties mutually bound. Such is the law as to auction sales, and judicial sales are governed by the same rules of law. Blossom v. Railroad, 1 Wallace, 655; Ibid, 206. The case decide that a bidder at a judicial sale becomes a party in the cause with rights which the Court will protect if necessary; and will summarily compel him to execute his part of the contract, being a party to the cause. He cannot ask relief in another suit.</p> <p>As to judicial sales, a bill for specific performance will not lio,.a motion in the cause affording the most appropriate remedy. Patrick v. Carr, 1 Winst. Ecp, 89; Mason v. Osgood, 64 N. C. Rep., 468 ; Mason v. Miles, 63 N. C. Rep., 564; Rogers v. Holt; Phil. Eq., 108 ; Mann v. Blount, 65 N. C. Rep., 99 ; ex parte Yates, 3 Jones Eq., 215.</p> <p>An action to recover the amount of a bond given by defendant to the clerk and master for the purchase of a tract of land sold by him, was held not the proper remedy, as a motion in the cause afforded the proper relief.</p> <p>2. The plaintiff having neither the right of property nor possession, but simply a naked authority to sell, derived from a Court, cannot maintain this action, showing no order or direction from the Court to sue. Barden v. McKenzie, 4 Hawks, 277 ; Hill v. Child, 3 Dev. 265; Love v. Gates, 2 Ired. 14. As to lands, the sheriff has not even a special property in the lands. An auctioneer having a special property may sue. The sheriff is but an officer of the Court acting under its mandate, and must report to the Court, if any special matter shall arise; and like a receiver or other authorized agent of the Court, must receive permission or authority before he can sue. If he has a right to sue of his own will, he may disappoint the wishes of the judgment creditor, and prevent a resale if that were deemed most advisable. He may, as in the present ease, go out of office before the trial, and afterwards receive the money and release his bondsmen, or, he may die and his executors or administrators receive the money. Quere: Would they be officers of the Court, and subject to its summary orders ?</p> <p>3. Plaintiff can only maintain this action on the ground that he has either paid the money or is bound for it; or that he is liable to pay it, for that he has been guilty of some dereliction of duty which subjects him to its payment. In, either case the defendant is not liable. ■</p> <p>What amount would the plaintiff in execution recover from the sheriff under facts of this case ? He may not be able to coerce the defendant to pay him the amount of.' his bid; and the land has been uninjured and maybe worth as much or more now than on the day of sale. State v. Skinner, 5 Ired. 411.</p> <p>4. The issuing of subsequent venditioni exponas was “a waiver of the right to call u¡Don the defendant for specific performance. The facts on this point amount to an actual reséission of the sale by both parties. It is made the special duty of all clerks of Court, under a penalty, to issue executions and aliases within six weeks, unless otherwise directed by the plaintiff in the judgment. Rev. Code, ch. 45, sec. 29. InUiis case the sheriff concluded to make no return of the sale for the express purpose of having an alias to issue-under which to resell the land as Rumfelt’s property, and hlod the defendant liable for any loss. Grier v. Yontz, 5 Ired. 371.</p> <p>The present case is not the first in this State. The orderly-mode of proceeding when a purchaser refuses to make good. his bid, is clearly and distinctly prescribed in the decisions of this Court: 1st, to make him pay the money, or 2d, to* rescind the sale in toto; or 3d,’ which is the middle course,, to order a resale, with the distinct assent of the bidder that,, he will make good any loss that may occur by a resale.. This is the course pursued upon the return, made to theOourt and. is upon motion of the party. Ex parte Yates, 6 Jones Eq. 212 and 306; Harding v. Yarborough, Ibid, in aróte; and Clayton v. Glover, 3 Jones, Eq. 371.</p> <p>Although the course and remedy are so distinctly announced by this Court and so just to all parties, this plaintiff has chosen to pursue a strategic course of his own con•eeption. He sues the bidder as the owner of tAe property, -•and at the same time sues out of venditioni exponías to sell \the property as Rumfelt’s. Pie seeks his own safety in an {'illegal and inadmissible alternative. Such inconsistency •of claims are not to be tolerated in a Court of Equity.</p> <p>5. Defendant insists that a sale upon credit given to defendant by agreement made before the sale was void. 'The law of execution simply speaks of sales. Rev. Code chap. 45. But that term, vi et termini in law implies sales 'for cash; not even notes or bills of exchange can be sub■stituted, unless so specially directed in the judgment or •decree. By sec. 18, all sales made contrary to the true intent and meaning of that chapter subjects the officer to a •penalty.</p> <p>No action will be sustained in affirmance and enforcement of an executory contract to do an immoral act, or one -.against the policy of the law; the due course of justice or the prohibition of a penal statute. Sharpe v. Farmer, 4 Dev. & Bat., 121; Beusley v. Bignold, 5 B. & A., 335, (7 E. C. L., 121.) fit is the policy of the law that all bidders shall stand upon ■■•an even footing at judicial sales.</p> <p>6. That if defendant made his bid under a mistaken belief '.induced by the representations of the plaintiff, it would avoid the contract, and defendant would not be required to ;pay his bid. The Court in substance, charged the jury that Jf the defendant had as good or better opportunity than plaintiff to know whether the mill site and water power were a part of the Neagle tract, in fact, the misrepresentation of plaintiff would not entitle defendant to relief. The mill site and water power had been a part of another tract of land, lying on a small and narrow strip between the lower end of the Neagle tract and- the river. It was in the-sheriff’s power, and it was his duty to have annexed it to theNeagle tract. He advertised that the mill site and waterpower were a part of the Neagle tract, and it appeared in fact to be so. No one could know better than the sheriff.'" whether he had annexed, or intended to sell it with theNeagle land, and no reference to persons, deeds and Register’s books or surveyors, could have given any one the same-knowledge that the sheriff possessed. In Might v. Booth, 1. Bing. N. C., 380, (17 E. C. L., 424,) the Court say; “ In this state of discrepancy between the decided cases we think, it a safe rule to adopt that where- the misdescription, although not proceeding from fraud, is a material and substantial point, so far affecting the subject matter of the contract, that it may reasonably be supposed that but for such misdescription,'the purchaser might never have entered into the contract at all; in such case the contract is avoided!, altogether, and the purchaser is not bound to resort to the clause of compensation. Under such a state of facts the purchase may be considered as not having purchased the; thing, which was really the subject of the sale. Stamper y„ Hawkins, 6 Ired. Eq., 7; Pugh v. Brittain, 2 Dev. Eq. 34 - Good v. Hawkins, Ibid., 393; Newsom, v. Buffalow, 1 Dev. 39„, 379.</p> <p>In the sale of real property at auction care should hag-taken that the description of it be accurate, or the purchaaeswill not be held to a performance of the contract. 2 Kent; Com. 537. “ Admitting that a purchaser might by minasteexamination make that discovery (of the material deficiency) he was not driven to that examination, the other 'party having undertaken to make a representation. Xfcps* v. Hargrave, 10 Vesey 509.</p> <p>The sheriff having advertised the property as he diS 5m the newspaper for the purpose of inviting bidders to the sale of the property so advertised, should have made a cor.rection of the description thus publicly given, and removed any false impression it had made. His real acquaintance with the property had nothing to do with the case; “whether a party misrepresenting a [fact knew it to he false, or made it without knowing it were true or false is wholly immate.rial,” &c. 1 Story’s Eq., par. 193, and cases cited.</p> <p>The action is properly brought. Tate v. Greenlee, 4 Dev. Law 149, is a precedent directly in point, and it is cited and ■approved in Grier v. Yontz, 5 Jones 371.</p> <p>The authorities cited by defendant to show that a motion in the cause was the proper remedy are all equity cases, where all the parties are before the Court and are making their own sale; but this is a sale in invitio, under process. See distinction taken in Smith v. Brittain, 3 Ired. Eq. 351. In Council v. Rivers, G5 N. C. Rep._54, the Court says, “ the remedy by order in the canse is a principle of equity.”</p> <p>The question of waiver is not raised by the pleadings, and it was error in the Court to submit to the jury. Heileg v. Stokes, 63 N. C. Rep. 612 ; Rowland v. Thompson, 64 N. C. Hep. 716; O. C. P., secs. 100 and 219. The error in the Court below in submitting irrevelant issues can only be taken advantage of after trial by appeal. Plaintiff may move now to strike them out. School Committee v. Kesler, 66 N. C. Rep. 323.</p> <p>Credit given by sheriff does not invalidate the sale. See Tate v. Greenlee, supra. But this defense v/as not set up in the answer or by demurrer, and cannot be taken advantage of under sec. 99 C. C. P.; because it does not appear on the face of the complaint. The charge on the question of misrepresentation is fully sustained by Walsh v. Hall, 66 N. C. Rep. 233 ; Lytle v. Bird, 3 Jones 223.</p> <p>The question of evidence raised is clearly untenable, because the appraisers liad no right to annex the strip of land to another tract to enhance its value. Hana, the surveyor for the appraisers expressly swears that he did not attach the strip of land to the Neagle tract.</p>

Civil action, (entitled in the record, a special proceeding,) determined by Russell, J., at the Fall Term, 1872, of Bladen Superior Court. The plaintiffs issued their summons against the defendants,.dated the 20th day of April, 1872, commanding them to appear before the Judge of Probate on the 13th of May, 1872, and answer the complaint, &c. The summons was .served on the 1st day of May, 1872.

Civil action for title and possession of a tract of land, tried before Buxton, J., at the Spring Term, 1873, of the Superior Court of Richmond county. One of the defendants, Archibald McLaurin, having left the premises sued for before the trial, the suit as to him was discontinued. The other defendant, Margaret Sinclair, claiming an interest in the land, was admitted as defendant upon filing the proper affidavit.

Civil action tried before Watts, J., at the Spring Term,. 1873, of the Superior Court of Perquimans county. I. The complaint alleges that in 1839 one Peter Parker died seized of a tract of land in Perquimans. county containing about 325 acres, and leaving a widow, Elizabeth B.,. and one child, the feme plaintiff, Anna F. II.

Indictment for manslaughter, tried before Towrgee, J., at the Spring Term, 1873, of Caswell Superior Court. The evidenee was that the prisoner and the deceased, both colored, were at a social gathering on the evening of -day of-, 187-, where there was music and dancing.

Indictment for murder, tried before Logan, J., at Spring Term, 1873, of the Superior Court of Mecklenburg county. Prisoners were indicted! for the murder of one Robert-Smith, and having severed in their trial, Charles Moore was; tried and convicted. It was contended for the prisoner that the crime committed was manslaughter.

Controversy, which might be the subject of a civil action, submitted without action to Clarke, J., at Wayne Superior Court, 11th day of February, 1873, upon the following case agreed: In the year 1869, one Sarah Davis, of Wayne county, died, leaving a last will and testament, as follows: “STATE OF NORTH CAROLINA, Wayne County. “ I, Sarah Davis, of said county, do, this 11th day of December, 1868, make-and declare this to be my .last will and ..testament, in manner and form…

Civil action, tried before Clarke, J., at Spring Term, 1873, of the Superior Court of Wayne county, upon the following facts, constituting the “ case stated ” and sent to this Court. This action is brought by the plaintiffs, who are cestui que trusts against the defendant, Dortch, the trustee in a certain deed of trust made b3r the other defendant, Geo.

Civil action, tried before Mitchell, J., at the Spring Term, 1878, of the Superior Court for Caldwell county.

Civil action for the recovery of 900 acres of land, tried at the January (Special) Term, 1873, of Halifax Superior Court, before his Honor, Cloud, J., upon the facts contained in the following case agreed: “The sheriff of Halifax, under executions duly issued on sundry judgments against the defendant, B. W. Cotton, on the 6th,March, A. D., 1869, after due levy and advertisement, (levy made subsequent to the adoption of the Constitution,) proceeded to sell at the Court House…

Civil action for the recovery of real property, tried before Buxton, J., at Spring Term, 1873, of Union Superior Court. The action was originally brought by one Tilmon Green, to Fall Term, 1869. He having died, the present plaintiffs, B. A. and J. B. Green, devisees under his will, come into' Court, and make themselves parties plaintiff.

Petition to the Board of Commissioners of Cumberland county to reform the tax lists, heard by Burton, J., at Chambers, June, 1873, in the town of Fayetteville, upon the following CASE AGREED: I. On the-day of April, 1873, the plaintiff in giving in his list of taxables to the list-takers for Cross Creek Township, in said county, was required by them to list his ¡money on hand the 1st day of April, 1873, and also his solvent credits, being debts due and owing to the plaintiff.

Civil action and motion for an injunction, heard before Russell, J., at the Spring Term, 1873, of the Superior Court of Robeson county.

<p>In an indictment for forgery, if it appears tlaat the instrument is kept out of the possession and knowledge of the jury by the action of the prisoner himself, the act is equivalent to the destruction of the instrument. And such destruction is sufficiently alleged, under the circumstances, when it is charged in the indictment that the prisoner has “ disposed of” the instrument.</p> <p>Indictment for forging a bond or other instrument, is sustained by proof of the forgery of the name of one of the obligors in the bond.</p> <p>After declaring himself ready for trial, a prisoner cannot object for want of time in which to produce a paper alleged to be in his possession, having had two days notice to produce it.</p> <p>(State v. Garret, 1 Ired. 27, cited and approved.)</p>

Civil action tried before Henry, J., at Spring Term, 1873, of Henderson Superior Court. The plaintiff claims a tract of land upon which defendants reside and also claim to hold as trustee for certain children. On the trial below, the defendants filed an affidavit, in which they severally swore that they were unable to give the bond required by law, before they would be allowed to defend the suit.

Civil action, commenced in Jackson county and removed to Haywood county, upon affidavit, where it was tried by Cannon, J., at Fall Term, 1872. Plis Honor states, that the counsel in the case being unable to agree upon the facts evolved, he adopts the following and transmits it as the “ case stated :” “ The action is in the nature of the old action of assumpsit; the allegations of the complaint are denied by the answer, which also contains allegations of new matter.

Civil action, tried before Albertson, J., at Spring Term, 1873, of Wake Superior Court. In the complaint it is alleged, 1. That the plaintiff is a corporation, by virtue of an Act of our General Assembly, with its principal office in Raleigh, and its business is to buy and sell land, and to sell land for others upon commission. 2.

Civil action, tried at Spring Term, 1873, of the Superior Court of Guilford county, before his Honor, Tourgee, J. Plaintiff declared on a bond for $998.98^ given by defendant to plaintiff's testator, on 25th January, 1858, due 1st March, 1858.

Civil action to recover a tract of seventy acres of land and damages, tried before Logan J., at Spring Term, 1873, of Gaston Superior Court. The following is the case “ settled ” and transmitted to this Court: Plaintiffs claimed the land as purchasers under the proceedings in an attachment which was in evidence against one G. O. Rhyne, under whom defendant also claimed.

Civil action on an Administrator’s bond, tried at the January (Special) Term, 1873, of Pitt Superior Court by his Honor, Clarke, J. The defendant, Smith, was the administrator of one Asa Stocks, and the other defendants were sureties on his official bond.

Exception to the report óf a commissioner, stating.! an account,heard andffeterminéd by Albertson, J., at the Spring Term) 1873/of Wake Superior Court. •The‘plaintiff as.'administratór. of - one… Held: I. That the first exception of plaintiff to the report above set out, be and the same is sustained, and the defendant is to be charged with the value of the cotton sold, and interest as of the day of sale, the value to be ascertained according to the scale. II.

Indictment, arson, tried before Clarice, J., at the Spring Term, 1863, of the Superior Court of Wayne county. The defendant, with two others not taken,, was charged -with the burning of the dwelling house of one Mirand Wise .on the night of the 11th of February, 1871.

Petition for a reeordari heard at the Spring Term, 1873, of Gaston Superior Court, before Logan, J. In his petition the plaintiff, as executor oPS.

<p>Civil action, to charge defendant as executrix de son tort, tried before Buxton, J., at the January (Special) Term, 1873, of the Superior Court of Robeson county.</p> <p>The following is the case settled by his Honor, Judge Buxton, and sent to this Court as a part of the transcript of the record.</p> <p>“The defendant, Nancy King, was first the widow of Charles Ivey, who died 27th January, 1866. With her consentj letters of administration on the estate of Charles Ivey, was granted to Reuben King at the February Sessions 1866, of the County Court of Robeson county. In 1867, May 31st, the defendant, Nancy, intermarried with the said King, who died before the commencement of this suit, August, 1869, leaving a will and a large estate.</p> <p>This present action was instituted by plaintiff to recover from the defendant as executrix de son-tort of her former husband, Charles Ivey, the payment of certain notes, set out in-detail in his complaint, alleged to be due the plaintiff’s testator from said Ivey on the ground that the defendant had misapplied to her own use a quantity of cotton and bacon belonging to the estate of Charles Ivey, her. late husband.</p> <p>Upon the trial the defendant objected to the sufficiency of the complaint, because it did not specify the quantity of cotton and bacon alleged to have been converted. The Court sustained the objection, but permitted' the plaintiff to amend his complaint by inserting: “ Eighteen four hundred lbs. bales of cotton and 2,000 lbs. of bacon;” the complaint as originally drawn was verified by affidavit, but was not re-sworn to after the amendment. Defendant excepted.</p> <p>This amendment to the complaint having been made, the-plaintiff took the ground that the answer ought to be responsive to the amended portion of the complaint, or else that the allegation should be taken to be true. The Court concurred in the position, whereupon defendant asked and obtained leave to amend her answer, which was done by inserting the statement in reference to 16 bales of cotton and 1500 lbs. bacon.</p> <p>On the part of the plaintiff, it was in evidence that all the notes mentioned in the complaint, except one for $80, (which was subsequently withdrawn by plaintiff) were due and owing by the estate of Charles Ivey t© the testator of the plaintiff. It was further proved that at the time of his death Ivey was in possession of 16 bales of cotton, a large quantity of bacon, a large number of hogs and other personal property.</p> <p>The plaintiff further proved by one Branch, the former overseer of Ivey, that some three weeks after Ivey’s death, the witness took possession secretly of 12 bales of cotton and 42 large sides of bacon, which were disposed of under her directions — the cotton being carried off by night to market and sold, partly at Fayetteville and partly at Riverside ; that in the trip to Fayetteville he was accompanied by Dr. Normeijt, under whose instruction the defendant directed him to act. This witness also testified that by direction of the defendant, after her husband’s death, he secreted in the woods a mile from the house, a lot of 40 hogs belonging to the estate, to prevent them from being sold for the benefit of the estate, and that they were not sold, but were killed for defendant; that he was also directed to secure all the valuable tools and not have them sold. This, he, the witness did, and the tools were not sold. For the plaintiff it was also proved by Mrs. Branch, wife of the preceding witness, that shortly after the sale of the cotton in Fayetteville, the defendant exhibited to her a bag which she, the defendant, told her contained the cotton money.</p> <p>Mrs. Branch also testified that the defendant had corn, lard, pork and crockery conveyed off and secreted, to prevent these articles from being sold for the benefit of the estate of her husband, Charles Ivey; this was after his, Ivey’s death. It was also in evidence, that at the time of the sales spoken of, cotton was worth 20 cents per lb. in silver, and bacon 20 cents in greenbacks.</p> <p>In answer, the defendant proved by Dr. Norment that her husband, Charles Ivey, and John Ivey, his son, both died of small-pox in January, 1866, on the plantation, within a few days of each other; that the witness was the attending physician, and that it was difficult to provide nurses or .other attendants or medical care at the time; that his whole time for 30 days was occupied by these two cases of smallpox, and that the county was in a greatly unsettled and disturbed condition owing to the prevalence of the disease. The witness further testified that fearing to lose his bill, amounting to $1500, and as the only means of securing it after the death of the Iveys, he went to the house of the defendant in the night time, and without her knowledge or consent, expressed or implied, and with the aid of the overseer, he took 8 bales belonging to the estate, and 4 bales pointed out to him by the overseer as belonging to the estate of John Ivey upon whose effects he, the witness, afterwards became administrator and sold them and applied the proceeds to the payment of his medical bill, which was larger than the amount of sales; that afterwards, upon its becoming known to him that Mrs. Ivey was in need he loaned her $150 of the money arising from the sale of John Ivey’s cotton, she promising to return it when called for; that the money he let her have was silver, and that she never got a cent of the proceeds of the eight bales of her husband’s cotton, and that at the sale made by Reuben King, administrator of Charles Ivey, he, the witness, bought four other bales of cotton, for which he gave his note.</p> <p>For the defendant, was further read in evidence the record of proceedings in the County Court of Robeson, instituted by defendant as widow of Charles Ivey to obtain a year’s allowance, whereby it appeared that at November Term, 1866, the report of the commissioners were confimed. By this report there were set apart for her use certain articles, which not being on hand the deficiency was assessed in money as prescribed by law, and which amounted to $146.50. The account of sales of Reuben King as administrator of Charles Ivey was also read in evidence, by which it appeared that 23 hogs, a number of pigs and a quantity of corn were there, March 1866, sold, of which the widow purchased 8 of the hogs, a lot of the pigs and 20 bushels of corn.</p> <p>The evidence being closed, one of the defendant’s counsel in his address to the jury called attention to the 118 chap., sec. 17 Revised Code, which allows the widow of an intestate to use so much of the crop, stock and provisions on hand, as may bé absolutely necessary for the support of herself and family, until grant of letters of administration, and he, the counsel insisted that the complaint made no reference to this right of the widow, and contained no averment, that she had transcended this right. In reply the plaintiff’s counsel insisted that the complaint did in effect make that averment, as it charged that the widow, had appropriated to her own use eighteen four hundred pound bales of cotton, and 2000 lbs. of bacon that should have been sold by his administrator and held as assets for the payment of his honest debts. In the view presented by the counsel of the defendant, his Honor concurred, and held that the complaint shold state explicitly that the defendant had appropriated to her own use over and above what was necessary for the support of herself and family until grant of administration, and directed the complaint to be amended by inserting the required averment. Complaint thus amended was not re-sworn to. Defendant excepted. Defendant’s counsel then asked in writing this special instruction. “ That the testimoney to charge the defendant as executrix de son tort, must be sufficient to warrant a conviction of felony, viz: taking, stealing and carrying away the personal property of the deceased, had it been done by any other person not under her direction.” Deeming it erroneous, his Honor omitted to notice the instruction in his charge to the jury. He instructed the jury that in order to charge the defendant as executrix de son tort, of Charles Ivey, the appropriation by her of cotton and bacon belonging to his estate, must have been of more than was necessary for the support of herself and family from the time of his death until administration was granted on his estate, and such appropriation • must have been fraudulent, done with the intent to defraud the creditors of Ivey. Defendant excepted.</p> <p>His Honor handed the jury three issues in writing to which they were to respond, to*wit:</p> <p>1. Are the notes read in evidence due the plaintiff?</p> <p>2. Did the defendant, with intent of defrauding the creditors of Charles Ivey, fraudulently appropriate to her own use, 18 bales of cotton and 2,000 lbs. bacon, or any part thereof, being cotton and bacon more than was necessary for the support of herself and family from the time of his death, 27th January, 1866, until administration was granted on his estate at February Term, 1866, (4th Monday in February, 1866)?</p> <p>3. If so, what was the quantity and value of the cotton and bacon, thus fraudulently appropriated ?</p> <p>In regard to these issues the Court instructed the jury that if they found the first or second against the plaintiff, they need enquire no further, but if they found them both in favor of the plaintff, they should then proceed to respond to the third interrogatory.</p> <p>In rendering their verdict, the jury returned a written answer to the first and third issues; to the first, they found that the “notes were just;” to the third,they answered;” 12 bales of cotton, 4860 lbs. @ 20 cents gold, $680; 47 sides of bacon, 840 lbs. @ 20 cents currency, $168.</p> <p>To the second issue, no] answed was appended, his Honor inquired of the jury “how they found the second issue? The jury answered “in favor of the plaintiff.” Thereupon his Honer directed their answer to the second interrogatory to be entered in the affirmative. .Defendant excepted.”</p> <p>Upon the foregoing finding of the jury, the Court directed a reference to the clerk to state the amount due upon the notes, allowing the legislative scale of depreciation, and for the amount, to enter judgment in favor of plaintiff and for costs.</p> <p>From this judgment, defendant appealed.</p> <p>The acts complained of were committed by the defendant. before letters of administration were granted. Subsequently King qualified as administrator; about twelve months thereafter King, the administrator, married the defendant; after King’s death the action was commenced against defendant to charge her as executor de son tort of Ivey.</p> <p>The distinction made by the case seems to be this: that-when the acts relied on to charge one as executor de son tort were committed before the appointment of administrator or qualification of an executor, then the creditor may maintain his action, though there be at the time of commencement of action a rightful administrator or executor; but if the acts are committed after appointment of administrator or qualification of executor an action will not lie by creditor. Mc-Monie v. Strong, Dev. & Bat., 87; 2 Wheaton Selwyn, 787.</p> <p>Executor de son tort may give in evidence that he has delivered assets to rightful executor before suit brought — no defence if delivered after suit brought. 1 Wms. Executor, 232; 1 Salk. 313 ; Padget v. Priest, 2 Term Rep., 100; Curtis v. Vernon, 3 Term Rep., 590; 2 H. Blackstone, 18.</p> <p>How could this defense arise unless suit could be maintained after the appointment of administrator ?</p> <p>May join executor de son tort with rightful executor. 1 Wms. Executor, 232.</p> <p>2. But after acts committed and before suit brought the-defendant married administrator, and King, therefore, became liable for her debts.</p> <p>But the suit was not brought until after the death of King, and though the effect of the marriage was to make King liable, it did not relieve her, and upon his death the suit may be maintained against Nancy King, the defendant. McQueen on Husband and Wife, 59 vol. Law Lib. marginal pages 39 and 40, and page 193.</p> <p>3. It is insisted that by the marriage the assets of the estate of Ivey which had been appropriated by defendant, passed by operation of law, into the possession of the rightful administrator and therefore defendant is discharged from liability.</p> <p>It is true that the delivery of assets before suit was brought by executor de son tort to rightful administrator, is a defense to the action; but this cannot be presumed; the burden of proof is upon the defendant.</p> <p>The evidence shows that these goods — corn and bacon— ■were taken off in the night time and sold. Is there any ■evidence that the proceeds of sale were in the hands of defendant at the time of marriage ?</p> <p>The evidence is the other way. Dr. Norment, witness for defendant proves that the widow was in such a destitute condition before marriage with King that he loaned her $150.</p>

Indictment for perjury tried before Tourgee, J., at the Spring Term, 1873, of the Superior Court of Randolph county. Held: “ that proofs that the defendant was sworn and examined as a witness, supports an averment, that he was sworn on the holy gospels, that being the ordinary mode of swearing in England.” See also Rex v. McCariher, Peake’s C. 155. II. The ordinary mode of swearing in this State is upon the holy gospels. Rev. Code, chap. 76, sec. 1.

Civil action, tried before Tourgee, J., at Spring Term, 1873, of the Superior Court of Alamance county. The facts pertinent to the points decided in this case, with the exceptions and objections' taken upon the trial in the Court below, are fully set out in the opinion of this Court. Upon the issues submitted to them, the jury found a verdict for the plaintiff. From the judgment rendered in .accordance with the verdict, the defendants appealed.

Indictment for keeping a disorderly house, tried before Russell, J., at the January Term, 1873, of New Hanover Superior Court. The defendants were charged with keeping a disorderly house by indictment, drawn in [accordance with precedents in Chitty’s Crim. Law, and in the Court below were found guilty.

Petition filed by plaintiff at January Term, 1873, to rehear a judgment rendered in this Court at the June Term previous. Case reported in 67 N. C. Rep., page 38. The plaintiff stating the facts as they are reported in the case at June Term, 1872, and in the opinion now delivered, prays that the Court will correct the error, by which the defendant recovered costs against the plaintiff.

Civil action for the delivery of personal property, tried before Watts, J., at the Spring Term, 1863, of Chowan Superior Court. On the 10th May, 1871, certain executions issued against the plaintiff from Chowan Superior Court, on debts contracted since the adoption of the Constitution in 1868.

Motion to set aside a judgment, heard before Mitcllell, Jr., at the Spring Term, 1873, of Iredell Superior Court. The plaintiff on the 27th day of January, 1873, gave the-the defendants notice that he should move at the next ternr to set aside a judgment theretofore rendered against him,, and re-instate the suit on the docket.

Bastardy, tried upon issues, at Fall Term, 1872, of Lenoir Superior Court, before Clarke, J. The case, as settled by counsel, states that in his charge, to the jury, “ his Honor went on to say that they need not inquire whether the defendant, Broadway, was able to get a child or not, for the son of the defendant was a witness and present in Court, by acknowledging whom, as his own, defendant admitted his ability to get a child, to which defendant excepted.

Civil action, tried by Buxton, J., at Spring Term, 1873, of the Superior Court for Cumberland county. The suit was brought to the Spring Term, 1873, of the Court of Cumberland county, at which term the plaintiff, a. resident of that county, filed his complaint, seeking the. recovery of a bond given by the chairman of the late Court of Pleas and Quarter Sessions of Bladen county, in December,. 1864, for $16,000.

Original bill, under the old practice, transfered to the Superior Court of Northampton county, and heard by his Honor, Cloud, J., at January (Special) Term, 1873.

Indictment, for burning a grist mill, tried at Spring Term, 1873, of Wake Superior Court, before Albertson, J. The defendant was arraigned upon the following indictment, to wit: “STATE OP NORTH CAROLINA, “Wake County, “ In the Superior Court — Fall Term, 1872. “ The jurors for the State, upon their oath, present that Benjamin King, late of the county of Wake, on the first day .of May, in the year of our Lord one thousand eight hundred and sixty-three, with force and 'arms at…

, at the Spring Term, 1873, of Craven Superior Court. Defendant was sheriff of Craven county, and received on the 4th day of March, 1873, an. execution in favor of the plaintiff, against one William Foy,. returnable to the Spring Term, 1873, of the Superior Court, which commenced on the 24th day of March, 1873.

Civil action, tried by his Honor, Cloud, J., at Chambers, November 20th, 1872, at the Superior Court of Rowan county. Plaintiff brought his action in a Justice’s Court, for the recovery of $35, due for work and labor done. The defense was, that there was a written contract con-concerning the work, the terms of which had been complied with by defendant, he insisting that such fact excluded the introduction of parol evidence.

Civil action, tried before Logan, J., at the Spring Term, 1873, of the Superior Court of Mecklenburg county. Plaintiff’s intestate, J. H. Davis, was guardian of one N. J. Lee, and during the minority of his said ward certain lands were sold by order of the Court of Equity of Mecklenburg county, and the proceeds of sale was paid into the office of the clerk and master of that Court.

Civil action tried at the January (special) Term of the Superior Court of the county of Robeson, before his Honor, Buxton, J. The plaintiffs, who are children and heirs-at-law of Hardy Barnes, deceased, brought this action against the defendants, the children and heirs-at-law of Reuben King, deceased, to Fall Term, 1871, to compel the said defendants to convey to them the legal title to two lots, Nos. 95 and 96, in the town •of Lumberton, of which the plaintiffs alleged they…

Civil action, on a constable’s bond, tried at the July (special) Term, 1872, of Halifax Superior Court, before Moore, J. The action is brought upon the bond of one Junius H. Morris, constable, against the defendant, one of the sureties thereto, (the said constable being dead). In his complaint, the relators alleged two breaches of the condition of the said bond,, to-wit: 1.

Civil action, tried before Clarke, J., at June Term, 1873, of the Superior Court of Carteret county, upon the facts contained in the following case agreed : On the 2d February, 1858, the defendant, A. W. Gaskill, being indebted to one David W. Whitehurst in the sum of $350, executed a mortgage of certain land to secure the payment of said debt, five years after date, at which time the mortgage was to become absolute. The mortgage was registered the 19th of February, 1859.

<p>The jurisdiction of a Justice of the Peace when necessary to be proven, being a question of law, cannot be proved by witnesses (if properly objected to), but must be determined by the Court.</p> <p>A party objecting to the introduction of evidence must state with certainty the points excepted to; and if the ground stated for such objection be untenable, it is error to reject the evidence, though inadmissible if properly objected to.</p> <p>(Stout v. Woody, 63 N. C. Rep. 37, cited and approved.)</p>

<p>. An action for the recovery of the possession of personal property, (in the nature of detinue under our old system,)-will not lie against one who was not in possession of the property at the time the action was commenced.</p> <p>Nor can a plaintiff in such action, under a general prayer for “ other relief,” recover t,he judgment warranted by the facts proven. For althongh the names and technical forms of actions are abolished by the Constitution, yet ip the Very nature of things, there must be distinctions in respect to the remedies applicable to different cases. ,</p> <p>(Lea v. Pearce, 68 N. C. Rep. 78, cited and approved.)</p>

Civil action, tried before Tourgee, J., at the December (Special) Term, 1872, of the Superior Court of Wayne county. The summons in this case was issued by Z. L. Thompson, the then plaintiff, in September, 1870, who in his complaint alleged that the defendant held and had held a tract of land in .trust for him ever'since May, 1868, and demanded an acebünt for rents* &c., and also a conveyance of the land.

<p>•Granting a new ;trial because of newly discovered evidence must necessarily always, or nearly always, be within the discretion of the presiding Judge, and his decision can very rarely in such cases, he on a naked matter of law or legal inference, so as to authorize an appeal.</p> <p>In an action for claim and delivery of personal property (Replevin, Rev. Code, chap. 98), when the property cannot be redelivered by plaintiff in specie, the value thereof, in case of a judgment for defendant, should be assessed at the time of the trial, and not at tlie_time of its seizure by the sheriff.</p> <p>(Scott v. Elliott, 63 N. C. Rep. 215, cited and commentednn.)</p>

<p>Civil action, tried at the Spring Term, 1873, of the Superior Court of Moore county, before his Honor, Buxton. J.</p> <p>Summons in this case, issued 1st August, 1871.</p> <p>Plaintiff, as guardian for his children, had obtained a a judgment at the October Term, 1859, of the Court of Pleas and Quarter Sessions of Moore county, against the present defendant, Jackson, as administrator of one Shields, for the sum of §318.72. Shields was the grandfather of the wards of the plaintiff, and the judgment recovered was for the amount of their distributive shares in their grandfather’s, estate. The present action was brought to enforce this, judgment against the defendant personally;</p> <p>The defence insisted upon is,, that the judgment was paid, and satisfied in full before the commencement of this action. And in support of such, his defence, the defendant produced, in evidence sundry vouchers for small items of account, connected with the estate of the said Shields, for which he. claimed that the wards were properly chargable. No objection, the plaintiff allowing defendant’s claim: in this respect to the full amount, to wit: $26.84. Defendant then produced as evidence a receipt of A. H. McNeill, clerk of the County Court of Moore county, when such Court existed, dated 28th February, 1863, for $325.61, balance due upon the judgment, and insisted' that the whole judgment was. thus shown have been paid off and satisfied. The effect of this receipt is the point raised below, and the principal one. decided in this Court.</p> <p>The following are the facte as proved •:</p> <p>After the judgment was obtained, no execution was ever ordered or issued. Some short time before the commencement of the late war, the plaintiff asked the defendant for money; defendant offered to pay a part, saying that he did not have at the time money enough to pay the whole; amount; this partial payment the plaintiff declined to receive. Thus the matter stood, nothing further being done or. said by the parties until the 28th February, 1863, when the defendant, in a settlement with McNeill, the clerk, having in possession Confederate money derived from the. estate of Shields, his intestate, paid the same into the office of said clerk upon this judgment, obtained by the plaintiff as before stated, to the amount of $325.61, and took the clerk’s, McNeill’s, receipt for the same, which is here offered as evidence. This sum, $325.61, together with the amount of the vouchers allowed, made the amount of the principal •■and interest of the judgment at the date of the receipt. Defendant at the same time paid the costs of said judgment.</p> <p>This payment into office was made without the consent ■or knowledge of the plaintiff; who, when informed of it by the clerk directly thereafter, and when urged by the clerk to take the money, refused to do so, assigning as a reason that it was too pale in the face.” And afterwards, when told by the clerk that unless something was done the money would be lost, he, the plaintiff, informed the clerk that he might fund it or do what he pleased with it, that he himself .never would take it. This refusal of the plaintiff to receive the money was communicated to the defendant by the clerk .-.shortly after it occurred, and was the first intimation that the defendant had of the plaintiff’s objection to receive Confederate money. Defendant had not been asked for the money after the war commenced, and being advised that the payment to the clerk was a good and an effectual payment, he declined to withdraw the money from the clerk’s ■office. The clerk, to keep it alive as long as possible, funded the sum paid by defendant in the “ new issue,” which died on his hands.</p> <p>The wards of the plaintiff, who are his own children, have long since arrived at full age, but on account of this unsettled matter with defendant, the plaintiff has been unable to -settle with them.</p> <p>It was also in evidence that in the year 1863, especially in the earlier part of that year, Confederate money was generally received in payment of debts, new and old, although some persons refused to receive it.</p> <p>Defendant objected to the plaintiff’s recovery in this action, because of an alleged fatal variance, to wit: The first judgment — the foundation of the present action — was rendered .against the defendant as administrator of Cornelius Shields;. this action is brought against him in his individual capacity. Upon this point his Honor held, that the original judgment fixed the liability of the defendant to the wards of the plaintiff, as distributees, and that the present action was-properly instituted to enforce it. Objection overruled, and defendant' excepted.</p> <p>Defendant then asked for the following special instructions :</p> <p>1st. That the plaintiff was not entitled to a verdict, if the-jury should find that men of ordidary prudence would have taken Confederate money at the time in payment of ante-war debts.</p> <p>2nd. Nor can the plaintiff recover, if the jury should find that the plaintiff had made the money paid into his office his own.</p> <p>His Honor refused to give either of the instructions prayed; and charged the jury that as the case stood, the most the defendant was entitled to by reason of his payment of the Confederate money into the office of the clerk, would be to allow such payment to be a credit on the judgment, to the extent of the value of the money paid in good currency at the time, to-wit: 28th February, 1863; sueh value to be determined by the scale provided by the Act. 12th March, 1866. As to the second instruction prayed by defendant, there was no evidence offered to warrant it. Defendant again excepted.</p> <p>There was a verdict for the plaintiff. Rule for a new trial, and upon the argument of this motion, his Honor expressed great doubt whether the payment by the defendant of the Confederate money to the clerk was, under the circumstances, valid to any extent, and suggested an appeal on the part of the plaintiff, in order that the whole of the. points involved might be presented to this Court for adjudication. The plaintiff being content with the course the case had taken, declined to appeal. Rule for a new trial discharged; judgment and appeal by defendant.</p>

<p>On the trial of the mother for the murder of her infant child, it is error in the' Court below to permit a witness to relate a statement made by the mother of the prisoner and in her presence, that the prisoner “ had a child this way-before, and put it away,” to which the prisoner made no reply, and the reception of such evidence entitles the prisoner to a new trial.</p> <p>Evidence of a distinct, substantive offence cannot be admitted in support of another offence.</p> <p>(Homesley v. Hogue, 2 Jones, 391, cited and approved.)</p>

<p>Motion to quash indictment for perjury, heard before Watts, J., at Spring Term, 1873, of Chowan Superior Court.</p> <p>The grounds upon which the defendant based his motion to quash are stated in the opinion of the Court. His Honor allowed the motion, and gave judgment that the indictment be quashed, and that the defendant go without day.</p> <p>From this judgment, Willis Bagley, Esq., Solicitor for the •State, appealed to this Court.,</p> <p>cited to sustain the sufficiency of the indictment. State v. Mumford, 1 Dev. 519. And 3 Archbold, 392.</p>

Petition by the plaintiff to the Board of Commissioners of Orange county, praying a revision and correction of the list of taxables given in by her, heard by his Honor, Tourgee, J., at the Spring Term, 1873, of the Superior Court of said county. His Plonor being of opinion with the petitioner, directed dhe tax list to be corrected. Prom this order the Commis.sioners appealed.

Motion to dismiss civil action, heard before Watts, J., at Spring Term, 1813, of Craven Superior Court. This motion was overruled, and the defendants through their counsel, then moved that the cause be transferred to the Superior Court of the county of Guilford. His Honor, refused to grant this motion also, and rendered judgment against the defendants for the amount of the note sued on.

Civil action, for the recovery of the amount of certain notes and interest, tried before Buxton, J., at the Spring Term, 1873, of the Superior Court of Harnett county. Suit was commenced-27th July, 1871. Plaintiff alleged that defendant owed him $876.61> with interest, evidenced by three notes executed by E. J. Pipkin, as agent and guardian of defendant, payable to the plaintiff, negotiated for tlie benefit of the defendant and his estate, and paid by the plaintiff.

Civil action, petition for partition, to the Probate Court of Pasquotank county, submitted to Albertson, J., and by him determined, 14th day of January, 1873, upon the following facts agreed: Ferebee Gregory died intestate, leaving three children, to-wit: Hosea Gregory, and the petitioners, John and Nancy. She left no estate except twelve and three-fourths acres of land upon which she resided, which land descended to her children.

Criminal action, (sci. fa. upon a forfeited recognizance) tried before Russell, J., at the Spring Term, 1873, of Robeson Superior Court.

Civil action, commenced by summons before a Justice of the Peace, on the 4th day of September, 1871, and removed to the Superior Court of Davidson county,… Held: that if the evidence was believed, one of the notes was not barred by the statute of limitations, and that there was np failure of consideration. The jury found all the issues in favor of the defendant. Rule for a new trial; rule discharged. Judgment against the plaintiff for costs, from which plaintiff appealed.

Civil action, tried before Henry J., at the Spring Term, 1873, of Henderson Superior Court. The counsel for the parties in the Court below being; unable to agree upon a statement of the case, it was submitted to his Honor, who sent up with the transcript, the> following “ case settled.” “ This case had been referred, by consent, to ascertain the-amount due, and the award was to be entered as a rule of Court.

<p>(For syllabus and statement of the facts, see preceeding case of Laura L. Reed v. H. J. Farmer and others.)</p>

Criminal action, tried before Watts, J., at Spring Term, 1873, of Chowan Superior Court. The defendant was indicted for keeping an insufficient fence around his cultivated grounds during crop season, ■and upon the special verdict returned by the jury, His Honor was of opinion that the interest of the defendant in the crop made him criminally responsible for the condition •of the fence, and gave judgment accordingly against him. Defendant appealed.

This was an action in the Superior Court of Halifax, in which judgment was rendered for the plaintiff, subject to the opinion of the Court upon the following case agreed: 1. This was an action for the recovery of two notes given by the defendants to the plaintiff for the sum of §1,354,, with interest from the 2d day of February, 1870. 2.

<p>The examination of a witness before a referee, which was taken in tbe presence of the parties to the suit, and signed by tbe witness, who has since died, may be read as evidence on the trial of the suit, in which such examination was taken.</p>