Volume 70 — North Carolina Reports

Civil aotioN, for damages, tried before his Honor, Tourgee, J,, at the Fall Term, 1873, of the Superior Court of ObaNg-e county.

Civil aotioN, to recover the amount of a bond, tried before Tourgee, J., at Pall Term, 1813, of the Superior-Court of Ala-MANOE county. The plaintiff, a corporation created by the law of the State on the 23d day of August, 1870, loaned the defendants the sum of $1,500, taking from them a bond or covenant in the words following, to wit: “ $1,500.

Civil action, (on a guardian bond and for tbe removal of a guardian,) tried before Albertson, J., at tbe Fall Term, 1873, of the Superior Court of Nobthampton county. During the pendency of the suit it was referred to a commissioner to state an account between the guardian and his ward, who at Fall Term, 1873, reported the stated account.

Civil action tried before Clarice, J., at the Pall Term, 1873, of the Superior Court of Craven county.

Civil aotioN, tried before- Watts, J, at the January (Special) Term, 1873, of the Superior Court of Craven county. The plaintiff, who is the assignee of Smith & Dey, sues the defendant upon the following instrument, to-wit: “ No. 3. Ofuioe of Board of CommissioNers, Newbern, N. C., Jan. 31st, 1866.

Civil action, (for the dissolution of a copartnership, and account, and appointment of a receiver,) tried before his Honor, Judge Tourgee, at the Fall Term, 1873, of Orange Superior Court The following is the cace as settled and sent up to this Court by his Houosr: “In this action, Calvin E. Parrish having been heretofore appointed referee and receiver, and his reports, both as referee and receiver, having been separately filed in accordance with an order and rule of this…

Civil actioN, (Suit on defendant’s bond as guardian of plaintiffs,) heard before his Honor, Judge Garmon, at Fall Term, 1873, of Row AN Superior Court. The case was referred, at Fall Term, 1869, to James E. Kerr, to state an account, &c., and on the 9th of August, 1873, the report of the referee was returned.

Civil ACTION, (suit on an administrator’s bond,) beard before Cannon, J, at the Fall Term, 1873, of the Superior Court of EowaN County. At Fall Term, 1869, the action was referred to James E. ‘Kerr, who returned his report at Spring Term, 1873, at which term exceptions were filed to the report by both plaintiff and defendant.

Civil actioN, tried before logan, The plaintiffs, as next of kin and distributees of one Michael Keener, brings this suit against the defendants, his administrators, for an account and settlement. The complaint and answer are filed at Spring Term, 1870) at Fall Term, 1870, it is referred to the Clerk to take and account, who, after taking testimony, returns his report to Fall Term, 1871.

Civil ACTION, (to recover amount due plaintiff, on a guardian bond,) hoard before Henry, J., at Fall Term, 1863, of the Superior Court of Buetcombe county, on the following statement of facts: The intestate of the defendants, Sluder and Weaver, was the guardian of the plaintiff, and loaned some of the funds of his ward to one L. F. Sensabaugh, taking a note and security. This note is dated --- day of-, before the war, and the makers were resident in the county of Haywood.

INDICTMENT, for an Assault and Battery, tried before his Honor, Judge Mitchdl, at the Fall Term, 1873, of Alexander Superior Court. On the trial, the jury found the following facts: Defendant came home intoxicated one morning after breakfast was over; got some raw bacon, said it had skippers on it, and told his wife she would not clean it.

Criminal aotioN, (for refusing to work on public road, Bat. Rev., chap. 104, sec. 10,) tried before Albertson, Jl, at the special (August) Term, 1873, of the Superior Court of RowaN county. The action was commenced by warrant, in the name of John Barger against the defendant, charging him with refusing or neglecting to work on the public road, of which Barger had been appointed overseer.

INDICTMENT for a Riot, tried before Henry, e/1, at the Spring Term, 1873, of the Superior Court of Bueke County.

INDICTMENT, for profane swearing, tried before Clarke, J., at the Fall Term, 1873, of Robeson Superior Court.

INDICTMENT, for killing or abusing stock, Bat. Rev. cb. 32,. sec. 95, tried at th#Eall Term, 1873, of the Superior Court of Wilkes County, before his Honor, Judge Mitchell.

INDICTMENT for forcible trespass, tried before his Honor, Judge Button, at the Fall Term, 1873, of the Superior Court of RICHMOND County.

<p>The defendant sold to the prosecutor four barrels of crude turpentine, representing “that they were all right, just as good at bottom as they were at top, ” &c., and when examined, the barrels contained only a small quantity of turpentine on the top of each, the rest of the contents being chips and dirt: Held that the defendant was guilty of cheating by false tokens.</p>

INDICTMENT, Larceny, tried at the Spring Term, 1873, of BladeN Superior Court, before his Honor, liussell, J. The defendant was charged with stealing a hog, the property of one Averett. The evidence on the part of the State was, that Averett lost his hog and found it in the pen of defendant, with the mark just changed to that of defendant When the hog left it was in his, Averett’s mark.

INDICTMENT, Perjury, tried before Watts, J,at the Fall Term, 1873, of Wabeen Superior Court.

CniMiNAs, actioN, (Misdemeanor, Bat. Rev. chap. 32, see. 116,) tried before his Honor, Judge Moore, at the Fall Term, 1878, of Fitt Superior Court. The defendant was brought to answer the following indictment : “The jurors for the State, upon their oath present, that Benj.

Indictment, for Forcible Entry and Detainer, tried at the Fall Term, 1873, of G-ates Superior Court, before his Honor, Judge Albertson.

ApplioatioN for a mandarmts, heard before Waits, J., at Chambers in the city of Raleigh, on the 20th day of January, 1874.

Civil aotiON, commenced in a Justice’s Court, from whence it was carried by appeal to the Superior Court of Chow ah county, where it was tried before Albertson, J., at Fall Term, 1872.

Civil ACTION, tried before Tourgee, Jand a j ury at tbe Fall Term, 1871, of Guilford Superior Court; and after-wards, to-wit: 26 April, 1872, determined by bis Honor at Chambers.

Civil aotioN, f(on a note given in 1863,) tried before bis Honor, Judge Moore, at the Judy (Special) Term, 1873, of MboKlbNbuRG Superior Court. Held: that the old debt must be regarded as paid and the transaction a new loan and the scale applied as of that debt.” In the present case, the note was dated 26th of October, 1869, and was made due and payable sixty days after the 7th of November, 1863.

Civil aotioN, (to recover a promissory note,) tried before his Honor, Budge Albertson, at the August (Special) Term, 1873, of RowaN Superior Court. At Fall Term, 1870, the case was submitted to a jury, who returned a verdict in favor of the plaintiff for $2000, the full amount of the note sued upon, with interest from the date thereof. The note was dated 2d March, 1873, and made pay. able on demand.

^.CrviL actioN, (commenced by warrant, and carried up to the Superior Court of Chowan County, by appeal,) v here it was heard and determined by Albertson, J., at Fall Term, 1813, upon the following cabeagREeu : “ A verbal agreement was made in January, 1872, between defendant, Wood, and his intestate, Miller, that his intestate, Miller, should cultivate his farm for that year.

On am against the State, upon the following facts agreed: In September, 1873, his Excellency, the Governor, issued 'his proclamation, offering a reward of three hundred dollars for the arrest of one Frank Malpass, a fugitive from justice, charged with murder; the reward to be paid to any person who should apprehend said Frank Malpass and deliver him to the sheriff of New Hanover county.

PetitioN for a writ- of Oertiorari, heard by His Honor, Judge Toitrgee, at Chambers, the 14th day of December, 1873.

Civil actioN, for the recovery of certain interest, tried on demurrer, by Moore, Jat the July (Special) Term, 1873, of the Superior Court of MbcKLENbueg- county. Plaintiff sued defendants, who compose the Board of Commissioners of Rutherford county, to the Superior Court of Mecklenburg, the county in which he, the plaintiff) resided.

Civil aotioít, commenced in a Justice’s Courc, from which the transcript of the judgment in favor of the plaintiff, was filed in the Superior Court of ChowAN'County, where a motion in the cause was heard by Albertson, J., at Fall Term, 1873.

<p>In an action, brought to subject certain lands (purchasedby defendant,) to the operation of an alleged verbal trust, to set up which it is material that all of certain parties contributed to the payment of the debt charged upon the land, evidence tending to show that one of such parties paid nothing towards said debt, and claimed no interest in the land, is material and admissible, -and that Ms Honor erred in excluding it on the trial below.</p>

Civil aotioN, (for the recovery of a certain tract of land,) submitted to, and determined by Albertson, J., at the Fall Term, 1813, of CuRRitugK Superior Court. His Honor, upon the facts submitted, being of opinion witli the defendant, the plaintiff appealed. The facts, are fully set out in the opinion of the Court.

Civil actioN, (for the recovery of 210 acres of land,) tried before Buxton, J., .at tbe Fall Term, 1873, of the Superior Court of Moore county. The plaintiffs claimed as children and heirs at law of William Crawford, who died, seized and possessed of the premises in dispute, in January, 1831. Mr. Crawford left a widow, Catherine, to whom dower was allotted, and which included the land sued for. She died in March, 1859.

Civil action, tried before Oloud, J., at the Fall Term, 1872), of the Superior Court of Row AN county. By consent of parties, his Honor found the facts in the ease,, which are the same as stated in the suit between the same plaintiffs and defendants, decided at January Term, 1873, of this Court, and reported in 68 N. C. Rep. 546, and which, (those pertinent to the question involved,) are set out in the-opinion of Justice Settle.

Civil actioN, (Petition for an aceount and settlement) heard before Russell, Jat the Spring Term, 1873, of the Superior Court of SahpsoN County. The plaintiff, who had been a ward of the defendant, filed his petition for an account and settlement, at May Term, 1866, of the Court of Pleas and Quarter Sessions of Sampson County. At February Term, 1867, it was referred to Clerk to state an account.

<p>In a proceeding to subject real estate to sale for assets, after a report of the sale is returned and confirmed, the Judge of Probate, upon proper cause shown, has the right to set the sale aside, and order a resale of the property.</p> <p>And although the exercise of this right is discretionary with the Judge of Probate, still it is such a matter of legal discretion, involving a “matter of law or legal inference,” that an appeal will lie from his decision.</p> <p>There are questions of fact, as distinguished from issues of fact which the Probate Judge in cases before him, and the District Judge in cases before him, may decide without a jury. And in a motion made to set aside a sale, it is not necessary for the Judge in case of appeal, to send to the appellate Court a separate statement of the facts upon which his decision rests when the affidavits and counter-affidavits for and against the motion accompanies the case.</p>

Ciytu actioN, (suit on a note,) tried at tbe July (Special) Term, 1S73, of tbe Superior Court of Mboklenbukg county, before bis Honor, Moore, J. Tbe plaintiffs, as indorsees of one Wm. Richards, sued defendants on a note for $549.32 and interest, less a credit of $200, August 26th, 1869 ; date of note 19th January, 1869. Defendants rely on tbe plea of payment.

MotioN, at this Term, after notice, for an attachment against the defendant in the above entitled canse, to compel him to pay the costs adjudged against him in this Court, at June Term, 1872.

Civil aotioN, (commenced in the Court of Pleas and Quarter Sessions, 1857,) tried before Moore, J., at the July (Special) Term, 1873, of the Superior'Court of MeckleNbubg county.

Civil actioN, tried before Mitchell, J., at the Pali Term, 1873, of the Superior Court of Catawba County. The case is brought to this Court upon the appeal of one of the defendants, from the judgment of the Court below, sustaining certain exceptions of the plaintiff to the report of the Clerk. The facts are fully stated in the opinion oí the Court.

Civil action, tried at the July (Special) Term, 1873, of the Superior Court of BüNCombe county, before his Honor, Albert-son, J., a jury trial having been waived. The plaintiff, assignee in bankruptcy of B. I. & I. B. Alexander, surviving partners of Patton & Alexander, brings this action against the defendant, Ephraim Clayton, to recover the sum of $579.01, the amount of a store account, made with said Patton & Alexander.

Civil actioN, commenced before a Justice of the Peace, and carried by appeal to the Superior Court of PeesoN county, in which it was tried before Tov/rgee, J., at Fall Term, 1873. The plaintiff complained for the non-payment of §200, due by account for work and labor during the year 1860, and demanding interest from 1st day of January, 1861. To this complaint the defendant pleaded the statute of limitations. The Justice give the plaintiff judgment, and the defendant appealed.

<p>The refusal of the Judge below to consolidate several actions brought to recover the amount of certain bills issued by a Bank, the defendant, where it did not appear that the bills sued on were all of like chax-i>acter, and emitted under the same circumstances, was right, and the defendant was not entitled to a new trial on account of such refusal.</p> <p>The rule that when two witnesses of equal credibility swears affirmatively and negatively as to a certain issue, credit is to be given to the affirmative statement in preference to the negative, is not a rule of law to be laid down by the Court, and it was no error in the Judge to refuse so to charge.</p> <p>If a statute declares a security void,, it is void in whosesoever hands it may come. If however, a negotiable security'be founded on an illegal consideration, (and it is immaterial whether it be illegal at common law or by statue,) and no statue says it shall be void, the security is good in the hands of an innocent holder, or of one claiming through such holder.</p> <p>(Buie v. Kelly, 7 Jones, 266; Weith v. City of Wilmington, 68 N. C. Rep. 24, cited and approved.)</p>

Civil actiON, (to recover the amount of certain coupons, and for a peremptory mandamus, dkc.,) tried before Moore, J., at the July (Special) Term, 1873, of MeokleNbueg Superior Court, upon the following case agbeed : I. The County Court of McDowell county was abolished on the 15th day of July, 1868, and its powers and duties were thereupon devolved upon tbe County Commissioners. II.

INDICTMENT, (for injury to a public school house,) tried at the August (Special) Term, 1873, of Rowan Superior Court, before his Honor, Judge Albertson. The defendants were charged with demolishing a public school house, belonging to the school committee of the township. The defense was that the house belonged to one Tobias Xesler, and that in the injury committed they were acting under Kesler’s orders.

INDICTMENT, for Burglary, tried at January Term, 1874, of of the Superior Court of Wake county, before his Honor, Waits, J. Tiie facts are stated in the opinion of Justice Reads. Defendants were convicted and appealed to this Court.

<p>In criminal trials against two or more defendants, tlie Judge has the right in his discretion to separate the evidence hearing upon the case of each, and to instruct the jury, as to what is competent against one, and incompetent against another.</p> <p>It is no good cause of challenge that the juror has formed and expressed an opinion adverse to the prisoner, such opinion being founded on rumor — and the juror further stating that he could try the case according to the law and evidence, uninfluenced by any opinion he may have so formed from such rumor.</p> <p>When several persons are jointly indicted, they cannot claim separate trials as a matter of right. Such separation is a matter of discretion with the Court.</p> <p>In trials for capital felonies, the presiding Judge has the right to regulate by reasonable rules and limitations, the arguments in the cause: Hence, it is no good ground for a new trial, that the counsel of the prisoner was limited by the Court, in his remarks, to one hour and a half.</p> <p>Bthum, J., dissenting.</p>

INDICTMENT, (Forcible Trespass,) tried before logem, J., at Fall Term, 1873, of. Cleveland Superior Court.. On the trial below, the jury found the following special verdict: One Jordan Jenkins did, on the 20th of December, 1872, lease in writing the land upon which the trespass is alleged to have been committed, from one Ben Bowen.

Civil aotioN, brought to recover the value of a horse, tried upon a case agreed, by Clawlce, J., at the Fall Terra, 1873, of WilsoN Superior Court. Upon the trial, his Honor being of opinion with defendant, gave judgment accordingly, from which judgment the plaintiff appealed. The facts upon which the decision of the Court is based are found fully stated in the opinion of Justice RodmaN.

Civil aotioN, (issues submitted to a jury under the direction of the Supreme Court,) tried before his Honor, Judge Mitchell, at the Fall Term, 1873, of the Superior Court- of Catawba, having been removed thereto from Iredell Superior Court.

<p>Civil. ACTION, in the nature of a petition for Partition of lands, filed in the Probate Court, thence carried to the Supe--rior Court of Wilson county, where it was tried on issues submitted to a j,ury,. before Glarlce, </!,, at Spring Term, 1873.</p> <p>The ease comes to this Court upon the appeal of the plaintiff, who excepted to the rejection by the Court of certain evidence by them offered, tending to establish the legitimacy of the feme plaintiff, the issue then joined.</p> <p>The facts relating to the point decided are fully set out ha the opinion of the Court.</p>

Civil actioN, remanded from this Court at June Term, 1872, 67 N. C. Rep. 383, to the Superior Court of Davie county, where it was tried by Cloud, J., at Spring Term, 1873. From the judgment rendered by his Honor, the defendants appealed. All the facts necessary to an understanding of the decision of the Court will be found in the opinion of Justice Settle.

Civil aotioN, commenced in the court of a Justice of the Peace, and tried at the Pali Term, 1873, of the Superior Court of Beaueoet county, before his Honor, Moore, J. An execution had issued from the Supreme Court against the plaintiff in this action, Willard, and came regularly into the hands of the present defendant, who was sheriff of Beaufort county. The sheriff levied the same on the real estate of Willard, and advertised it for sale.

Civil actioN, (to recover possession of a tract of land,) tried before his Honor, Judge Buxton, at the Pali Term, 1873, of the Superior Court of Mohtgomekt county. Plaintiffs claimed title, as purchasers at execution sale by the sheriff, under executions hereinafter fully alluded to.

This is the same as the preceding case, in which the facts are fully stated. In the preceding, the appeal of the defendants is considered; this comes up upon the appeal of the plaintiffs.

This was a MOTION to dismiss a bill pending in this Court. The facts in relation thereto and which are pertinent to the decision of the Court, are fully stated in the opinion of Juutioe Settle.

Civil aotioN, tried before bis Honor, Moore, J., at the July (Special) Term, 1873,) of MeoKleNeueC Superior Court. The defendants, sureties on the official bond of a deceased sheriff, file affidavits denying that the summons in this case was ever served on them. His Honor found the allegations to be so, and dismissed the proceedings, when the plaintiffs appealed. The facts of this case are stated in the opinion of the Court.

Civil action, tried before Moore, «71, at the July (Special) Term, 1873, of Mecklenburg Superior Court, upon the following Case agreed.

Civil ACTION, (for the recovery of a promisory note,) tried before Moore, J., at the (July) Special Term, 1873, of the Superior Court of MecKLENBueg County. The defendant made a note for $400, payable to one --, who assigned it for value to H. B. Williams. After the assignment, Williams was declared a bankrupt, and his assignee transferred the note to the plaintiff, for value.

<p>The presiding Judge, under the old Equity practice, might or might not submit issues to a jury, as he saw fit; and might sustain or disregard the finding of the jury on such issues as he thought best.</p> <p>A guardian who, in 1882, exchanged North Carolina six peí' cent, bonds • for North Carolina eights, when his wards were of full age, and after^ wards received the semi-annual interest on such bonds, and gave the guardian their receipt for the same when the bonds were turned over to them, is not responsible for the same, though they were lost'by the results of the war.</p>

Civil actioN, tried before Moore, J!, at the July (Special) Term, 1873, of MeceleNbubg Superior Court, The defendants demurred to the complaint of the plaintiffs, apon the grounds stated in the opinion of the Court. His Honor overruled the demurrer, and the defendants appealed. All the facts pertinent to the point decided, are set out in the opinion of the Court.

CrviL actioN, tried before Logan, J., at Fall Term, 1873, of the Superior Court of RuthbRFOed County.

MotioN, (after due notice,) to set aside a judgment obtained at Spring Term, 1868, heard before Ocmnon, J, at Pali Term, 1868, of RowaN Superior Court. The defendant in this action, had issued an attachment against the plaintiff, under the name of the “Deep River Copper Mining Company,” founded upon a note given to him by his brother, who claimed to be the agent of the company.

Civil actioN, tried before Buxton, J., at Spring Term, 1873, of CumbeelaND Superior Court.

Civil actioN, tried at the Fall Term-, 1873, of the Superior Court of CaRtebet county, before his Honor, Judge Clarice.

<p>In a suit between two banks for the recovery of $19,331, it is agreed by the debtor bank to pay one half of. said debt and interest in cash, and to satisfy, pay and discharge the balance by paying over to the other 50 per cent, of its assets as they are collected, and as may be sufficient therefor, the creditor bank agreeing to accept such payment and agreement as to the remainder, in ‘ ‘ full satisfaction, payment and discharge of the suit and of all matters controverted therein or appurtenant:” Held, that this agreement was in effect an assignment of one half the assets of the debtor bank, as a security for its remaining indebtedness.</p> <p>Held further, That such assignment not being registered, was void against a creditor of the bank making the assignment; and that the creditor acquired a lien on the dioses in action assigned, as soon as the Court below condemns them to his use.</p>

Civil aotioN, on a stated contract, tried at the July (Special) Term, 1873, of Buncombe Superior Court-, before Albertson, J. In his complaint, the plaintiff alleged that the defendant owed him a commission of five per cent, upon the sale of a certain tract of land, amounting to $375, according to the terms of a written contract, fully set out in the complaint.

Civil actiou, to recover a bond issued bj the corporation, commenced in a Justice’s Court, and carried by appeal to the Superior Court… Held: when 82 voted in favor of “ subscription and only 2 (two) voted against it, whereupon the Commissioners “ dissolved, that the Treasurer of the town subscribe $2,000 to the stock of the Beaufort Steam Perry Boat Company, and receive a certificate of stock therefor. “ liesolved, further, That a bond or bonds, payable at twelve months,…

In his complaint the plaintiff alleges, that at January Term, 1872, of Rowan Superior Court, he recovered a judgment against one Styres; that on the 3d July, 1873, he caused an execution to issue on such judgment which came regularly ’into the sheriff’s hands.

Special pboueedings, (petitioner against an- administrator for a settlement,) tried upon exceptions to the report of a commissioner, before Logan, J., at Spring Term, 1873, of the Superior Court of Pole County. The. plaintiffs are the distributees and next of kin of Charles Wilson, deceased, of whose estate the defendant, R. J. Abrams, is the administrator.

Civil actioN, in the nature of a special proceeding to recover a legacy, heard by Henry, J., at the Eall Term, 1873, of EüNcombe Superior Court. The case was referred, and the report of the referee excepted to by the defendant. His Honor, on the trial below, sustaining the exception, the plaintiffs appealed. The facts of the case, with the exceptions to the report and the opinion of the Judge below, are fully stated in the opinion of the Court. J. II.

Civil ACTION, (in the nature of a special proceeding,) tried before Glarke, J., at Spring Term, 1873, of DupliN Superior Court. The plaintiff’s summons was returnable before the Superior Court in Term time. Defendants demurred; assigned as a ground the want of jurisdiction. His Honor sustained the demurrer and gave judgment dismissing the action ; from which judgment plaintiff appealed.

<p>INDICTMENT, (for Larceny,) tried at the Fall Term, 1873, of Riohmond Superior Court, to which it had been removed from Anson Superior Court, before his Honor, Judge Buxton.</p> <p>The defendant was charged in the following indictment:</p> <p>“ The jurors for the State upon their oath present, that Ed. Simons, a person of color, late of the county of Anson, on,the 1st day of January, 1873, with force and arms, at and in the county aforesaid, one hundred pounds of cotton, of the value of five dollars, of the goods and chattels of L. H. Covington, one hundred pounds of cotton of the value of five dollars of the goods and chattels of Daniel Gatewood, then and there being found, feloniously did steal, take and carry away, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.”</p> <p>The proof was that L. H. Covington carried several thousand pounds of his seed cotton to the gin-house of Daniel Gatewood to be ginned, and while the cotton was being ginned, several hundred pounds were stolen ; and the evidence implicated the defendant in the larceny.</p> <p>Eor the defendant, it was insisted that the indictment contained but a single count, in which the joint ownership of the cotton by Covington and Gatewood was alleged; and that in order to convict the defendant, such joint ownership must be proved, otherwise the defendant should be found not guilty; and his Honor was asked so to charge the jury. This, his Honor declined to do. Defendant excepted.</p> <p>The jury were instructed by the Court, that in cases of bailment, wher-e the property bailed was taken, the ownership may be alleged to be in the general owner, or in the bailee that this indictment contained two counts, and that if either-was supported by the evidence, it was sufficient. To this-charge, defendant again excepted.</p> <p>The jury found the defendant guilty. Rule for anew trial y rule discharged.</p> <p>Defendant then moved to arrest the judgment, on the ground. • that the ownership of the property stolen, was defectively stated, in the indictment. Motion overruled. Judgment and appeal: by defendant.</p>

<p>Civil actios, to recover certain witness tickets, tried before Tourgee, J., at the Pall Term, 1873,. of tbe Superior Court of AlamaNOe Oonrity.</p> <p>The plaintiff, as assignee-, sues the defendants for $454.40, the amount of certain witness tickets, issued, some by the Clerk of this Court and others- by the Clerk of Alamance Superior Court, alleging that the defendants as Commissioners of Alamance County are responsible therefor.</p> <p>The defendants demur to the complaint</p> <p>1. That it does not allege that tbe Judge of- the Superior Court,, before whom the cases were tried, in which the pretended witness tickets are charged for attendance before Hon. R. M. Pearson and others sitting as committing magistrates, has decided that the cost should be paid by the prosecutor, the ■county or the State, as is required by law. Said costs being -in the discretion of the said Judge, and either >to be taxed or not, as he may direet.</p> <p>2. That it does not allege and show, that the said witnesses had received any proper tickets for their attendance upon said examination, which could be a-charge upon the-county, -or any ■other person.</p> <p>3. That there is n© existing law under which the defendants can audit and order the payment oí such witness tickets, as are charged in the complaint for attendance upon the preliminary examination before Hon. E. M. Eeaeson or others.</p> <p>4. That the complaint does not allege, that either the tickets •charged for attendance upon the examination or before the grand .jury at the Court, were ever charged in any bill ofocost-s made out by the Clerk of the Superior Court of Alamance •County,-under an order of said Court,; nor that.any such bill -of costs was ever presented to them; nor that any order of the Judge was ever made taxing the costs in any of the alleged cases, in which the defendants were discharged, and directing them to be paid by the county of Alamance as required by law.</p> <p>His Honor overruled the demurrer, and gave -the plaintiff judgment, from which the defendants appealed.</p> <p>1. At common law there was no compensation allowed t© witnesses in .-criminal prosecutions. Roscee’s Crim. Ev.. 121; 2nd Russell on Crimes -84L</p> <p>2. By Statutes George 2d, 3d and 4th, remuneration was provided, first in eases of felonies and afterwards in rnisde-s-neanors, such as the cases -in which the witnesses here are., alleged to have attended. These statutes never had operation in North Carolina, and the subject is regulated here by our ■own acts of Assembly.</p> <p>3. By the early acts (see Revisal of 1S20,) such claims were pj'ovcd in Court, and paid out of the State Treasury.: bat by act of 1819, they are directed to be paid by the county in which the prosecution was commenced. Rev. 1820, p. 1490. A similar provision is found in Rev. Stat. p. 125 and in Rev. Code,, p. 151. In. both of these last the costs are directed to be paid by the county in which the offence under investigation is charged to have been committed.</p> <p>These acts-all speak of witnesses summoned or reeugnizod. to attend “’in the County and Superior Courts;” and do not by their terms apply to- those who attend before magistrates on preliminary examinations;, and the Revised Code 141, swprm sec. 9, says “in case the defendant be discharged, the Court shall order the witnesses to be paid.”</p> <p>An order of Court would therefore appear to be necessary before payment of witnesses is made from a county treasury. And it is not perceived that by any of the legislation down to, and including-the Revised Code there was provision made for payment of witnesses before an examining magistrate, or a Judge acting as such.</p> <p>By the act of 1868, cb. 11, sec. 572, p.. 668 ; “ On fees of witnesses,.” those attending at a term of the Court, or before the Clerk, or a referee,, or upon any inquest, or examination, have an allowance of $1.50 per day, and also mileage from tlieir place of residence to the place of examination, but the act does not settle by whom it shall be paid. But the act off the same session chap. 178, see, 40, p. 446, “ of costs and proceedings,” the Judge of Alamance Superior Court, before whom, the papers should have been returned, is invested with a discretionary power to determine in each case of discharge of a defendant, whether the costs should be paid by the prosecutor, the county or the State. His allocatur is necessary against th& eounty, before the defendants are liable to action on the witness tickets in question.</p> <p>He should order them to be paid by the- Stats, the proceedings having all taken place at Raleigh, sixty miles distant from the county, because the official duties of the Judges conducting them required their presence in that city. At all events, he must first determine among tbe three parties aforesaid from whom payment may be exacted, who shall bear the harden.</p> <p>James G. Moore, vs.</p> <p>The Roai’d of Commisssionei’s of Alamance County.</p> <p>Appeal from the Superior Court of Alamance by defendant.</p> <p>Plantiff sues for the recovery of $454.40 due him from the county upon various witness tickets, for the attendance of various witnesses, transferred to him before suit brought, a part of which were tickets given to witness — is by order of Chief Justice Pearson for attendance before him setting as a committing magistrate. See complaint and schedule of tickets thereto attached. Defendant demurred : Upon the issues of law judgment for plaintiff. Defendant appealed.</p> <p>Plaintiff relies upon the following statutes : Chap. 31, sec. 67, Revised Code, which provides that witnesses summoned by any one authorized to require their attendance are entitled to pay, &c.</p> <p>Cha.p. 279, sub. chap. 11, sec. 572, acts of 1808-’79, which provides that witnesses attending upon any inquest or examination shall be paid ])er diem and mileage, &c.</p> <p>Chap. 28, secs. 9 and 10 Revised Code : witnesses summoned on behalf of the State, and defendant discharged, and no order for prosecutor to pay costs, then the county shall pay the costs. The Court shall order witness paid. (That evidently County Court whose place in this respect is now filled by Board of Commissioners,)</p> <p>Code of Civil Procedure, secs. 560 and 561, re-enacted by chap. 179, sub. chap. 1, see. 559, acts 1868-’69, amendatory of title 21, C. C. P.</p>

<p>A died seized and possessed of real and personal estate, leaving him surviving three grand-children l>y a son and live by a daughter — the son and daughter having died before A: Held, that under rule 3, Bat. Rev. chap. 36, the grand-children represent their ancestors, and take the estate per stirpes and notjper capita.</p> <p>And as the parties take by representation, it follows that any advancements made to the ancestors must be accounted for.</p>

Civil action) by one Board of Directors against anothei' Board, for the recovery of damages, tried before Moore, J., at the July (Special) Term, 1873, of MeoiclknbuRG SuperioT Court. The facts presented by the record, so far as they are .pertinent to the points decided on this appeal, are clearly and sufficiently stated in the opinion of the Court. From the judgment of the Court below, which is folly set out in the opinion, the defendants appealed.

Civil actiost, in the nature of a special proceeding; commenced before the Superior Court Clerk of Caldwell county, and by him removed to said Court, from whence it was removed upon affidavit, to the Superior Court of BubKE county, where it was tried before his Honor, MitohellyXr at Fall Term,, 1873.

INDICTMENT, for larceny, tried at the Pall Term, 1873, of Mastín Superior Court, before bis Honor, Judge Moore. On the trial below, the defendant was convicted. Judgment and appeal. The fasts- of the ease, and the questions raised upon the trial, are fully stated in the opinion of the Court. cited and relied on the decision of the case of the State v. Noah Navis, 63 N. C. Rep. 578-,

Civil action) (to foreclose an Equity of Redemption, for an account and other relief,) tried at Pali Term, 1813, of UNION Superior Court, before Buxton, J. The case, as transmitted to this Court, states, that after the amendment of the pleadings heretofore allowed, and approved by this Court, in the same case, 67 N.. C. Rep., 84, changing the original suit from an action for the recovery of real property, into an action to foreclose, 1.

Civil aotioN, Ejectment under the old practice, tried before before Buxton, J., at Fall Term, 1873, of the Superior Court of MONTGOMERY COUnty. The action was commenced by serving a copy of the declaration on the defendant, 20th June, 1867. Originally there was but one count, a single demise in the name of the present plaintiff, Margaret McLennan, the date of such demise being 1st January, 1866. After a decision of Margaret McLennan v. Ii.

Civil aotioN, (to recover the value of a cotton gin,) tried at Fall Term, 1873, of the Superior Court of Beaueoet county, before his Honor, Judge Moore.

Civil actioN, (for the recovery of certain lots in the town -of Murphy,) tried before Gloud, Z, at Fall Term, 1873, of the ^Superior Court of CiieRokee county.

Civil aotioht, upon the official bond of the defendant, submitted to, and decided by Moore, J., at Spring Term, 1873, of the Superior Court of Edgecombe county, upon the following Case agreed : The defendant had been appointed Clerk and Master in Equity in Edgecombe «county, in 1860; and at Spring Term, 18 51, executed his bond as such, in the penal sum of’$15,000, with the other defendants as his sureties.

CONTROVERSY, submitted without action, to Albertson, J~., at Eall Term, 1873, of the Superior Court of Ciiowah county. The facts, as agreed, are : The plaintiff, Warren, rented his farm for the year 1873, to one Smali, for $1,500. On the 1st of March of that year, Small executed to plaintiff a trust deed, on account of money and supplies contracted to be advanced for $ , conveying in said deed bis crops to be raised on said farm during the year.

<p>A makes his note to B on the 7th June, 1857, and on the 12th August, 1860, 0 endorses on the back, “Pay the within to D.” signing his name: Held, that 0 was not liable either as an endorser or guarantor, and that his indorsement merely passed the property in the note to D.</p>

Civil aotioN, to recover the amount of three several bonds, tried before Mitchell, J., at the Spring Term, 18-73, of the Superior Court of Asiie count)?. Of three notes sued upon in this action, two were for Con-' federate money, payable to Jones & Bogle, and the other for $500, given to A. M. Bogle, dated 5th May, 1864, payable in Confederate currency ; one was for $1,935, and dated 6th May, 1864; the other, dated the 7th August, same year, called.for $1,200.

Civil aotioN, tried before his Honor, Judge Tourgee, at the Fall Term, 1873, of Chatham Superior Court. In his complaint, the defendant alleges, that the defendant having a claim against the Western Railroad Company, amounting to $2,715.25, assigned it to him by the following instrument : “ January 21st, 1870.

Civil actioN, (covenant on a sealed instrument,) heard before Cloud, J., upon exceptions to a report of a referee, at Spring-Term, 1873, of Yadkin Superior Court. The facts in the case are fully set out in the opinion of the Court. His Honor, upon the hearing below, allowed the exceptions-of the defendants, modifying the same, giving j udgment accordingly. Erom this judgment both plaintiffs and defendant appealed.

This case is the same as the foregoing one, only brought to this Court upon the appeal by plaintiff. The facts are fully stated in the opinion delivered by Justice Byhum in the case of the same title, next preceding.

Civil aotioN, tried before Glarke, J., at the Spring Term, 1873, of the Superior Court of Caeteket county. Tbis action was brought against the Bailroad Company by the plaintiff, an employee of the road, for damages received while performing his ordinary duties on the road. The evidence, sent up as a part of the record, not being pertinent to the point on which the case was decided in this Court, need not be recited.

Civil aotioN, (commenced by capias in June, 1866,) tried before his Honor, Judge Tourgee, at the Fall Term, 18-73, of the Superior Court of Randolph county. John Sanders and wife, Elizabeth, assigned by deed all the right of the said Elizabeth to a distributive share in her father’s estate, (one-fifth thereof,) to the plaintiff, reciting in the deed that they had theretofore made Len.

Civil ACTION, tried at the Spring Term, 1873, of the Superior Court of Gates county, before Watts, J. The facts, involved in this action, are thus stated and transmitted to this… Held: as agent of his brother, the defendant, James II., one of the Bond notes for $1000 and interest, one of the sureties to this being solvent. The plaintiff, Willey, partly in his own right, and partly for Jacob Hinton, held one of the notes payable to said Jacob Hinton for $1000 and interest.

Civil actios, commenced in a Justice’s Court, and carried by appeal to the Superior Court of MeceleNburg, where it was tried at July (Special) Term, 1873,, before his Honor, Judge Moore. Upon the trial, the jury, under the charge of his Honor, returned a verdict in favor of the defendant. Judgment in accordance with the verdict, and appeal by the plaintiffs.

Civil actioN, tried at Spring Term, 1873, of the Superior Court of Catawba county, before Mitchell, J. Plaintiff' the Board of Commissioners of Catawba county, seeks to recover from the defendant the sum of five hundred dollars, heretofore wrongfully paid to him by -Jonas Cline, sheriff of the county.

Civil aotioN, commenced in a Justice’s Court, and by appeal carried to the Superior Court of ChowaN, where it was tried before Albertson, J.„ at Fall Term, 1873. In 1872, one Bogerson, an agent of the plaintiff, sold to the defendant a mule, and in payment for the price took defendant’s note under seal for $173, payable in November, 1872.

, at Fall Term, 1873, of the Superior Court. On the 25th August, 1873, a summons was placed in the hands of the sheriff, who returned it on the 25th of the ensuing October, endorsed “ Not executed for the want of fees.” Plaintiffs contending this to be an insufficient return, moved for a rule against the sheriff, which motion the Court refused, upon the ground that the sheriff was entitled to his fees in advance. From this judgment plaintiffs appealed.

Civil action, (for the recovery of damages,) tried before his Honor, Judge Hussell, at Spring Term, 1873, of the Superior Court of GreeNE county. The plaintifi brings this action against the defendant to recover damages for the destruction of his wagon under the following circumstances: Plaintiff had his wagon at the warehouse of defendant in Goldsboro, to receive freight.

Civil ACTION, (to recover possession of certain personal property heretofore mortgaged,) tried at the December (Special) Term, 1873, of Halifax Superior Court, before his Honor, Moore, J. The defendant, in January and May, 1870, executed to the plaintiffs two several mortgages, (or liens on his crops,) conveying his crops to be made during that year and certain stock to the plaintiff's to secure advances by them to be made to an amount of $1000, or $500 each.

Civil actioN, for the recovery of a note commenced in a Justice’s Court, and carried by appeal to his Honor, Judge Cla/rlce, at Chambers in GreeNE County. The note sued on was for $12.874- payable within six months after March 24th, 1857.

Civil aotioN, for the specific performance of a contract for the purchase of land, tried by Towrgee, J., at the Fall Term,. 1873, of Chatham Superior Court. The facts of the case are fully set out in the opinion of the Court. From the j udgment of his Honor, overruling certain exceptions of the defendant to the admission of evidence, he appealed.

Civil actioN commenced before a Justice of the Peace, on the 7th of October, 1872, and tried before Tourgee, J., and a j ury of the Superior Court of PersoN County. The plaintiff alleged that the defendant, as agent of his testator, Moses Jones, had received $50 and had appropriated the same to his own (the defendant’s) use. This the defendant in his answer denied, and insisted that any claim the plaintiff might have was barred by the statute of limitations.

; Civil ACTION, to recover a tract of laud, tried at the Fall 'Term, 1873, of Wimes Superior Conrt, before his Honor, . Judge Mitohell and a jury.

MotioN to set aside a restraining order, heard by Henry J., at Chambers in BunooMBE county, 26th day of August, 1873. The plaintiff in his complaint, demanded that the defendants should be enjoined from selling certain lands under' the provisions of a deed in trust, alleging irreparable injury, and on the 4th of August obtained a restraining order until the 26th of the same month, when the defendants were summoned to appear.

Civil actioN, tried at Fall Term, 1873, of Gaston Superior Court, before his Honor, Judge Logan. The facts necessary to an understanding of the points decided in this Court, are fully set out in the opinion of Justice Reade. Upon the return of the report of the referee both plaintiff and defendant excepted to the same. And from the judgment of the Court overruling certain of his exceptions, the defendant appealed.

Civil actjoN, motion to file an amended answer, tried by Moore, J., at the Fall Term, 1873, of the Superior Court of EdgecoMbe County. The plaintiff', Treasurer of Edgecembe County sued the defendant, the former Chairman of the Court of Pleas and. Quarter Sessions of that county, for the balance of a fund in his hands, belonging to the county. Defendant answers the complaint, and the plaintiff demurred to the answer.

Civil aotioN, to recover the amount of a bond, tried before Cloud, J., at Spring Term, 1873, of the Superior Court of Yadkin county.

Civil actioh, on the official bond of the County Treasurer of LeNOIr County, tried before Hussell, J., at the Spring Term, 1873, of tbe Superior Court of GreeNE County to which Court it had been removed upon affidavit. The following are the substantial facts as sent up with the record : The only question was whether or not one W. IT.

Civil ACTION, to enjoin defendants from levying certain ’taxes, heard before his Honor, Judge Clarice at Spring Term, .1873, of Jones Superior Court. Upon the application of the plaintiff, Judge Watts, at •Chambers, granted an injunction against the defendants, restraining them from levying more taxes than two dollars on the poll, and two dollars on the three hundred dollars worth of .real estate.

Civil actioN, to recover of defendants certain notes, tried at the July (Special) Term, 1873, of the Superior Court of Meck-lenburg, before bis Honor, Judge Moore. The following is one of the notes, (the other being similar,) upon which this action is founded: “No. 23. Office of the N. 0. Bailkoad Company, OompaNY' Shops, January, 1st, 1865.

Civil ACTION, tried at Spring Term, 1874, of the Superior Court of Caldwell county, before his Honor, Mitohell, J. The jury rendered their verdict in favor of the defendant upon all the issues submitted.

Civil aotioN, tried by Henry, J., upon demurrer, at the Spring Term, 1873, of the Superior Court of BueKe county.

Civil aotioN, tried before Clarice, J., at Spring Term, 1873, of Cabtebet Superior Court. This was an inquiry to ascertain the damages sustained by the defendant, because of the plaintiffs’ taking from his possession a quantity of iron, directed to be had in the decision of this Court in a suit between the same parties, and heard at January Teom, 1883, 68 N. 0. Rep. 17. The iron, when taken from the defendant, was on Core Banks, in said county.

Special PROCEEDING! to obtain a proper construction of the will of Wm. Held: that no estate was given to the executor, but only a power to sell, coupled with a trust for the payment of the debts and legacies, and that the lands descended to the heirs at law, and remained unil divested by the exercise of the power. Here the power, if anything, is to distribute.

INDICTMENT for an affray, tried at Fall Term, 1873, of the Superior Court of Gbeene county, before Clarhe, J. The parties had been tried for the same offense before a Justice of the Peace, and fined. To the indictment found in the Superior Court, they pleaded “ former conviction.” His Honor sustained the plea, and ga.ve judgment, dismissing the charge; from which judgment Solicitor Sherrard appealed.

MotioN to suspend an execution, and correct a judgment as to the calculation of interest, obtained at the preceding Term, heard by Logan, J., at the Fall Term, 1873, of MecklenbuRG -Superior Court. At the Special (July) Term, 1873, the plaintiff obtained a judgment against the defendant upon two notes made in South Carolina, when if was referred to the Olterk to calculate tbe interest and enter up the judgment.

Civil actioN, in the nature of a special proceediNG, heard and determined by Clarke, J:, at Chambers, in CraveN county,, on the 18th day of April, 1873. The opinion of the Court contains a full statement of the facts of the case. From the judgment of his Honor at Chambers, affirming the judgment of Probate Judge, the defendant appealed.

Civm actioN, (for the recovery of real property,) tried' before Watts, Jat the Special (January) Term, 1873, of Cbaven Superior Court. The substantial facts as agreed, are: The premises, the subject of the controversy, prior to the 17th February, 1864, was the separate property of Hetty, the then wife of A. H. Curtis, since dead, and who since his death has intermarried with the defendant, D. C. Carpenter.

Civil proceeding, under chap. 49, Rev. Code, commenced before a J ns tice of the Peace, and carried by appeal to the Superior Court of Iredell county, where it was tried before Mitchell, J., at Fall Term, 1873, of the Superior Court. The action is in the nature of a Forcible Entry and Detainer, to recover the possession of the property of the plaintiff corporation, alleged to be in the hands of Sharpe, the defendant.

Civil actiost, (slander for words spoken by defendant of and concerning plaintiff,) tried before his Honor, Judge Mitchell, at the Fall Term, 1873, of Caldwell Superior Court.

Civil aotioN,. for deceit iu the sale of a naule, tried before Ilenry, J., at the Spring Term,, 1873,, of Buree Superior-Court. On the trial, the plaintiff, as a witness in his own behalf, stated that at the time of making the trade for the mule, the defendant told him the mule was “sound as far as he knew;” but did not tell him the mule had the sweeney and was then well.

Civil action, commenced in a Justice’s Court, and carried by appeal to the Superior Court of Duplin county, where it was tried before Clarice, J., at Spring Term, 1873. The plaintiff, as assignee, brings his suit on the following bond: “ $300. One day after date, we or either of us, promise to pay Wells Poney or bearer, three hundred dollars, for value received. SOUTHERLAND & BLACK, [seal.] DANIEL SOUTHERLAND, [seal.] D-.

INDICTMENT, charging the defendant with larceny and receiving stolen goods, tried before his Honor, Judge Clarice, at Fall-Term, 1873, of the Superior Court of Wilson county. The jury found the defendant guilty generally, on the trial of the indictment, which contained two counts : one for stealing, and the other for receiving stolen goods.

Civil ACTION, motion to dissolve an injunction, board by his 'Honor, Gloud, J., at the Spring Term, 1873, of DavidsoN •Superior Court. 'Upon the application of the plaintiffs to his Honor, Judge !Cloud, at Chambers, an injunction issued to defendants on the -22d of April, 1873, restraining them from selling certain lots belonging to the comity, situate in the town of Lexington, and which the Board had ordered to be sold for certain purposes.

Civil ACTION for the claim and delivery of personal property-tried before Cloud, J., at the Spring Term, 1873, of Stokes Superior Court, to which it had been removed from Forsythe Superior Court. A third party, W. B. Hampton, applied to be made a party defendant, which application his Honor refused, on the ground that he had lost such right by his own laches. From the order refusing the motion, W. B. Hampton appealed.

Ciyi ACTION, for the recovery of the value of a mule, tried before his Honor, Judye Watts, at Fall Term, 1873, of GbaN-ville Superior Court. The plaintiff' alleges that the defendant converted t© his own use, a mule belonging to him, of the value of $200.. Defendant answers with a general denial. At Fall Term., 1873, the Court required the defendant to-give additional security or justify on or before the second day of the next term.

MotioN, by plaintiff's, to amend the- pleadings, heard at Spring Term, 1873, before his Honor, Buxton, J-, of the Supe-perior Court of RichmoND county. The amendment asked, consisted in substituting an amended complaint in lieu of the original, which the counsel represented to his Honor had been filed under a misapprehension of the facts of the ease; the true state of which had come to light since the original was filed.

Civil actioN, commenced in a Justice’s Court to recover the possession of a certain house and lot, tried before Watts, J., at the January Term, 18J4, of Waxe Superior Court.

Crvm ACTION, Trover under the former system, tried at Spring Term, 1873, of Foksythe Superior Court, before Cloud, J. The appeal was taken by defendants, for alleged error on the part of his Honor in admitting certain evidence. All the facts necessary to an understanding of the point decided, are stated in the opinion of the Court.

Civil aotioN, upon an alleged contract to transport cotton, tried before his Honor, Moore, One of the plaintiffs testified, that in September, 1870, he made a contract with one W. W. Pegram, who was then acting as the local agent of defendant at the depot, in Charlotte, for the reception and transportation of cotton at that place for New York, at the rate of $2.78 per bale from Charlotte via Charleston to New York, from that time to the 1st of January, 1871.

Omr. ACTION, to recover possession of i-eal estate, tried before iTourgee, J., at Fall Term, 1873, of Alamakcb Superior Court. 'The plaintiff claimed the land in dispute under a sheriff’s deed, and on the'trial showed a judgment against the defendant and in favor of one Jeremiah Holt, obtained at the December Term, 1861, of the late Court of Pleas and Quarter Sessions, for $150.

Civil action-, motion to dissolve a restraining order, heard by Cloud, J., at the Fall Term, 1873, oí TsaNsylvaNia Superior Court. The facts pertinent to the points decided are fully stated in tlie opinion of the Court. Erom the judgment of the Court below, continuing the injunction to the hearing, the defendants appealed. This was an application for an injunction to suspend the ordinary business of a corporation.

This was a MotioN to bis licuor, Judge Mitchell, at Spring Term, 1813, of Asms Superior Court, for directions as to the application of certain moneys arising from- the sale of land under executions. The facts are fully stated in the opinion of the Court.

Civil actiof, upon an alleged contract, tried before Moore, J., at the Special (July) Term, 1873, of the Superior Court of M'ECklbNrubg county.

Civil action, tried before Waits, J., at the Fall Term, 1873, of the Superior Court of Franklin county, upon the following .agreed state of facte. 1. That the debt sued for by the plaintiff, the amount of which is fixed by the judgtnentin this action, to-wit; $2138.61. was for the necessary and ordinary expenses of the county government. 2.

C vtl vTfON, for the recovery of the possession of land, trie' before Moore, J., at a Special (July) Term, 1873, of the Sup1 ¡<>r Court of MECKLENBURG. O.i ’In* t> ial below, the jury found tlie following facts: Ai a Court of Pleas and Quarter Sessions of Mecklenburg ¿oui u, lie: Ex.■culi • s thereon were regularly issued and rc urned from tern, to v m, until the County Court held for smúJ county, on the-!rh Monday of October, 1866.

The plaintiff had obtained a judgment against the defendants for $1,643.93, and issued a notice to ¡-how cause why a mandamus should notissue to the defendants, compelling the Board to levy taxes, &c. Upon the return of the notice the defendants answered, which his Honor, holding to be insufficient, ordered a peremptory mandamus to issue, from which order defendants appealed.

Civil ACTION, to recover the amount of a single bill, tried before Moore, J., at the Special (July) Term, 1878, of Meck-leNbueg Superior Court. The complaint alleges that the defendants, the Davidsons, signed and delivered to Wm.

Special peooeediNg, before the Court of Probate of Meoio lenbitkg county, to obtain a construction of a will, from whence it was removed to the Superior Court, where the case was heard before Logan, J., at Fall Term, 1873. Matthew Wallace, the plaintiff’s testator, died in 1831, leaving a will, of which the following are the clauses upon which a construction is asked : “3.

Civil ACTION, for the recovery of a Justice’s judgment, tried upon a demurrer to the' complaint, before his Honor, Judge Moore, at the Special (July) Term, 1873, of MeceleNbubg Superior Court. The facts pertinent to the point decided are fully set forth in the opinion of the Court. His Honor overruled the demurrer, and defendant appealed.

<p>MotioN, to amend an execution, heard before Garmon, J.,at the Fall Term, 1873, of Davie Superior Court.</p> <p>All the facts pertinent to the point decided are stated in the opinion of the Court.</p> <p>His Honor being of opinion that he had no power to make the amendment moved for, refused the motion, whereupon the plaintiffs appealed.</p>

<p>A sues B for assisting C to remove from the State, alleging such removal to have been for the purpose of defrauding C’s creditors, of whom A was one; the declaration of C, contained in a letter to A is not evidence against B, unless the complicity of B and C be established aliunde, and such declarations cannot be received to prove such complicity.</p> <p>Because the presiding Judge, after objection, permitted the plaintiff to read the body of a letter which was unimportant and irrelevant, is no reason that he should permit the reading of the postcript which was relevant, upon the ground that when pcvrt of a declaration is received as evidence, the party is entitled to have the whole thereof go to the jury.</p>

Civil. aotioN, for the recovery of a tract of land and for damages for its detention, tried before his Honor, Judge Mitchell, at Fall Term, 1873, of the Superior Court of the county of Caldwell. The following is the case as made up and amended by the counsel of the parties, and as settled by the presiding Judge, and transmitted as part of the record to this Court.

<p>Plaintiff sent his cotton to defendants’ gin house to be ginned; while there, the gin with all the cotton in it was consumed, it not appearing how the fire originated: Held, that the destruction of the cotton by fire was not prima, fade evidence of negligence; and further, it being-shown that the defendants during the possession of the plaintiff’s cotton used ordinary care, they are not liable for its loss.</p>

Civil actioN, to recover damages for enticing away laborers, heard before Tourgea, J., at Spring Term, 1873, of PeksoN Superior Court.

INDICTMENT, for Rape, tried before Albertson, J., at a Special (August) Term, 1873, of Rowan Superior Court. The objection taken to the rulings of his Honor, and the points raised on the trial below, are fully set out in the opinion of Justice Settle. The prisoner was found guilty. Motion for á new trial; motion refused. Judgment and appeal.

Civil, action,, to recover damages for killing a horse, tried-before Moore, J., at the Special (July) Term, 1873, of the Superior Court of MeokleNbukg county.

INDICTMENT for Murder, tried at the Fall Term, 1873, of New Hanover Superior Court, before bis Honor, Judge ltusseU. The prisoner was indicted with two others for the murder' of Willie Carter.. The facts and the evidence are contained in tiie following statement of the presiding Judge, sent to this Court as part of the record.

Civil action, upon a covenant of defendant’s assignor, tried, at Spring Term, 1873, of EdgeooMbe Superior Court, before 3iis Honor, Judge Moore. Held: and is therefore in violation of the United States Constitution, and also in violation of the 12th section of the Bill of Rights of this State, which says private property shall be held inviolate, subservient to public uses only. 2. As to the covenant, executed 29th of July, 1858.

Civil ACTION, an application for an injunction to restrain the defendants from collecting certain taxes, heard before Clarke, J., at Chambers, in Craven county, December 13th, 1873.

Special PROCEEDING, to sell real estate for assets, commenced ju the Probate Court, and thence regularly carried to the Superior Court of PbesoN county, where it was tried before his Honor, Tourgee, J., at Fall Term, 1873. The substantial facts are stated in the opinion of the Court. The jury having found the issues submitted to them in favor of the plaintiff, his Honor gave judgment condemning the land to be sold for the payment of the admitted debts.

Civil actioN, an application for a mandamus, heard 8th September, 1873, before Henry, J., at Chambers, in HeNDEb-SON county. The plaintiff, alleging that the Commissioners of Rutherford county owe the Commissioners of Henderson $2,371.66., apply for a mandamus to compel its payment. Defendants demur for want of jurisdiction. His Honor sustaining the demurrer, dismissed the complaint, whereupon plaintiffs appealed.

Oivid actioN, on a guardian bond, tried at the Spring Term, 1873, of IIkRTfobd Superior Court, before bis Honor, Judge Albertson. The plaintiff declared on a guardian bond for the sum of $3,000, executed by one James Clark, as guardian of plaintiff in 1850, with J. B. Hare and- W. M. Montgomery as sureties. The action ivas brought against W. S. Stephenson, as administrator of James Clark, deceased, John W. Harrell, administrator of W. II. Montgomery, and J. B. Hare.

Civil actioN, in the nature of a bill in equity to surcharge and falsify an account, heard upon a motion to dismiss the same, by Albertson, Jat the Special (August) Term, 1813, of RoWAN Superior Court, to which it had been by consent removed from the Superior Court of Ieedell county.

Cíyil ACTION, originally a special proceeding against the defendants as administrators, for an account, &c., heard by his Honor, Judge Tourgee, on a petition to re-hear, at Chambers in PERSON county, June 10th, 1873. Pinal judgment was given by the Judge of Probate after hearing the merits, from which defendants did not appeal; but in a short time filed his petition to re-hear.

This was a MotioN to set aside an order which was made bj’ the Clerk of the Superior Court of Union county, confirming the sale as to one of the two parts of a track of land sold by the administrator of W. J. Curoton, and setting it aside as to the other.

This was a oivil aotioN brought by the plaintiff alone to recover the possession of a tract of land and damages for the detention of it.

3 'Civil aotiojnt, to restore a lost record and correct a deed, beard before his Honor, Judge Mitchell, at Spring Term, 1878, of the Superior Court of Iredell county.

Civil actiost, tried at the Special (December) Term, 1873, of the Superior Court of Halifax county, before his Honor, Judge Moore. The counsel for the parties agree to the following, as the material facts in the ease: In the summer of 1859, Samuel J. Clark, died intestate and without issue, domiciled in the county of Halifax county, North Carolina, possessed of a large estate, consisting of slaves and other personal property.

<p>A tender of Confederate money to be valid to stop interest should be accompanied with an offer to pay the scaled value of the note or claim sued upon; otherwise, interest will run from the demand of payment, or from the time the process in the action is served.</p>

Civil actioN, an original Bill in Equity, before the adoption of the Code, heard by his Honor, Judge Mitehell, upon a motion to dismiss, at Fall Term, 1873, of Ikkdkll Superior Court. The plaintiff filed his bill in the former Court of Equity of said county in 1866. It was regularly transferred to the Superior Court, in which at the Fall Term, 1872, the death of the plaintiff was suggested.

Civil action-, Special proceeding for the sale of land to pay debts, heard and determined by his Honor, Judge Mitchell, at Spring Term, 1873, of the Superior Court of Ieedsll county.

<p>Oivil Aamsr, creditor’s Jbill against the estate of the defend .ant’s intestate, tried on exceptions to the report -of the 'Commissioner, by his Honor, Jiiclge Moore, at the Special (July) Term, 1873, of Meoklenbubg- Superior Court.</p> <p>At Spring Term, 1869, it was referred to E. A. Osborne, the Clerk of the Court, to report the amount of -indebtedness against the estate of Z. N. Grier, the defendant’s intestate. After advertising for the creditors to .come in And file their claims, the Clerk made a report, which was excepted toby the-plaintifis, because be had included a debt, as duly owing by the-estate of Z. N, Grier, tbs intestate, to R. E. Davidson, which-should not be a charge against said estate, for the reason, that the note offered in evidence by said Davidson was payable to Jos. W. Wilson and Wm. Johnston, as executors of Wm. Carson and never accepted by them, and that the same was never intended by the makers of" the note to operate as an indebtedness on their part to said Davidson.</p> <p>Aud farther, that the debt reported as owing to C. Dewey, was compromised at a sum greatly less than the amount reported by the Clerk, and that the parties interested therein have no right to claim a dividend on the nominal amount of principal and interest on said debt as reported.</p> <p>It was referred back to tlie Clerk to report the facts in regard to the debts excepted to, who found the same and reported as-follows:</p> <p>“ The note of $1,780 on W..W. Elms, and Z. N. Grier as-his surety, was made payable to J.. W.. Wilson and Wm. Johnston, executors of Wm. Carson, or order, aud dated Sept. 30th, 1850 ; the consideration for which was the interest of R. F. Davidson in the stock of goods owned by the then firm of W.. W. Elms & Co., of which B. F. Davidson was then a member. That the note was drawn by Elms payable to Wilson and Johnston, executors as aforesaid, in order that it might be used by said Davidson as a credit on a note which he, Davidson, owed to said executors, which accounts for its not having been drawn payable to Davidson himself. That Davidson commenced a suit on the note in fhe Superior Court against said Elms & Grier in 1860, and that a suit in equity was commenced on the same at Fall Term, 1879, the former being brought i,n tbe name of Wm. Johnston and J. H. "Wilson, executors of Wm. Carson, to the use of R. F. Davidson, against said Elms & Grier. That upon the death of Z. N. Grier, his-administrator, Thomas Grier, the defendant herein was duly made a party to said suits, and that at the Spring Term, 1870, of the Superior Court of said county, the suits were compromised according to terms filed, to wit: that Davidson was required to pay all the costs of both of the said suits, and be allowed to prove bis claim against the estate of the said Z. Nf Grier, to the extent of the said note, and that he, Davidson, lias paid the costs in both said suits. It was also reported as a fact in the cause, that J. H. Wilson and Wm. Johnston, executors of said Wrn. Carson, refused to accept or receive said note as a credit upon Davidson’s indebtedness to the estate of their testator, and that said Davidson held said note under the impression and belief that the makers thereof were bound to him for its payment. The note was duly presented and proven before the Clerk, within the time prescribed by the order of the Court for the crediditors to come.”</p> <p>Upon the foregoing facts, his Honor gave judgment permitting the said note of R. F. Davidson to be proved against the estate of the said Z. N. Grier, from which judgment the plaintiffs appealed.</p>

Civil ACTION, and application for an injunction, heard before Watts, J., at the Fall Term, 1873, of the Superior Court of FrANKLIN county. Upon the trial below, the jury found all the issues submitted to them in favor of the plaintiffs. Judgment and appeal by defendants. 'The facts necessary to an understanding of the points decided, are stated in the opinion of the Court.

Civil. ACTION, motion to confirm a report of certain referees, tried before Albertson, J., at the Special (July) Term, 1873, of BüNCOmbe Superior Court. At Spring Term, 1872, the matter in controversy being an account against the defendant due the firm of B. J. & J. B. Alexander, of whom the plaintiff is assignee in .bankruptcy, was referred by order of the Court to E. J. Aston and A. T. Suramey, who, at the Special (August) Term, 1873, made a report.

Civil actioN, on two promissory notes, tried before Moore, J., at the Special (July) Term, 1873, of the Superior Court of Mecklenburg county.

CiviL ACTION, (Ejectment under our former practice,) tried before his Honor, Mitchell, J., at the Spring Term, 1873, of of the Superior Court of Iredell county. The facts pertinent to the points decided, are sufficiently stated in the opinion of the 'Court. Under the charge of his Honor below, the jury returned a verdict for the plain tiff. J udgment. and appeal by' defendant.

This was a civil actioet tried at the last tenia of Edgecombe Superior Court, before hie Honor., Judge Moore, when the plaintiff had a verdict and judgment, and the defendants appealed. The facts are fully stated in the opinion of the Court. 1. Statute of Limitations, O. O. P., see. 16, application of, suspended to January 1, 1870, 65 N. C., 74. Action on sealed instrument against principal thereto, must be brought in ten .years. C. C. P., secs. 3L, 32.

This was a civil actioN tried before Albertson, J., at Bpring Term, 1873, of Beetie Superior Court. The actiou was brought by the plaintiffs as assignees of a penal bond of the defendant given to one Lewis T. Bond, to recover the residue of the moneys due thereon and ior foreclosure of a mortgage executed at the same time, to secure the payment of the bond.

Civil AotioN, being a Motion to dissolve an injunction, heard before his Honor, Poole, Jduring the Fall Term, 1871, of the Superior Court of CueeituoK county.

PetitioN filed in this Court to rc-hear a decree, made in a certain suit, at January Term, 1869, wherein the petitioner was plaintiff, and thé defendant, David.Hinton, was defendant. The facts are fully stated in the opinion of the Court.

<p>Cmu actioN, on a guardian bond, tried by his Honor, Judge Mitehell, at the Fall Term, 1873, of Catawba Superior Court.</p> <p>The facts, upon which the decision in this Court rests, are fully stated in the opinion of Justice ByNum.</p> <p>Both plaintiff' and defendant, being dissatisfied with the rulings of his Honor on the trial below, appealed.</p>