Volume 71 — North Carolina Reports

<p>Special Peoceedieg, to sell real estate for assets, filed in the Probate Court of Cabteeet county, and thence carried by appeal before Clarice, J., and heard at Chambers January 2d,, 1874</p> <p>The petition, praying the sale of six acres of land situate near the town of Beaufort, belonging to the estate of the late Jos. B. Outlaw, was filed June 8th, 1870, and regularly served on the defendants, interested as heirs at law. On the 2d of January, 1871, a decree of sale was obtained. January 16th, 1872, Wm. Gf. Brinson, public administrator of Craven county, files ■the following record of the Probate Court of Craven county^ to wit:</p> <p>•“ State of North Caroliha, ) Peobate Court,</p> <p>Craven County, f Newbern, July 20th, 1870.</p> <p>In the matter of Wm. P. Mitchell, administrator of Joseph •Outlaw.</p> <p>William P. Mitchell, administrator of Joseph B. Outlaw, ¡having failed to renew his bond and render his annual account, at the time required by law, after service of notice to do so upon him; on motion, it is ordered and adjudged, that the said William P. Mitchell be removed as administrator of the said Joseph B. Outlaw, and that his letters of administration be revoked.</p> <p>It is further ordered, that letters of administration be issued to William Gf. Brinson, public administrator, and said estate is hereby placed in his hands.</p> <p>I. E. WEST, Probate Judge.”</p> <p>Whereupon, the said public administrator was made a party to this proceeding. And under the foregoing order of the Probate Court'of Craven, he, the public administrator of that ■county, claims the right to represent the estate of Joseph B. Outlaw in the future proceedings in this case.</p> <p>To this Mitchell, the petitioner, replies :</p> <p>1. That he has not been removed from the office of administrator de bonis non, with the will annexed of Joseph B. Outlaw, deceased, as sec. 89 et seg. of chap. 113, laws of 1868~’69 ■have not been complied with in any particular; and that he is •still the administrator, &c.; but if he had been removed, that</p> <p>2. The public administrator of Craven county, as such, has not and cannot under any circumstances, have jurisdiction, and no Court can give him jurisdiction in this, or any like case. That there are but three cases pointed out in the law, where he can get letters of administration, and that this case is not one of these. Laws of 1868-’69, chap. 113, secs. 6 and 92. Further, the public administrator, as such, cannot have jurisdiction of an estate, where original administration was granted prior to July 1st, 1869.</p> <p>For the public administrator, it was insisted in • answer to this, that the petitioner has been removed and he, himself, appointed in his place, by the only Court having jurisdiction of the matter, and that this Court, (the Probate Court of Car-teret,) is bound to. give full faith and credit to its properly authenticated record.</p> <p>In February, 1872, the petitioner reported that in accordance with a former order of the Court, he had sold the land for $87.50, which was well secured, and that the sum was a reasonable price for the same. The Probate Judge, not recognizing the public administrator of Craven as the legal, representative of Joseph B. Outlaw, confirmed the report of the petitioner, Mitchell, from which order Brinson, the public administrator, appealed to the Judge of the Third District.</p> <p>His Honor, Judge Clarke, upon a full consideration of the case, was of opinion that the Probate Judge of Craven had original jurisdiction of the case, and had authority under the law to remove the administrator for adequate cause ; and that in the case presented, the public administrator of Craven was the true and proper representative of the testator, Joseph B. Outlaw. From this judgment, the petitioner, the present plaintiff, appealed.</p> <p>That the only question in the case is as to the right of W. €r. Brinson, the public administrator, to displace, and to substitute for Mitchell, the plaintiff.</p> <p>I.The removal was improper:</p> <p>1. It was- not a case within the provisions of Battle’s Revisal,.</p> <p>ch. 45, secs, 140, 141 and 142. '</p> <p>2. There should have been a citation or other proceeding, bringing the plaintiff before the Probate Court, and giving' him opportunity to show cause. Williams Executors, 317.</p> <p>3. The right to remove, given in O. C. P., 470, does not dispense with those proceedings giving, the party a day in Court.</p> <p>II. The public administrator is entitled to letters of administration only in the three cases enumerated in Battle’s Revisal, ch, 45, sec. 22.</p> <p>III. The entire law in reference to appointment of public administrators, does not apply to administration prior to July 1, 1869. The petition shows that the administration was granted in December, 1867. Acts oí 1869-70, ch. 58, sec. 1. (Batt. Rev., ch. 45, sec. 58.)</p> <p>The judgment of the Superior Court was therefore erroneous'.</p> <p>As to the jurisdiction and power of the Probate Judge to’ remove the administrator Mitchell, see C. O. P., sec. 479.</p> <p>If Mitchell had been removed, the Court had power to appoint some other person- to succeed him in the administration of the estate. Chap. 113-, sec. 92, laws ’of 1868-69, sec. 6 ebap, 113) laws 1868-6%.applies only where there has been no administration upon an estate.</p> <p>In our case an administaator has been, removed.and another appointed to succeed him.</p> <p>Mitchell the plaintiff has had his day in Court. See the ' transcript of the record of the Probate Court of Craven county in the statement of the case. Brinson has been, made party as the case shows.</p>

Civil actioN, for the delivery of two bales of cotton, tried before bis Honor, Judge Watts, at the Spring Term, 1874, of the Superior Court of Nash count}'. . The plaintiff introduced as evidence the following instrument : “ State of North CakoliNA, 1 Nash County, j This deed witnesseth ; That whereas John A. Harrison & Son, of Castalia, Nash county, have agreed to make HtBTP*10 to Bon.

<p>In answer to evidence of contradictory statements, and'for the purpose of corroborating the testimony of the witness, whose veracity has been thus impeached, evidence of the strict integrity of such witness, and of his scrupulous regard for truth is admissible,</p> <p>{March v. Bm'rell, 1 Jones, 339; State v. Cherry, 63 H. Q, Rep. 493, cited and approved,)</p>

Devisavit vel NON, as to a paper writing propounded in the Probate Court of Randolph county, and from thence removed to the Superior Court of AlamaNoe, and tried before' his Honor, Judge Tourgee, at Spring Term, 1874. The paper propounded as the last will and testament of' Jane Brown, was caveated by the defendants, certain of her-next of kin, upon the following grounds, to wit: 1.

Civil actioN, to recover possession of certain real estate fried at the Spring Term, 1874, of the Superior Court of Da-yidsoN county, before his Honor, Judge Qlo%td. The plaintiff showed title from the State to one J. M. Lisle; then a deed from Lisle to one F. M. Cam man ; then an original attachment against Caminan, which was duly levied on the premises, and after proper proceedings had thereon, a final judgment in said attachment, and a ven. ex. issued to sell the land.

Civil aotioN, commencing in a Justice’s Court, for the recovery of a bond, and carried by appeal to the Superior Court of Wayhe County, where it was tried before Buxton, J., at the January (Special) Term, 1874, upon the following case agreed; The complaint of the plaintiffs was on a sealed instrument, purporting to be a bond, and of the following tenor ; “ Six months after date, we or either of ns promise to pay to John Lewis or James Parker, agents, by agreement with the…

Lanier purchased another tract adjoining. The sale oí' the land was regularly confirmed, the-purchase money paid and deeds made to the purchasers. Afterwards a difficulty arose between Jordan and Lanier concerning the removal of a division fence, and Jordan made-an application to his Honor, at Chambers, founded upon affidavit, for an order'restraining Lanier from taking down and removing the fence.

This was a petitioN by the plaintiff, as administrator, to sell the land of his intestate for assets, filed in the Probate Court of Nash county, in which the sale was refused, when the administrator appealed to the Superior Court of said county, where it was heard at Spring Term, 1874, before his Honor Judge Waits.

Civil actioN, for the recovery of certain- coupons and for a mandamus, tried before his Honor,, Judge B-uxion, at the Spring Term., 1-873, of ÁNSON Superior Court.

Civil aotioN, tried before his Honor, Judge B'ttmton, at the Special (January) Term, 1874, of the Superior Court of Wayne county.

Civil aotiok, returnable to the Spring Term, 1874, of Davie Superior Court, and beard before Cloud, J., upon a motion in the cause. In 1873 one James Gray died, leaving a last will and testament, which was duly admitted to probate, the defendant qualifying as executor thereof. The plaintiffs instituted this action to recover a legacy under said will, and on Wednesday of the return term moved to be allowed until the following Friday to file their complaint.

IndiotmbNT, robbery from the person, tried at the Spring Term, 1874, of Caswell Superior Court before his; Honor, Judge Tourgee.

This was an ORDER on the defendants in favor of the plain* tiff, made by Tourgee, J., at Pall Term, 1873, of Caswell Su* perior Court, in the following words, to wit: “ Superior Court, \ ^ T Caswell County. \ le™’ 187d' It is ordered that the Commissioners of Caswell county allow and pay to Henry P. Brandon, Clerk of said Court, fifty dollars for his services in attending upon said Court at Spring and Pall Terms, 1873.

Civil aotioN, for the recovery of real estate, tried by His Honor Judge OlarJce and a jury, at the Fall Term, 1873, of JONES Superior Court. The defendants in their answer, relied upon a verdict and judgment still in force, heretofore rendered in the said Superior Court between the same parties and for the same cause of action, introducing the transcript of said judgment, &c., to prove the identity of the land, and that the title to the same was determined in the form§r suit.

<p>The creditor of. a deceased ancestor is entitled when there is no personal estate, to the whole of the land descended, or, of what is instead of it, until his debt is paid.</p> <p>When some of the heirs of a person so indebted have sold the lands descended to- them, two- years after administration granted, they are liable to the-creditor for the whole of the price received and not for , their aliquot shares of the debt itself;. and those who still retain their several shares are liable for the present value of them.</p> <p>The creditor is. entitled to the rents and profits actually received by the heirs from the lands descended. If the land has been sold the interest is the profit; and if the heir still retains his share, he is equally liable for the profits.</p> <p>{Moore v. Shields, 68 N. 0, Rep. 327, cited and approved.)</p>

MotioN to revive a dormant judgment, and for leave to issue an execution, before Clarke, J., at the Spring Term, 1874, of the Superior Court of Chayen County.

Civil ACTION, for the recovery of real estate, tried before Glarke, J., at Spring Term, 1874, of the Superior Court of Carteret county. The suit was originally brought against J. J'. Pellitier alone, E. W. Pelletier being admitted to defend, on his own motion, at June Term, 1872, claiming, as he did, an interest in the lands described in the complaint and sought to be recovered by the plaintiffs.

<p>Tha Act of 18o4-’55, empowering the Commissioners of the town of Wilmington to establish streets in said town and for other purposes, confers upon the present Commissioners of that place full authority to assess the benefit to be derived to the owners of property from the construction of pavements in front of their houses.</p>

INDICTMENT, burglary, tried at tbe Spring Term, 1874, of the Superior Court of Davie county, before his Honor, Judge (Jl&ud. The prisoner was charged with burglariously entering the house of the prosecutrix, Amanda Ellis, in one count, with intent to steal the “goods and chattels,” and in a second count, a “ pocket book,” of the property of the said Amanda Ellis.

INDICTMENT, for murder, tried at Fall Term, 1873, of the Superior Court of Washington county, before his Honor, ■Judge Moore. The prisoners were charged with the murder of Alvina Garrett, a girl of fourteen years of age; on .the trial, Lucy •Stanley was acquitted.

INDICTMENT for Arson, tried before His Honor, Judge Bum-ton, at tbe Fall Term, 1873, of Sampson Superior Court. The prisoner was charged in an indictment of six counts with burning an out-house of the prosecutrix, Susan A. Andres, who testified: That she was the widow of Elisha J. Andres, who died in July, 1873, leaving her and four infant children. Her husband also left a daughter, by a former marriage, Hannah, the’ wife of Robert Melvin, all of the children living.

<p>INDICTMENT for larceny, with a count for receiving stolen goods,, tried before his Honor, Jwdge Logan, at the Spring Term, 1874, of the Superior Court of MecKlenburg county.-,.</p> <p>The defendant was indicted with two others (not on trial) for stealing ten kegs of gunpowder from W. W. Grier and another, and in another count for receiving ten kegs of gunpowder, the property of W. W. Grier and another, knowing the same to have been stolen.</p> <p>Eor the State, one Tom Caldwell swore that he was with the defendant, aiding^ and assisting him, when he stole the powder, and that he, the defendant, was to give him one dollar ger keg for his assistance. The defendant paid him in cash five dollars, and gave him an order on the store of Elias & Cohen for a pair of boots in payment of the remainder. Defendant objected to the speaking of this order without it was produced. One Bethnne, a clerk in the store of Elias & Cohen, swore that he did have an order from the defendant for a pair of boots to Tom Caldwell, but that he had either lost or mislaid it, as he could not find it in the place or on the file, where such orders were usually kept. Defendant again objected, insisting that the loss of the paper was not sufficiently proved. The State then examined the magistrate before whom the preliminary investigation took place, who stated that the order for the boots was produced before him and duly proved. Defendant objected to this evidence, and the Court ruled that the objection was well taken. In the argument the Solicitor spoke of this order being duly proved, when it was objected by defendant. His Honor did not interfere with the comments of the Solicitor nor with the reading of the order.</p> <p>It was further in evidence that one Henry Caldwell purchased of vthe defendant a keg of powder, of the brand and mark described by the owner of that alleged to be stolen. That the defendant gave him an order on one Turner for the powder. The speaking of this order being objected to, a paper was shown to the witness, who being unable to read, could not identify it. A witness was called who swore that the writing of the paper resembled the defendant’s, but that he could not say for certain that it was. No further evidence was offered on this point, and the paper was not given to the jury as evi-deuce, but was Read by the prosecuting officer and commented on as the order of defendant. To this argument the defendant objected, asking the Court to stop it, but his Honor declined.</p> <p>The State having sworn and tendered several witnesses, the defendant asked leave to cross examine them. This was refused, the Court holding that by the examination of such witnesses the defendant made them his own.</p> <p>The jury returned a verdict of guilty. Eule for a new trial granted. Argued and discharged. Defendant then moved to arrest the judgment, for that the property was alleged to be Grier’6 and another, when the evidence showedbhat it belonged to Grier & Alexander, a firm well known to the grand jury. Motion refused, and appeal by defendant. _</p>

Civil actioN for claim and delivery of a certain cotton gin and press, tried at the Spring Term, 1874, of the Superior Court of ChowaN county, before his Honor, Judge Albertson, and a jury. In August-, 1870, the plaint A' conveyed a tract of land to Pruden, in trust to secure the payment of certain debts.

Civil ACTION to set aside a mortgage, and in the meantime for an injunction, heard upon motion to dissolve the injunction, before Tourgee, «7i, at Chambers, in Guilpobd eounty, March, 1874.

INDICTMENT for refusing to lay off a personal property exemption, heard before his Honor, Judge Bussell, at Spring Term, 1814, of New Hanover Superior Court.

Civil ActioN commenced in a Justice’s Court, and carried by appeal to'the Superior Court of Wake, where it was tried before Tourgee, J., at the January (Special) Term, 1874. It was agreed on the trial below that the defendant and one Geo. W. Blacknall, the surety on the note sued upon, were both adjudicated bankrupts, upon their own petitions, and received their discharges prior to the commencement of this action.

Civil actioN for the recovery of real estate, tried on demurrer before Clarlie J., at the Fall Term, 1873, of Wilsok Superior Court. It was alleged in the complaint that the plaintiff was a corporation duly organized under an act of our General Assembly, ratified 12th December, 1863; that it was entitled to the possession of certain real estate in the town of Wilson, N. C., and that the defendant withholds possession thereof.

<p>Civil aotioN for the recovery of a loss by fire, tried by His Honor, Judge Moore, at Spring Term, 1874, of TteRell Superior Court.</p> <p>Plaintiff brought this action upon a policy of insurance issued by defendant, against the loss by fire of plaintiffs store and stock of goods.</p> <p>The answer admitted the execution of the policy, but alleged that the contract of insurance was subject to other terms, conditions and limitations and restrictions, than those set forth in the complaint, viz: To certain conditions and warranties that were contained in the application of the plaintiff, a copy of which was annexed to the answer.</p> <p>One among the issues submitted by the plaintiff to the j ury was the following to wit:</p> <p>Was the said contract of insurance subject to other terms, conditions, limitations and restrictions, than those set forth in the complaint; and if so, does the written and printed paper writing attached to the answer contain them? (The said condition, &c., are noticed and sufficiently set out in the opinion of the Chief Justice.)</p> <p>The defendant introduced the application as evidence, and proved its execution by plaintiff, and moved that the plaintiff be called. Upon motion of plaintiff’s counsel, the Court permitted him to amend his complaint by setting forth the application, and making it a part thereof. Immediately on amending his complaint the plaintiff submitted his case to the jury.</p> <p>Before the complaint was amended, the plaintiff stated (in answer to a question of his counsel) that he had complied with all the conditions of the policy of insurance; and before he left the stand, (upon his cross-examination,) the original application for insurance was handed to him, and his signature thereto acknowledged; he also stated that he had not taken an inventory of stock after 1st January, and that he expected, when he entered business, to keep up the annual average value of his stock at $4,000, but he did not state that he had done so.</p> <p>The defendont asked the Court to charge that there was no evidence that the plaintiff had complied with and performed all the warranties as contained in his application ; and that as the averments and performance of these warranties are conditions precedent to the right of action, the plaintiff cannot recover.</p> <p>His Honor, the case states, refused the instruction because there was some evidence as before stated. Defendant excepted because the evidence alluded to was as to the conditions of the policy, and before the application had been set out by plaintiff in his complaint; and inasmuch as there was no evidence offered after the amendment, as to the performance of the conditions and warranties, the plaintiff could not recover.</p> <p>In the application, plaintiff represented the store to be worth in cash, $700. It was in evidence on the part of the plaintiff, that the store was built by him on leased ground, and that his lease was for two years, with the privilege of five. A witness introduced by the plaintiff' stated that if he desired to go into business at the place, he would give $700 for the store. On his cross-examination, this witness stated that he was not a merchant, nor did he know the cost of building houses.</p> <p>The mechanic who built the store was introduced by defendant, who stated the actual cost of building the same, everything included, was $226, and that he would replace it for that amount, or for $250 at the outside. This evidence was corroborated by two other mechanics.</p> <p>Among the issues submitted to the jury were the following:</p> <p>"Was the cash value of the store $700, and the cash value of of the stock $3,500 at the time of the insurance ?</p> <p>What was the loss to the plaintiff by reason of the fire %</p> <p>Defendant asked the Court to charge that under the contract the company had the right to rebuild, and that therefore the cash value of the store, within the legal intendment of the contract of insurance was, what it was worth to rebuild it; and that in estimating the value of the store the jury could not take into consideration the location and favorable circumstances for trade, for that is outside of the cash value, as the fire can not destroy location, &c.; and that if the jury believe the mechanics who say that the store can be replaced for $250, the plaintiff cannot recover.</p> <p>T-Tik Honor refused so to charge, but instructed the jury that in estimating the cash value of the store, then and there, the location and favorable circumstances for trade, should not be considered, but find what it would have brought in cash. Defendant excepted.</p> <p>The Court was further asked by defendant to charge that from the application it appeared that an inventory was to be taken every three months by the plaintiff; that it was taken on the 1st January, 1872, and that the fire occurred more than three months from that time, to wit: on the 4th April, 1872; and inasmuch as plaintiff swore that he made no other inventory than the one in January, he did not comply with the conditions set forth in the application, and could not recover. Instructions refused by His Honor, and defendant again excepted.</p> <p>To the first issue, the jury found the value of the store to be as stated in the application : And to the second that the loss was $3,062.33, of which $462.35 was the value of the store and $2,600 the value of the stock. Judgment in accordance with the verdict, from which the defendant appealed.</p> <p>It is also stated in the case sent up that the j ury “ responded affirmatively to the following issues in addition to those heretofore set forth, to-wit: Has the plaintiff complied with and performed all the conditions, warranties and limitations and restrictions embraced in the contract of insurance.” The jury also found that the inventory was not taken as required in the policy. Other issues were submitted, but were omitted in the statement of the case, as there were no exceptions taken to the finding of the jury thereon.</p>

Civil actioN in the nature of a scire facias, beard before Mitchell, J., at the Spring Term, 1874, of the Superior Court of Ikecdell county. Defendant moved to dismiss the plaintiff’s action for want of an undertaking for costs. Motion overruled. He again moved to dismiss for want of a summons and complaint in the name of the State.

Civil actioh, to enforce a mechanics’ lien, originally brought before a Justice of the Peace, December, 1871, and heard by Watts, J., at the February (Special) Term, 1873, of Ceavbh Superior Court. The following are the facts as settled- and signed by the counsel of the parties, plaintiff and defendant. The lien originally was for $346.43, and was duly registered in the office of the Clerk of the Superior Court at that amount.

Civil actiON, application for relief, in nature of a sai. fa., beard by his Honor, Judge Buxton, at Spring Term, 1874, of HaeNett Superior Court. The facts as stated by the presiding Judge and transmitted to this Court are: “ The plaintiff had recovered a judgment in Harnett Superior Court against John C. Williams, the testator of the defendants, the executors, in his lifetime, on the 9th August, 1869, which was duly docketed in the offiee of said Court on the same day.

Issue of Devisavit vel NON, tried before Buxton, J., at Spring Term, 1874, of IIaeNEtt Superior Court, to which it had been removed from the Superior Court of Sampson county. Pharaoh Lee, the alleged testator, was an aged white man, who lived and died unmarried in the county of Sampson.

IndiotMent EOR Laroeny, tried at the Spring Term, 1814, of Rowan Superior Court, before Oloud, J. The defendant was charged with stealing certain bills of our national currency, United States Treasury notes and fractional currency notes.

<p>There is no provision of the law requiring the Clerk of this Court to certify to a Court below the opinion as distinguished from the decision of a case.</p>

Civil action for the recovery of two town lots, triech before* AZbertson-, JT, at the Fall Term-, 1873-, ofj PlBB The following- is- the ease settled1 and* sent up- to- this- Court by his Honor, the presiding Judge r The plaintiff claimed the land lying between Church street and the river, and north of the lots Nos. 151 and 15. In support of the title of the plaintiff, a private act of the Governor and Council'and* Assembly, ratified 28-th.

Civil actioN against the County Commissioners commenced in the Court of a Justice of the Peace and tried by Hmsell, J., at Chambers in New IIaNOVEr county, January 13, 1814. It was admitted on the trial that the plaintiff is the Solicitor for- the State in the 4th judicial district, and that he prosecuted the action in which the account for fees herein sued for to conviction.

Civil aotioN tried at the Spring Term, 1874, of ChowaN Superior Court, before his Honor, Judge Albertson. This action, for the recovery of a penalty under a town ordinance, was brought at first in a Justice’s Court, and judgment rendered against the defendants, who appealed to the Superior Court.

Motion to set aside a j ndgment, heard by Moore, J., at the Eall Term, 1873, of Maetin Superior Court. At_Term, 18 — , a judgment was entered in favor of the defendant against the plaintiff. Thereafter and within the year, the plaintiff gave notice, under sec. 133 of the Code, of a motion to be made in this Court to set the judgment aside..

MotioN to permit a sheriff to amend certain returns, heard and determined by His Honor Judge Russell, at Fall Term, 1873, of DupliN Superior Court, The plaintiffs after notice, moved that the-Sheriff of Duplin* county be permitted to amend his returns on certain writs of fieri facias and ven. exponas, which had heretofore issued at the instance of the plaintiffs against the defendant, and under which a sale had been made.

Civil actioN as to the construction of á will, submitted -to jBuxton, J. at Chambers, in Cumberland-County, March 17th, 1874. CASE A@KEEI>. The following is- a case agreed between the plaintiff and defendants, and submitted in accordance with the provisions of title XIY, chap. l,.sec: §15;,of the Code of Civil Procedure,, for his decision of the questions presented.

PROCEEDING in bastardy, commenced in a Justices’ Court, and returned to the Superior Court of JaoesoN county, where it was tried before Cannon, J., at Spring Term, 1874. Held: nor was the defendant recognized for his appearance at Court. Afterwards the magistrate returned the warrant and examination to Court, and a capias by order of the Solicitor issued, and the defendant was arrested.

<p>Civil, actioN on a guardian boud, tried before Logan, J., at the Fall Term, 1873, of Cabareus Superior Court.</p> <p>The defendants pleaded the statute of limitations, and the facts necessary to an understanding of the points decided are fully stated in the opinion of the Court.</p> <p>On the trial below, the jury returned a verdict for the plaintiff, and his Honor being of opinion that the statute did not bar, gave judgment accordingly. Defendants appealed.</p>

Civil actioh for the recovery -of real property, and damages for withholding the same, tried before Buxton, J., at the January (Special^ Term, 1874, of WaVNs: Superior Court. The material facts are fully stated in the opinion of Justice RoDMAN, On the trial below there were a verdict and judgment in favor of the plaintiff from which defendants appealed.

PetitioN on the part of the defendants-to rehear the decree-made in this cause, see Etheridge v. Vernoij, TO N. C. Rep.,. 7115, at the last term of this Court. The grounds of the petition are fully set forth in the opinion-, of the Court.

MotioN to amend a judgment, heard by Cloud, J., at Spring Term, 1874, of Davie Superior Court. This was a civil action brought upon a promissory note under seal, due the plaintiff as guardian of his ward (who arrived at full age on the 1st of November, 1863.) At Fall Term, 3873, the plaintiff recovered judgment, but in the hurry of business the interest was not computed by the attorneys.

<p>Civil ACTION for the recovery of land, tried before Clarke, J., at Spring Term, 1874, of the Superior Court of JoNes.</p> <p>This was an action to recover a certain tract of land described in the plaintiff's complaint. It is admitted that the land claimed by the plaintiff is the same land in the possession of the defendants, both plaintiff and defendants claiming under one Daniel Perry. Plaintiff introduced a judgment in favor of Rachel Jones against Daniel Perry, E. B. Harrison and Jacob F. Scott; also execution against same parties corresponding with said judgment, a levy on said land, a return of the sheriff of Jones county that he had sold said land to the plaintiff, and a sheriff’s deed for said land to plaintiff. This deed recites that by virtue of an execution in favor of Rachel Jones against Daniel Perry alone, one of the defendants in the above mentioned judgment and execution, &c.</p> <p>His Honor being of the opinion that as the sheriff’s deed did not correspond with the judgment or execution, and that no execution was produced corresponding to the specification' of the deed, the plaintiff had no title. Plaintiff submitted to^ a non-suit. Judgment and appeal;</p>

<p>Civil action against the defendant, Rousseau,- as County 'Treasurer of Wilkes county, commenced in a Justice’s Court, from whence it was carried by appeal to the Superior Court of Wilees, where it was tried before Mitchell, c/1, at Spring Term, 1874.</p> <p>The-facts, -so far as are necessary to an understanding of the -opinion, are as follows:</p> <p>This action was begun before a Justice of the Peace against the defendant, Rousseau, Treasurer of Wilkes county, and the sureties upon his official bond for the year 1870. It was admitted that Rousseau was the treasurer, and the execution of the bond by himself and the defendants as his sureties, in the sum of-'$12,000 was also admitted.</p> <p>The action was brought upon a county order for $125.80, •which was the sum claimed for damages by reason of the ¡breach of the bond.</p>

Civil actioN, trespass to personal property, tried before his Honor, Judge Clarke, at Fall Term, 1873, of LeNoie Superior Court. All the facts .necessary to an understanding of the case are fully stated in the opinion of the Court. On the trial below, there was awérdict and judgment for the ■defendant, from which judgment plaintiff appealed.

INDICTMENT for selling spirituous liquor on the day of election, tried before Cannon, J., at Spring Term, 1874, of the Superior Court of Clay county.

INDICTMENT for forcible trespass and assault-, tried at Spring Term, 1874, of Wabben Superior Court, before his Honor, Judge Watts. On the trial below the defendants were found guilty, and some fined, others imprisoned. The case sent up states, “ From this judgment the said Warren Dixon,” and others — naming' them — “ pray and appeal to the Supreme Court, and it is allowed.” The said defendants take the oath of insolvents.

Oiy.il. ACTION to enforce a mechanics’ lien, commenced in a Justice’s Court against the present defendant and one Charles Bray, and from thence removed by recordare to the Superior Court of Graven county, where-itwas tried before Clarice, J., at Spring Term, 1874.. The facts are fully stated in the opinion delivered by Justice Reads. Below the' plaintiff had judgment, from which defendant appealed.

INDICTMENT, forcible trespass, tried before Waits, t/1, at Spring Term, 1874, of Granville Superior Court. On the trial below the jury found substantially the following facts : The prosecutor had in his possession and claimed a certain cow, when the defendants came to his hotise and McAdden claimed the cow to be his prooerty, asserting his purpose to-' take possession.

Civil aotioN for the recovery of a certain debt by attachment, tried at the Spring Term, 1874, of Halifax Superior Court, before his Honor Judge Watts. The only question raised in the case was as-to the sufficiency of the affidavit, and the facts relating to which are set out fully in the opinion of,the Court. His Honor, on the trial below, held the affidavit insufficient, and gave judgment accordingly. From this judgment plain-tiff appealed.

Civil aotioN to recover a book account, commenced in a Justice’s Court and carried by appeal to the Superior Court of RobesoN county, and tried before Clarke, Ui, at the Special (January) Term, 1874. On the trial below the plaintiff offered himself as a witness to prove the sale and delivery of the goods, the subject of the action, to the defendant Rozier’s testator, contending that he was authorized to do so under the book-debt law. Defendants objected.

PetiíioN for a eertiorari to be directed . to ■ the Judge and Clerk of the Superior Court of CeaveN county, to remove a judgment anokeertain,proceedings in the case to this Court- It is stated in the petition that the plaintiff obtained a judgment against the petitioner, the defendant, as administrator, from which he desired to appeal, but was unable to give security, and for that reason h'is Honor refused to grant it.

Civil ACTION for tbe recovery of certain land, tried at the December (Special) Term, 18-73, of G-uileoed Superior Court, before his Honor, Judge Henry,. Upon the trial below, under agreement of counsel, his Honor found the facts established by the evidence, which, so far as-they are material to the decision of this Court, are substantially as follows: In 1868, one Johnston, a constable, obtained two judgments before a Justice against the defendant, Meredith. On the 27th.

PetitioN to rehear a decision of this Court in the same case, made at the last term, praying that the judgment then rendered be altered, &c. The ground upon which the petition is filed, are fully stated in the opinion of Justice Reade.

PetitioN to rebear the decision in the same case, made at the January Term, 1873, of this Court, and reported in 68 N. 0. Rep., 220. The grounds upon which the rehearing is asked, and the facts pertinent thereto, are stated in the opinion of Justice Bynum, and the former report of the case above alluded to.

Civil actioN to recover the value of certain stock, tried afc the January (Special) Term, 1874, of WaKe Superior Court, before his Honor, Judge Tonrgee. Certain hogs and other of his stock, the plaintiff alleged, had been killed on the railroad of the defendant by the cars and engines. It was in evidence that the hogs were killed at various times at the defendant’s warehouse, to which they had been attracted by the drippings of molasses on the track from the cars.

<p>An administrator is not required to insure the estate of his intestate; hut he is required to he honest, faithful and diligent.</p> <p>If an administrator retains the, funds of his intestate to meet the exigencies of his office, or to discharge the debts against the estate, when established, or because there are none within the jurisdiction of the Court authorized to receive it, he is not only permitted but encouraged to invest such funds in interest bearing securities.</p>

Civil aqtiqN against the defendant as executor de son tort, for the recovery of a mule, tried before Logan, J., at -Spring Term, 1874, of MecKleNbueg Superior Court.

<p>Where a plaintiff declares for the value of property sold, as the consideration of a not© given at an administrator’s sale, it is competent for the witness proving the consideration, to refresh his-memory from the-account of sales kept ’by himself; and also to read the terms of the-sale as they were read just before the sale commenced.</p> <p>An, administrator regularly appointed,, succeeds to all the rights of a* special administrator.</p> <p>(J3enton v. Willces, 66 N. C, Rep. 604; Qutlar v, Qumcef 3, Hay,. 60,, cited, and approved,.)</p>

<p>The fact that a defendant supposed a summons which was served on him to be a paper in another cause pending between himself and plaintiff, and for that reason did not take any measures, to answer the same, is not such excusable neglect as entitles him to relief.</p> <p>In a judgment by default, the plaintiff can only take so much as is authorized by his complaint. If the judgment be for more, it is irregular.</p> <p>If the demand in a complaint is for unliquidated damages, and a judgment by default is taken for a sum certain, it is irregular, and will be set aside upon a proper proceeding.</p> <p>(Bender v. Aslcew, 3 Dev. 149; Williams v. Beasley, 13 Ired. 113; Oowles-v. Sa/yes, 67 N. 0. Kep, 138, and 69 H. C. Rep. 406: Ha/rtsjield v, Jones, 4 Jones, 309, cited and approved.)</p> <p>Hers. — This cause was decided at the last (January) Term, but owing to the detention of the papers by some of the parties until too late, it did not appear in vol. 70. — Rep.</p>

MotioN to .set aside a decree made in a petition for partition at Fall Term, 1869, heard and determined by Russell, J., at January Term,a1874, of New HaNOvee Superior Court.

<p>Where a deed was proved before tbe Clerk of the late County Court, who wrote opposite the witness’ name the word “Jurat,” and who swore that the witness did prove the deed: Held to be a sufficient compliance with the law, to authorize the registration of such deed.</p> <p>That a sale, authorized under a deed. of trust, is postponed for three years, is no such presumption of fraud as will avoid it, when no possession of the land conveyed, nor other benefit, is reserved to the grantor,</p> <p>(.McKinnon v. MoLecrn,, 2 Dev. & Bat. 79; Carrier v. Hampton, 11 Ired. 307; Justice v. Justice, 3 Ired. 58; Moore v. Bason, 11 Ired. 568;--2 Hay. 291; Horton v. Hagler's Bk'r., 1 Hawks, 48; Breeman v. Hat-ley, 3 Jones, 115; Hardy v. Skinner, 9 Ired. 191; Hardy v. Simpson, 13 Ired. 132, cited and approved.)</p>

MotioN to the Probate Judge of Chaven county to remove the defendant, as executor, carried by appeal to the Superior Court of said county, where it was heard by his Honor Judge Clarke, at Spring Term, 1874. The allegations of the petition and the facts found by the Probate Judge are fully set out in the opinion of the Court.

Civil ACTION for damages for a breach of covenant, tried on a motion to change the venue, at Spring Term, 1874, of Car-teret Superior Court, before his Honor Judge Olarhe.

Civil aotioN to recover $1,000, tried before his Honor Judge Clarice, at Spring Term, 1874, of the Superior Court of WilsoN county, upon the following CASH AGREED. In the year 1854, H. J. Q-. Bufiin died in the county of Franklin, having made and published his last will and testament, which was duly admitted to probate in the Court of Pleas and Quarter Sessions of said county at its March Term, 1854, was recorded and the executor therein named qualified.

Civil actioN, brought for the purpose of removing a trustee and securing a certain trust fund, heard before Mitchell, J., at; the Fall Term, 1864, of Ieedell Superior Court. It is alleged in the plaintiff’s complaint that the defendant? is a trustee of an estate of some $5,000, which belongs to the-plaintiff Priscilla for life, and to the other plaintiffs after her death, as her sons, sons-in-law and daughters.

<p>An application by a,bolder of N. C. bonds for a mandamus,to. be directed to the Auditor of State, commanding Mm to cause to be levied certain special taxes to pay the accrued interest on said Bonds, is an application “to enfbrce a money demand,” and as sucb, a-Jucfge at Chambers has no jurisdiction thereof.</p>

INDICTMENT for an assault, tried at Fall Term, 1873, of Cea-ven Superior Court, before his Honor Judge Clarice. On the trial the defendant pleaded “ former acquittaland it appeared that he had been arrested upon a warrant issued by a Justice of the Peace in the township where the offence was committed, at the instance of the person upon whom it was alleged the assault was committed.

INDiotment for fornication and adultery, tried before his Honor-, Judge Cloud, at the Spring Term, 1874, of Rowan Superior Court. On the trial the defendants moved to dismiss the proceedings upon the ground that under the late act of the Oeneral Assembly, conferring jurisdiction upon Justices of the Peace, they have exclusive cognizance of the offence with which the defendants are charged.

MotioN to rehear a judgment of this Court, rendered at the last January Term, 1874, in an action between the same parties reported in 70 N. C. Rep. All the facts and the grounds upon which the motion to rehear is founded, are fully contained in the opinion of Justice Rodman and in the report of the. case above alluded to.

This was a civil actioN, tried before Mitchell, J., at the Eall Term, 1873, of Ikedell Superior Court. Under the instructions of his Honor, objected to by the defendant, the jury returned a verdict for the plaintiff; and a new trial being refused the defendant appealed. The opinion of the Court contains all the facts necessary to an understanding of the points raised and decided.

This was a civil action for damages, together with an application for an injunction, tried before Moore, J., at the Fall Term, 1874, of Beaufort Superior Court. At the return term his Honor continued the motion for an injunction, for the purpose of submitting the allegations as to the nuisance complained of to a jury, with leave for the plaintiff to renew the motion at that time.

<p>When a stranger administers on the estate of one of several wards owning a common fund, he can and ought to make an actual division of the fund with the guardian of the surviving wards, and file in Court an inventory and descriptive list of the bonds, notes and other item» comprising the estate.</p> <p>If the guardian makes himself administrator of one of his wards, he must also sever the tenancy in common, and file of record an inventory and descriptive list of the separate share of his intestate, (ward.)</p> <p>(Graham's Adm'r. v. Davidson, 2 Dev. & Bat. Eq. 115; Wood v. Btm'-ringer, 1 Dev. Eq. 67; Speight v. G-atMng, 2 Dev. Eq. 5, cited and approved.)</p>

INDICTMENT for a forcible trespass on a public highway, tried before Logan, J., at the Spring Term, 1874, of Cababrus Superior Court. On the trial in the Court below, the jury returned a special verdict, substantially finding the following facts: The prosecutor lived in forty yards of the public highway, which ran in front of his house and on both sides ot which he owned the land.

Civil aotioN in the nature of a creditor’s bill against the administrator and others, tried before his Honor, Judge Clarice, at the Eall Term, 1873, of Joees Superior Court. Defendants demurred to the plaintiff’s complaint upon the ground that the Superior Court did not have jurisdiction of such action. On the hearing, his Honor sustained the demurrer and dismissed the action. Plaintiff appealed.

Civil actioN upon a bill of exchange given in the purchase of a certain tract of land, tried before Henry, Jand a jury, at the Spring Term, 1874, of Bumuombe Superior Court. The following are the facts material to an understanding of the points raised and decided in this Court, as they are contained in the “ case settled ” and sent up with the record.

This was a civil aotioN against the defendant as executor, to recover a legacy, tried before Mitchell, Jat Fall Term, 1873, of Alleghany Superior Court. The feme plaintiff, residing in Alleghany county, became entitled to a legacy under the will of her grand-mother, who died in Lenoir county, in which her will was admitted to probate and the defendant, a resident therein, qualified as executor.

<p>INDICTMENT for an affray in riding a horse through the court house, tried before Oloud, </., at the Spring Term, 1874, of Davie Superior Court.</p> <p>On the trial below, under the directions of the Court, the jury found the defendant guilty, and from the refusal oí his Honor to grant a new trial, the defendant appealed.</p> <p>The evidence is sufficiently stated in the opinion of the Court.</p>

<p>The Clerk of the Superior Court has jurisdiction to vacate an attachment, notwithstanding the act of 1870 — ’71, chap. 166, makes the-process returnable to Court in term time.</p> <p>A plaintiff has a right to amend his affidavit as to mere matters of- form; and if he is ready to swear to the amended affidavit, it is errordn.the Clerk to refuse it.</p> <p>(Hughes v. Pei'son, 63 ÍT. 0, Rep. 548, cited and approved!)-</p>

IedictmeNT, for removing a part of the crop, tried before Mitchell, J., at Spring Term, 1874, of Ieedelíl Superior Court, having been removed from the Superior Court of Yancy .county. The indictment contained two| counts; the first charged a forcible trespass .at common law by the defendants upon the land of the prosecutor; and the second was framed upon the 15th section, chap. 64, Bat.

This was a civil action for a breach of promise of marriage commenced in Jackson county, and carried thence to the Superior Court of SwaiN county, where it was tried before Cannon., J., at Spring Term, 1874. The facts are stated in the opinion of the Court. His Honor, on the trial below, held that the suit had abated and gave judgment accordingly. From this judgment plaintiff appealed.

<p>A plaintiff may elect to be non-suited when the Judge intimates an opinion that the Court has no jurisdiction of the action, and when the defendant has moved to dismiss for want of jurisdiction.</p> <p>{McKesson v. Mendenhall, 64 N. C. Rep. 502, cited and approved.)</p>

This was a civil actioN brought to recover a promissory note, tried before Tourgee, J., at the Special (January) Term, 1874, of Wake Superior Court. The note alleged by the plaintiff corporation to be due and made by defendant was for $198.24, dated 1st day of February, 1863. On the trial below, the same motions were made and the same proceedings had as in the preceding case of Pescud v. Hawkins. The plaintiff appealed from the j udgment of the Court dismissing the complaint.

<p>The finding of the jury on an inquisition of forcible entry and detainer ^ before a Justice of the Peace, cannot be traversed in the Superior Court, to which it had been carried by reeordari. If there has been an irregularity, or error in law in the proceedings, or if the verdict of the jury be insufficient to support the judgment of the Justice, it will be quashed,</p> <p>(Sherill v. Nations, 1 Ired. 365, cited and approved.)</p>

Civil aotioN for the claim and delivery of personal property, heretofore decided in this Court at June Term, 1873, (69 N. 0. Rep., 467,) and sent down to the Superior Court of OuM-b sel AND, where it was again tried by Buxton, J., at Spring Term, 1874. The facts are fully set out in the report of the case in 69 N. C. Rep., 467.

<p>INDICTMENT for a trespass in tearing down a portion of a Kailroad bridge, tried before Clarice, J., at the Spring Term, 1874, of Lenoie Superior Court.</p> <p>On the trial in the Court below, the jury found the following special verdict:</p> <p>“ That the track of the Atlantic & N. C. Kailroad Co., which company had been duly incorporated and organized under the laws of North Carolina, crossed the Neuse river a few miles below the town of Kinston, in the county of Lenoir, the said river being there a navigable stream. That at said place of crossing, and as a part of its track, the said company had erected a bridge across said river. That the defendants were owners, officers and employees of a steamboat of thirty-seven tons burden, running between the city of Newbern, a port on said river, and the town of Kinston aforesaid. That on the day named in the bill of indictment, the defendants’ boat loaded with goods to be delivered at Kinston., reached the said bridge on her way from Newbern to Kinston, and finding it could not pass further up the stream without removing a part of the bridge, the defendants did remove a part thereof, thereby injuring and removing a portion of the track and rails as charged in the indictment; that said bridge had no draw in it, although by its charter the said company was required to have a draw in said bridge. That said company had been notified several months before that said boat would be placed on said river for navigation, and had been requested at the same time to place a draw in said bridge. That prior to the day named in the indictmeut, the said boat had passed the bridge eight times, the company taking up a span of the bridge each time to enable her to do so; that she was delayed each time several hours ; that on the day named in the indictment the said company had no one present to remove the span and on that occasion the boat was delayed thirty hours.</p> <p>“ That the owners of the boat then had' license from the proper government officers at Norfolk to run the said boat between Newbern and Kinston ; that the said railroad was a post road under the laws of the United States ; that at the time of the removal of the bridge a number of the employees of the company were standing on the bridge, forbidding its removal, near the defendants, who were standing on the boat below, two of whom had pistols in their hands, which were not pointed at any one. That the company were then engaged in constructing a draw in said bridge and would have had the same finished in seven days ; that the bridge could hare been kept open for defendants’ boat during the construction of the draw, but only at a very considerable additional expense.”</p> <p>His Honor gave judgment upon the special verdict that the defendants were not guilty, from which the judgment the Solicitor for the State appealed.</p>

IndiotmeNT for trespass in tearing down a portion of a Railroad bridge, tried before Clarice, J., at the Spring Term, 1874, of Lenoie Superior Court. The facts, like those of the next preceding case, found by the special verdict of the jury, are the same as those in the State v. Parrott and others, ante. Upon the special verdict his Honor held that the defendants were not guilty, whereupon the State appealed.

INDICTMENT for a trespass in tearing down a portion ofaEail-road bridge, tried before Clarice, J., at the Spring Term, 1874} of Lenoir Superior Court. The offence charged and the facts in this case are identically the same as those in the preceding case of the State v. Parrott, and others, ante 311. Upon the special verdict his Honor held the defendants not guilty, whereupon the State appealed.

<p>Civil aotioN, an attachment against the défendant for a breach of covenant, tried on a demurrer to the defendant’s answer, before Henry, J., at the Fall Term, 1873, of "Watauga Superior Court.</p> <p>The following are the substantia] facts relating to the point presented in the Court below, and decided in this Court.</p> <p>Plaintiff and defendant exchanged lands, those of the plaintiff situate in Watauga county, N. C., and the five tracts of the defendant being in Johnson county, State of Tennessee. Both parties executed and delivered to each other deeds for their respective tracts of lands, covenanting therein against any and all incumbrances, and that they were legally seized, &c.</p> <p>The plaintiff alleges that at the time and before the deeds were made by the defendant to him for the lands in Tennessee, there had been levied on said land sundry attachments, upon which judgments had been obtained, amounting to the sum of $3,065.08 inclusive of costs, and for which the lands sold by defendant to plaintiff were liable and had been levied on.</p> <p>In his answer, the defendant admits the incumbrances on the land he sold, and avers that the plaintiff before he accepted the deeds executed by him had notice thereof, being informed by him of the existence of the attachments and of the proceedings under them.</p> <p>Plaintiff demurred to defendant’s answer, in that it is insufficient, as it admits the existence of the covenant declared on, and the fact that the plaintiff knew of the incumbrance, and other matters in said answer stated, are not sufficient from preventing the plaintiff’s recovery.</p> <p>His Honor sustained the demurrer, and the defendant appealed.</p>

Civil aotioN, to obtain the construction of a clause in the will of one Paul Kistler, beard by his Honor, Judge Zogcm, at the Spring Term, 1874, of LINCOLN Superior Court. The following facts were agreed and submitted to his Honor, on the hearing below: Paul Kistler died in 1848, leaving a last will and testament, which was duly admitted to probate in Lincoln county.

Civil action, to collect from defendant the amount of a - certain note by him received for plaintiffs testator, tried before Tourgee, at the Spring Term, 1874, of PeesoN Superior Court. / In his complaint the plaintiff alleges, that in 1866, the defendant signed the following paper: “ Received of Nathaniel Torian one bond for six hundred dollars, dated 15th May, 1860, on John W. Cunningham, to collect for him;” and that as agent, the defendant did collect from Cunningham, in…

Civil actioat to recover a note given by defendants, tried before his Honor, Judge Moore, at the Spring Term, 1862, of ¿he Superior Court of EbaNKLIN county. In his compla:nt the plaintiff alleged that the defendants made and executed their note to him as follows : “ $766.88.

This was a civil actioN, applying for an inj unction to restrain the defendants from working turpentine, &c., on a certain piece of land, heard by Ola/rk, J., at Chambers in Obaven county, Nov. 13th, 1873. The plaintiff alleged that he was the owner in fee of a certain tract of land in Craven county, describing it, and that the defendants trespassed upon a portion of it, destroying its value by getting turpentine, injuring the timber and committing waste generally.

<p>The Court below has a discretionary power to allow the plaintiff to amend his complaint and the defendant his answer; and from the exercise of this discretionary power, no appeal lies to this Court.</p> <p>The refusal of the presiding Judge on a trial in the Court below, to dismiss the plaintiff’s action, while he appeared and was regularly prosecuting it, was not a judgment from which an appeal will lie,</p> <p>{Phillipse v. Higdon, Busb. 380; Springs v. Wilson, 2 Dev. .Eq. 885; Hatchel v. Odom, 2 Dev, & Bat. 302; Smith v. Smith, 8 Ired. 89; DiaTc-ey v. Johnson, 13 Ired, 430, cited and approved,)</p>

This was an action of EjbctMENT, brought by the lessor of the plaintiff against one David Wilson to Spring Term. 1861, of Yancey Superior Court, for certain lands situate in said county, from whence it was removed to the Superior Court of MadisoN county in which it was tried before Henry, J. at Spring Term, 1874.

<p>Twenty years possession of an easement raises a presumption of a grant. In computing that twenty years, the time from the 20th day of May, 1861, until the 1st day of January, 1870, shall not he counted, so as to presume the abandonment of any right by the plaintiffs.</p> <p>([Rogers v. Male, 4 Dev. 180; Geringer v. Sommers, 2 Ired. 229; Neely v. Oraig, Phill. 187; Mmris v. Avery, lb. 288; Hinton v. Hinton, Ibid, 410; Plott v. Western N. O. B. B. Go., 65 N. C, Rep. 74; Smith v. Bogers, lb. 181; Johnson v. Winslow, 63 N. 0. Rep. 552; Howell v. Buie, 64 N. C. Rep. 446, cited and approved.)</p>

This was an order on the defendants, made absolute by bis Honor, Judge Tomgee, at the Pali Term, 1873, of Caswell of Superior Court. The plaintiff presented the following order to- the defendants, who refused to pay it, to-wit: “It is ordered by the Court that the Commissioners of Cas-well county allow and pay to J. C. Griffith, sheriff of Caswell county, fifty dollars for his services in attending upon this Court, at Fall Term, 1873.

Civil action for partition of certain real estate situate in Baleigh, N. C., beard before his Honor Judge Tourgee, at the Special (January) Term, 1874, of the Superior Court of Wane county. On the trial below, the sole question was as to the ownership of one-fifth interest of the lands sought to be divided. Upon hearing the complaint and answer, his Honor being of opinion with the plaintiffs, gave judgment accordingly. Defendant Denton appealed.

Civil aotioN, to recover a legacy, and for an account, tried before Bussell, J., at the Spring Term, 1874, of the Superior Court of Columbus county. The following are the substantial facts of the case.

This was a civil aotioi-t, being an original bill filed in the Court of Equity for Wake county, to set aside a certain exchange of bonds made by defendants and for an account, heard before his Honor, Judge Tourgee, at the Special (January) Term, 1874, of the Superior Court of said county, upon an agreed state of facts. On the trial below, his Honor gave judgment dismissing the bill; from which judgment plaintiff appealed.

Civil. aotioN, for the recovery of an account due the firm, tried at Eall, Term, 1873, of Mecklenbuhg Superior Court, before Logan, A,, upon a demurrer to[the answer of defendant. All the facts relating to the points decided are fully stated in the opinion of Justice Reads, and the dissenting opinion of Justice RodmaN. Defendant appealed.from the judgment of the Court below.

Civil actioN, commenced by original bill in the Court of Equity of RowAN county, for the purpose of settling a partnership, and in the meantime applying for an injunction, heard before Cannon, J., at the Eall Term, 1873, of the Superior Court of said county, to which Court it had been removed as prescribed by law.

This was a civil actioN to recover on a quantum meruit for the services of plaintiff’s son, tried before Tourgee, J., at the Special (January) Term, 1874, of WAKE Superior Court. On the trial below, his Honor being of opinion that the plaintiff could not recover, he submitted to a non-suit, and appealed. The facts are fully stated in the opinion of Justice Settle.

Civil action, to recover the amount of a promissory note, tried before Buxton, J., at the Special (January) Term, 1874, of Wayne Superior Court, upon the following CASE AGREED. The action was brought December 29th, 1869, returnable to Spring Term, 1870, on a promissory note under seal, payable to Wait.

This was a civil action commenced in tlie Court of a Justice of the Peace, for the recovery of certain real estate situate in Raleigh, and carried by appeal to the Superior Court of Waee county, where it was tried, and brought by appeal to this Court, and decided at January Term, 1874, and remanded to be proceeded with according to the decision. It was again tried before his Honor, Judge Watts, at Spring Term, 1874.

This was a civil aotioN, instituted after the decision in the preceding case, tried before Watts, on an application for a re- straining order, at Spring Term, 1874, of Wase Superior Court.

This is a branch of the preceding case, demanding the same’ relief heard upon the application for an injunction by his Honor, Judge Watts, at Chambers, on the 9th April, 1874, in-Wake county. The facts of this case are those of the preceding. When the application for the injunction was first made, as stated in thati case, his Honor refused to grant it; and from- this refusal, the-plaintiffs appealed.

Civil action to recover the value of a promissory note, tried by his Honor, Judge Tourgee, at the Special (January)' Term, 1874, of the Superior Court of WaKE county.

This was a ueoceeding to condemn certain land of the defendant for the purpose of opening a street in the town of Asheville, commenced in the Mayor’s Court, and carried by appeal to the Superior Court of Buncombe, where it was tried before his Honor, Henry, J., at Spring Term, 1874. The injunction obtained by the defendant in this case was disposed of at the last term of this Court.

This was an APPLICATION for an injunction to restrain the defendants from collecting certain taxes, heard before Clarice, j., at Spring Term, 1874, of CraveN Superior Court.

Civil actioN, to recover possession of certain real' estate, tried before his Honor, Judge Mitchell, at Spring Term, 1874, of Wilkes Superior Court. The case, as settled and transmitted with the record, is substantially as follows: In his answer, the defendant pleaded that he had a license ifirom plaintiffs to# enter.

<p>If, on a trial below, the verdict of the jury is, in the opinion of the presiding Judge, contrary to the weight of the evidence, he has a discretion to set such verdict aside, which discretion cannot be reviewed in an appellate t 'ourt.</p>

Devisavit vel NON, as to a paper writing propounded for probate in the Probate Court of Jones county, purporting to be the will of Ivy King, deceased, and carried by appeal to the Superior Court of said county, where it was heard before his Honor, Judge Clarice, at Spring Term, 1874.

This was a oivil actiok, commenced in a Justices’ Court to recover of the defendant’s testator the sum of $60, and carried by recordari to the Superior Court of NobthamptoN, where it was tried before Albertson, J., at the Pall Term, 1873. The material facts are thus stated upon the record sent up to this Court.

. Civil actioN for the recovery of land, tried before Mitchell, J., at the Spring Term, 1874, of WilKes Superior Court. The plaintiffs claimed the premises under a judgment in their favor against the defendant, B. C. Martin, obtained at Fall Term, 1869, and an execution thereon returnable to Spring Term, 1870,#and a levy on what is called the “mill tract,” and a sale thereof, by the sheriff on the 22d, April, 1870; at which sale the feme plaintiff became the purchaser.

<p>The entry on land that a Court can enjoin, is only an entry under force or color of legal process. It will not enjoin a mere trespass, unless irreparable damage is threatened.</p> <p>An administrator does not always represent the creditors of his intestate; though, as a general rule, in controversies respecting the personal property, or what from circumstances may be considered personal property, the administrator represents the creditors and next of kin; And if, in an action concerning such property, the administrator fails to set up an estoppel against certain parties claiming it, the creditors are concluded by his action.</p> <p>An estoppel must be certain at least to a common intent. The subject matter, and the estate to which it is sought to be applied, must be ascertained with reasonable certainty.</p> <p>(Dula v. Young and Clark, 70 N. 0. Rep. 450; Hardee v. Williams, 65 N. C. Rep 56; Moore v. Shields, 68 N. C. Rep. 337, cited and approved.)</p>

Rude on defendant, a sheriff, to show cause why the proceeds arising from the sale of certain land, under two executions, should not be appropriated to the junior execution in favor of plaintiffs, heard by Olarke J., at Chambers in CeavbN county, 29 th May, 1874.

This was a pbtitxoN for a oertiorai, made to his Honor, Judge Tourgee, 5th March, 1874, at Chambers, upon the hearing of which the writ together with a supersedeas was issued returnable and heard at Spring Term, 1874, of PersoN Superior Court. The points raised and the facts relating thereto, are fully set out in the opinion of the Court. Upon the hearing, his Honor granted the writ and the plaintiff appealed.

This was a motioN for a venditioni exponas to issue to the sheriff of Craven county, heard by his Honor, Judge OlarTte, at the Fall Term, 1874, of Wayhe Superior Court.

This was a MOTION in the cause to amend the record, and for leave to issue an execution, heard before Clarke, Judge, at the Spring Term, 1874, of Wayne Superior Court. The facts are fully stated in the opinion delivered by Justice Byuum. Erom the ruling of his Honor .below., the defendants appealed.

Civil aotioN, oh a contract, tried before Mitchell, J., upon exceptions to the report of a Commissioner, at the Spring Term, 1874, of Iebdell Superior Court. During the progress of the cause it had been referred to a Commissioner to state an account, and upon the coming in of his report, the defendants hied exceptions thereto. Upon the hearing, his Honor overruled the defendants’ exception and denied his application for a jury, whereupon defendants appealed.

Civil aotioN, to enforce a lien for building materials, originally brought against Williams, tried before Cloud, J., at the Special (January) Term, 1874, of New Haeovee Superior Court.

Civil action) for the recovery of certain goods, with process of “ claim and delivery,” against the defendant, sheriff of Ire-dell, who claimed to hold said goods under certain executions against Shepperd & Wycoff, to whom the goods had belonged, tried before Mitchell, J., at Spring Term, 1874, of Tb,t¡t)u.t,t, Superior Court.

Civil actioN for the recovery of a certain tract of land, and for an account of the rents, and in the meantime for an injunction against one of the defendants, restraining him from paying to his co-defendant certain rents, tried before Tourgee, J., at the Spring Term, 1874, of Chatham; Superior Court.

This was a civil actioiv, by the plaintiffs, former wards of the defendant, for the cancellation of a certain deed executed by defendant, and for an account and the appointment of a receiver, tried before his Honor, Judge Olarke, at the Special (January) Term, 1874, of RobesoN Superior Court.

Civil aotioh for the dissolution of a co-partnership, for an account and the appointment of a receiver, and in the meantime for an injunction, restraining the defendant from receiving moneys due the co-partnership, heard before Bussell, J., at Spring Term, 1874, of New Haktovee Superior Court.

This was a civil ACTION, to set aside an election, and for an injunction, heard and determined by his Honor, Judge Waifs, at Chambers in the city of Ealeigh, county of W'aee on the 13th day of May, 1874.

This is the same as the preceding case, the facts of which are therein fully stated. Upon the defendant, Ballard, being permitted by .his Honor to defend, the plaintiffs appealed.

Civil actioN, to recover the value of a note given by defendants, on the 10th day of September, 1862, tried before his Honor, Judge Watts, at Spring Term, 1874, of Nash Superior Court. The question as to the measure of damages, being the only one decided in this Court, and the opinion of the Court containing all the facts relating to that, no further statement is called for.

This was a civil actioN, on a policy of Life Insurance, tried before Buxton, J., at the Spring Term, 1874, of Stahxy Superior Court. On the trial below many points were raised and decided by the presiding Judge, to whose rulings exceptions were taken, but as most of them are not material to the questions decided in this Court, they are omitted. The opinion of Justice Rod-MAN contains all the material facts of the case.

MotioN to vacate a restraining order, heard before Buxton, J., at the Spring Term, 1874, ofMoNT&OMERir Superior Court. Held: that the restraining order in the cause, made by his Honor, Judge Tourgee, was ultra vires and without authority.

Civil action, for the recovery of the possession of land, tried before his Honor, Judge Olarke, at the Spring Term, 1874, of CRAVEN Superior Court. On the trial below, the Court submitted certain issues without instructions to the jury, which, with the finding of the jury thereon, and all other facts relating to the points discussed and decided in this Court, are fully set out in the following opinion of Justice RodmaN. The jury found the issues for the plaintiffs.

Civil actioN on a promissory note given to the Bank of Statesvile, tried at Spring Term, 1874, cf Ieedell Superior Court, before his Honor, Judge Mitehell. The summons sued out by plaintiff was returnable to Fall Term, 1873, and was duly served on defendants.

In this case, the defendants appealed upon the same grounds and for the same reasons as did the defendants in the preceding case, ante.

This was a civil aotioN to compel defendants to convey to plaintiffs the legal title to two lots in Lumberton, originally tried by Buxton, J., at the Special (January) Term, 1874, of the Superior Court of Robeson, and from thence brought by appeal to this Court, in which it was argued at June Term, 1873, and sent back to the Court below to have tried certain issues framed here.

<p>This was a civil actioN against the defendant, as executor-of one R. King, sheriff, tried on exceptions to the report of a referee, before Clarice, J., at the Special (January) Term, 1874j-, of Robeson Superior Court.</p> <p>The plaintiff had, from 1853 to 1858, placed in the hands of’ the defendant’s testator, R. King, who was sheriff ofi Robeson-, county, a large number of notes, accounts and judgments against sundry citizens for collection, and this suit is brought! to recover the amounts collected, or ought to have been collected, on the same. It was originally brought on the official’ bond of King, but subsequently the. pleadings were amended! and the bond withdrawn.</p> <p>At the Special (January) Term, 1873, it was referred to WL S. Norment to state an account between the parties, whose report was filed, Fall Term, 1873, and time allowed to the ensuing term to except thereto. The exceptions were argued, and the plaintiff being dissatisfied with the rulings of his Honor, appealed.</p> <p>The facts pertinent to the points considered in this Court are stated in the opinion of Justice RodmaN. 1</p>

<p>If a defendant enter upon land, or travel an open way, (the trespass charged,) under a Iona fide elaim of right, he is not criminally guilty of a trespass on land under the statute.</p> <p>And he is not guilty, if at the time it was done, he believed he had the right to enter, or travel on or over the road, because he, and the for. mer owners of the land had done so for sixteen or seventeen years. (State v. Allen, 68 N. C. Rep. 281; State v. Whitehwist-, 70 N. C. Rep. 85.)</p>

INDICTMENT for fornication and adultly, tried before his Honor, Judge Watts, at the Spring Term, 1874, of Waee Superior Court. On tbe trial below, his Honor dismissed the indictment on motion of defendants holding that the Court did not have jurisdiction. Solicitor Cox appealed.

This is the same case as was before the Court at Januaiy Term, 1871, (see 65 N. C. Rep. 265,) in the statement of which by Justice RodmaN, the whole facts are fully set out. At the last Term it was re-referred to the Clerk of this Court to modify and correct his report, which was done, when both parties excepted. The exceptions are stated in the opinion of the Court.

Civil actioN for the recovery of real property, tried before Clarice, J., at the Special (January) Term, 1874, of RobesoN Superior Court. All the facts relating- to the points decided are fully stated in the opinion of the Court.

<p>The Commissioners of the city of Newbern have the power under their amended charter to levy and collect for current expenses, taxes to the amount of $6,000, observing in such collection the equation and limitation prescribed in the Constitution. But they have no authority to collect taxes to pay “new debts,” unless the proposition is submitted to the voters of the town, even though commanded by mandamus,</p>

This was a civil action-, to subject a certain fund in the hands of B. E. Moore, Esq., to the payment of a judgment obtained by the plaintiff,- and for other purposes, tried before his Honor, Judge Tourgee, at the Special (January) Term, 1874, of WaKe Superior Court. It bad been referred to Commissioner J. J. Davis, who reported the facts, and the case was tried in the Court below on exceptions to that report.

ExcbptxoNS by both plaintiffs and defendants to the report of a referee, heard by his- Honor, Judge Russell. at the Spring Term, 1874, of New Hanovee Superior Court. The facts of the case are stated in a report of the same, at January Term, 1873, when it was in this Court upon another ground, and remanded. The exceptions to the report are sufficiently noted and explained in the opinion of the Court.

This was a civil actioN, to foreclose a mortgage, tried before his Honor, Judge Tour gee, at the Special (January) Term, 1874, of Waxe Superior Court. On the trial below, his Honor being of opinion that the title to the lands conveyed in the mortgage attempted in this proceeding to be foreclosed, being absolutely in one of the defendants, gave judgment against the plaintiffs for costs, &c., whereupon they appealed.

This is but another branch of the preceding case, being the defendants’ appeal therein. For the facts necessary to an understanding of the points taken by defendants, see the statement and opinion in the preceding case. On the trial below, the defendants insisted that certain other persons were necessary parties. His Honor ruling differently, the defendants appealed.