Volume 72 — North Carolina Reports

Petition-, to re-hear the cause as decided at the last (June) Term of this Court, and to vacate or modify the judgment then and therein rendered. After argument the petition was dismissed with costs.

<p>This was a civil aotion, for a Mandamus to compel the Auditor of the State to audit, and the Public Treasurer to pay certain coupons, heard before Henry, at the Fall Term, 1874, of Wake Snpeiior Court.</p> <p>The material facts of this case are stated in the opinion of the Chief Justice.</p> <p>On the trial below, his Honor gave judgment for the defendant. From this judgment the plaintiff appealed.</p>

Petition, for relief from certain taxes, presented to defendants, and heard upon appeal by his Honor, Judge Bussell, at Chambers, in Brunswick county, the 19th day of May, 1874.

Petition, for relief from taxation, heard upon appeal, by his honor, Judge Russell, at Chambers, in the county of New ITanover, the 29th day of May, 1874.

SümmaRy proceedin'os, in the nature of Ejectment, tried before hi? Honor, Judge Buxton, at the Spring Term, 1874, of Cumberland Superior Court. The plaintiff originally instituted proceedings under the “Landlord and Tenant” Act, before a Justice of the Peace, which were brought by the appeal of the defendant, to the Superior Court.

This was a civil action in the nature of a Bill of Review, 'heard upon complaint and demurrer, before his Honor, Judge Buxton, at Spring Term, 1874, of Richmond Superior Court. The present action was brought by the plaintiff, praying that a'decree, made in an equity suit between the same parties, at Spring Term, 1871, might be reviewed, reversed and set aside.

Civil action, on the bond of an administrator, tried at the Special (December) Term, 1874, of Halifax Superior Court, before his Honor, Judge Henry, upon complaint and demurrer. In his complaint, the plaintiff alleges, that in I860, one A. M. Riddick died intestate, and at February Term, 1861, of the Court of Pleas and Quarter Sessions of Halifax county, the defendant S. B. Hyman, and John II.

Indictment for a eiot, &g., tried before bis Honor, Judge Henry, at the EallTenn, 1874, of Geanville Superior Court. The indictment contained three counts, which, with the special verdict and all other facts, necessary to an understanding of the decision of this court, will be found in the opinion of Justice Bynum. Upon the facts as found by the jury, his Honor, on the trial below, order a verdict of “ not guilty,” to be entered for the defendants.

<p>Petition eor DoweR, heard by Logan, <71, at Chambers, in Cleaveland county, upon an appeal from the Probate Court of said county, 1st day of June, 1874.</p> <p>From the case agreed, the following facts, pertinent to the points raised for decision in this Court, appear:</p> <p>The petitioner was married to L. M. McAfee, of Cleaveland county, in February, 1869, and continued under coverture until his death in September, 1873. During the coVerture, the husband was seized in fee of 940 acres of land, save and except so much thereof as had theretofore been allotted as dower to his mother.</p> <p>The defendant is in possession of said land, claiming title thereto under a sheriff’s deed, of date, 8th April, 1872, and conveying the 940 acres above mentioned, and also under a deed from the said L. M. McAfee and wife, Addie W., the petitioner, dated 11th April, 1872, for 142 acres, being the homestead of the said husband and wife, theretofore allotted to them according to law. As a ^counter-claim to the petitioner’s right to dower, the defendant claim $ damages, for a breach of warranty in this latter deed, and prays that judgment may be rendered for the same and declared a lien on plaintiff’s right.</p> <p>The plaintiff demurred to the answer of the defendant, insisting : 1. That the sheriff’s deed passed the land to Bettis, subject to her right of dower ; and 2. That in the homestead conveyed to him by her and her husband, she claimed no dower.</p> <p>The Judge of Probate overruled the demurrer, and adjudged against the plaintiff, dismissing her petition with costs, whereupon she appealed to the Judge of the 9th Judicial District. His Honor overruled the decision of the Judge of Probate, and ordered the writ of dower to issue to plaintiff as prayed. From this judgment defendant appealed.</p>

Habeas coeptts, to obtain the custody of an infant child, heard by his Honor, Judge Logan, at Chambers, in Polk county, 17th September, 1873.

Mandamos, heard before McKay, J., at Chambers, October 22d, 1874. This was an action to compel tire defendants, the Commissioners of Bladen county, to allow the plaintiff to qualify ae sheriff of said county. The plaintiff was elected sheriff of said county on the 6th of August, 1874, and tendered to the defendants the bond usually Icnown as the “ Process bond,” with good and sufficient sureties, justified according to law.

<p>The provision of the lawr, which requires the certificate of probate, made by the Probate Judge of a county other than that in which the instrument is to be registered, to be passed on by the Probate Judge of the latter, is only directory, and a registration, upon a probate, which has not been so passed upon, is valid</p>

<p>Civil action for damages, tried before Henry, J., at December (Special) Term, 1874, Halifax Superior Court.</p> <p>This was an action, in the nature of an action for waste, commenced by the plaintiffs against the testator of the defendants.</p> <p>It is unnecessary to state the alleged acts of waste, as they are not necessary to an understanding of the case as decided in this Court.</p> <p>The action was commenced at Spring Term, 1871, and the original defendant, Margaret W. Davis, died in the month of May, 1873, and at the Jane Term of the Court, John P. Lawrence was appointed her collector. At the Spring Term, 1873, the death of Margaret W. Davis was suggested on the record, and it was ordered that citation issue to make her personal representative a party to the suit.</p> <p>The present defendant appeared in obedience to said citation and entered the following plea, to wit; That he insists that said action abated by the death of the defendant, Margaret W. Davis, and in law cannot farther be prosecuted.</p> <p>The case came on to be heard and his Honor, upon motion, allowed the plaiutiffs to amend their complaint by declaring for actual damages only. The defendant insisted that the Court should adj udge that the action was abated. The Court refused so to rule, and the defendant appealed.</p>

This was a civil action, in the nature of ejectment, to recover a certain tract of land and damages, tried at the Fall Term, 1874, of Alexander Superior Court, being removed thereto, upon affidavit of defendants, from the Superior Court of Iredell county, before Mitchell, J., upon the following facts, certified to this Court by his Honor.

Attachment, tried before Watts, J., at the Fall Term, 1874, of Hendeeson Superior Court, having been removed thereto, upon affidavit, from the county of Rutherford. The plaintiff on the 4th December, 1867, sued out of the Superior Court of Rutherford county, au attachment against the defendant, which was duly levied on both real and personal property. The suit was afterwards removed to Henderson Superior Court.

Civil action, and prayer for an Injunction, heard before Watts, J., at Chambers, at the June Term, 1874, of Wake Superior Court. After notice, the defendant moved to vacate the Injunction, granted upon application of the plaintiffs, when the summons issued. His Honor refused to vacate the Injunction, and the defendant appealed.

Ceeditoe’s Bill, heard by 1ns Honor, Judge Tourgee, at a Special (January) Term, 187-1, of the Superior Court of Wake .county. The plaintiff in behalf of himself and all others, the creditors of Leroy Jones, deceased, brings this action to subject certain lands to the payment of their debts. Leroy Jones, the testator of defendant, died in 1864. His will was duly proved and the defendant, his wife, qualified as executrix, and took into her possession all his personal estate.

PetitioN, by t-he defendants to re-bear the case between the same parties, decided at the last (June) Terra of this Court. The case is reported in the 71 N. C. Rep. 440, in which the facts are all fully stated. The grounds relied on for a re-hearing are sufficiently set out in the opinion of the Court.

Plaintiff sued defendant for damages in a Justice’s Court, and obtaining judgment, the defendant appealed. On the trial in the Superior Court, the defendant moved, (having filed an affidavit of the plaintiff’s insolvency,) that the plaintiff be required to give security for tbe further prosecution of his suit, and on his failure to do so, that the suit be dismissed.

Civil action-, tried before Buxton, J., at January (Special) Term, 1874, Wayne Superior Court. All the facts necessary to an understanding of the case are stated in the opinion of the Court.

<p>Where, in a grant from the State, a tract of land is described as f olloW: “a tract of land containing 173 acres, lying and being in our county of Wilkes, on a big branch of Luke Lee’s creek, begining at or near the path that crosseslthe said branch, that goes from Cranes’ to Sutton’s, on a stake, running West 28 chains, 50 links to a White Oak, in Miller’s line, then North 60 chains to a stake, then East 28 chains 50 links to a stake, then South 60 chains, to the begining,” and no evidence being offered to show the location of Miller’s line, or of the white oak referred to: It was held, that the description is fatally defective, and cannot be made sufficiently definite by part testimony.</p>

Civil action, on a bond for money, tried at the Spring Term, 1874, of .Northampton Superior Court, before Albert-son', J., and a jury. The plaintiffs declared in debt, before the Code of Civil Procedure, on two bonds amounting in the aggregate to $130, with interest, payable to the plaintiff's, executors of R. B. Gary, and executed by the defendant Johnson as principal, and Long as surety.

Devisavxt vel won, as to a paper writing, propounded as the will of one John McLean, removed from the Superior Court of Iredell county, to the Superior Court of Catawba, where it was tried before Mitchell, J., and a jury, at Pall Term, 1871. The will of John McLean was 'proved- iu common form in in the Probate Court of Iredell county.

Civil aotioN, for an Injunction, to restrain defendant from collecting taxes, tried before Bussell, J., at June Term, 1874, of New Hanover Superior Court. The plaintiff complained that the defendant threatened, and was about to enforce, the collection of a certain tax of $220, on its real estate, situated in the city, which the plaintiff insisted was illegal. The defendant insisted upon the legality of the tax and demanded immediate payment.

Civil actioN brought to the Spring Term, 1874, of the Superior Court of OraNge county, and heard upon the plaintiffs’ demurrer to the answer of the defendant, before his Honor, Judge Tourgee, at Chambers, on the 12th day of June, 1874.

Civil action, against the defendant as surety on a guardian bond, heard before Oloud, J., at August (Special) Term, 1874, of the Superior Court of Wilkes county. The defendant was surety for one Benjamin P. Martin, who was the guardian of the feme plaintiff) his daughter.

Civil Actioh, Ejectment, commenced before the adoption of the C. C. P., tried before CJloud, J., at the December (Special) Term, 1873, of New Hahovee Superior Court. On the trial below, it was admitted that the land in dispute was the property of the lessee of the plaintiff, being land owned by her at the time of her marriage with James Wright, and that he, her said husband, died before the commencement of this action.

<p>Upon an indictment for larceny and receiving stolen Treasury notes: Held, that it was error to admit evidence showing, “that shortly after the alleged stealing, the defendant purchased several articles at a store, and that witness saw a number of bills in the pocket book of the defendant, of what denomination, he was ignorant.”</p>

<p>It is error for a Judge in the Superior Court to set aside a judgment on the motion of the defendant, without giving the plaintiff the legal notice.</p> <p>Several causes of action may he joined in one complaint, provided all of them arise out of any one of the classes specified in the O. C. P.-e. g. “(2.) contracts expressed or implied.”</p>

Motion- by the defendant to set aside a judgment obtained by the plaintiff against him, heard by his Honor, liussett, J.y at Chambers, in the county of Bladen. From the order made by his Honor, the plaintiff appealed. The facts of the case, and the points raised and decided in the Court below and in this Court, are identically the same as are those in the case preceding.

Special pbooeeding, being a petition for a Homestead, originally commenced in a Justice’s Court and carried from thence to the Superior Court of Duplex county, where it was tried at Spring Term, 1874, before his Honor, Judge JRussell. The following facts were agreed and sent to this Court as one of the papers making up the transcript.

This was a Civil Action, upon the official bond of a sheriff, submitted upon facts agreed, and determined by bis Honor, Cloud, J., at the Eall Term, 1874, of Davie Superior Court. The facts, pertinent to the decision of this Court, are substantially the following: That the defendant, Kelly, was elected sheriff of Davie county in 1868, gave bond and duly qualified.

Indictment, for pursuing and killing live stock, tried before Buxton, J., at the Fall Term, 1874, of Anson Superior Court.

Civil action against the defendant as executor de son tort, tried before Buxton, J., at the Spring Term 1871, of Union Superior Court. The plaintiff commenced his suit in a Justices’ Court upon a note for §131.85, dated 5th January, 1859, and payable with interest, which note was signed by Elizabeth Gaddy now deceased. He recovered a judgment before the Justice and a jury, whereupon the defendant appealed to the Superior Court.

Civil Action, for the recovery of the possession of real -estate, tried before Clarke, J., at the Spring Term, 1872, of Jones Superior Court. The facts upon which this case is decided, are fully set out in the opinion of Justice Reade. From a judgment in favor of the plaintiff in the Superior Court, the defendants appealed.

This was originally a Petition for a Certiorari, decided at the last (June) Term of this Court, see 71 1ST. C. Rep. 212. The writ then prayed for by defendant, was ordered to issue to Judge Clarke, of the Court below, who went out of office before he obeyed the mandate of the Court. The remaining facts are stated fully in the opinion of the Court.

Civil action, tried before Tourgee, J., at Spring Term, 1874, of Guilford Superior Court. The suit was brought to recover certain land, sold under execution, by the sheriff. The plaintiffs became the purchasers, and a deed was executed by the sheriff1, conveying the property to them. The defendant refused to give up the possession, alleging that the property sold had been regularly laid off and allotted as his homestead.

This was an Istdictmeij't for stealing corn standing and remaining ungathered in a certain field, tried at the Pall Term, 1874, of Beetie Superior Court, before his Honor, Hilliard, J. When the case was called in the Court below, the defendant moved to dismiss the prosecution, for the reason that the Court did not have jurisdiction ; and his Honor being of opinion with the defendant, allowed the motion. Prom this judgment, Martin, Solicitor for the State, appealed.

<p>This was a Motion, after notice, in a former Petition in Equity, to vacate a decree, heard by Tour gee, J., at Pall Term, 1873, of PERSON Superior Court.</p> <p>From the order made by bis Honor, upon bearing the motion, the defendants appealed.</p> <p>All the facts pertinent to the points decided, are fully set out in the opinion of Justice Settle.</p>

Civil action, for assault and false imprisonment, brought originally in the Superior Court of Orange county, and thence-removed upon affidavit to the Superior Court of Granville, from whence it was carried to Wabeen Superior Court, where it was tried at the Eall Term, 1874, by his Honor, Judge Watts. In September, 1870, the plaintiff sued out his summons against the defendant Douglass, and W. W. Holden and one G. B. Bergen, returnable to Orange Superior Court.

This is a part of the preceding case of Turner v. Douglass, ante, and the motion to discontinue was decided at the same term. The facts are fully stated in the preceding ease. From the refusal of his Honor, to discontinue the case as to defendant, Holden, he appealed.

<p>Civil action, (in the nature of Ejectment,) for the recovery of real estate, tried at the Fall Term, 1874, of the Superior Court of Jones county, before his Honor, Judge Seymour and a jury.</p> <p>The action was originally commenced against the defendant Pritchett, the tenant in possession. At Spring Term, 1878 E. G. McDaniel, claiming to be the landlord of Pritehett, woe made a party defendant upon the usual terms, when the two joined in the answer denying the plaintiff’s title.</p> <p>The plaintiff claimed title to the premises in question under a deed from the sheriff of Jones county, executed in the Spring of 1873, upon a sale under an execution duly issued against one F. McDaniel, the owner of the land and the father of the defendant, E. G. McDaniel.</p> <p>The defendants also relied upon a deed from the said sheriff executed in May, 1872, upon a sale of the same land under an execution duly issued against the said F. McDaniel.</p> <p>The main question arising on the trial was one of fraud, to establish which, the plaintiff introduced testimony tending to show that at the first sale there was collusion between the father, F. McDaniel, the judgment debtor, and the defendant, E. G. McDaniel, his son. The collusion was denied by the defendants’ evidence.</p> <p>On the trial,, it was in evidence and not contradicted, that at the first sale by the sheriff, two parcels of land — one in ihe country, three miles from the village of Trenton, and the other consisting oí a number of lots in that village, were soldm masse by the sheriff and were purchased by the defendant, E. G. McDaniel, for about $200. That the sheriff, and the purchaser and F. McDaniel, against whose property the execution issued, were well aware of the situation of the different tracts of land, and that they were so sold altogether at the request of the said F. McDaniel, the judgment debtor;, and also-at his request, the sale was made of his interest, “ subject to all legal claims,” without laying off his homestead. There was evidence, that he, the judgment debtor, did not relinquish h.is-right to a homestead, but supposed that the sale was made subject to it. The tract of land- in the country, estimated to be worth from $'100 to $1000=, continued to be occupied by the said F. McDaniel, the judgment debtor, and was subsequently assigned to him for a homestead, upon his going into bankruptcy. The lots in the village are estimated to be worth from. $500 to $1000.</p> <p>The plaintiff requested his Honor to instruct the jury, “ that the sheriff sold as an officer of law; and if he did not sell the land in the way it would bring the best price, the sale is void, although the purchaser had nothing to do with the way in which the sheriff sold.” This instruction his Honor refused, as he did also the following, asked by defendants, to wit “ that if the defendant in the execution, the said F. McDaniel, assented to a sale en masse of the premises, that is a waiver of any objection upon that point, and as to that, a sale en masse-by the sheriff" was good.”</p> <p>The Court charged the jury, that upon the question of fraud they might consider the relationship of the parties; the value of the land purchased as compared with the amount given for it; the fact that E. McDaniel remained in possession ; certain conversations at the sale; the re-sale of the home plantation to the father, F. McDaniel; and the fact that the defendant, E. G. McDaniel, was aware that his father had been sued. That if upon considering all the evidence, they believed there was an understanding between the father and the son, the defendant, E. G. McDaniel, by which the land was to be purchased for the benefit of the father, or a purpose to defraud creditors, they would find the issue of fraud in favor of the plaintiff; if they believed the transaction was an honest one, they would find for the defendant. And the Court submitted the following issues to the jury:</p> <p>1. Was the real estate of F. McDaniel sold by sheriff Anderson, on the John McDaniel execution, in such a manner as was likely to bring the best price? To which the jury responded, that “ it was not.”</p> <p>2. Did sheriff Anderson sell the two tracts en masse, at the request of F. McDaniel ? The jury found that ‘‘he did.”</p> <p>3. Is the sheriff’s deed to E. G. McDaniel for the land sold under the execution against F. McDaniel, void by reason of fraud ? The jury “ found no fraud on the part of the defendant, E. G. McDaniel.”</p> <p>Upon these findings of the jury, his Honor gave judgment for the defendants. From which judgment the plaintiff appealed.</p>

Civil action, (petition for Divorce a mensa et thoro,) tried before his Honor, Judge Buxton, at Spring Term, 1873, of Harnett Superior Court. The plaintiff and defendant had been married 46 years, had lived together until sometime in the year 1870, and had raised a family of children.

Indictment for larceny, tried before his Honor Judge IVatts, at Spring Term, 1875, of Wake Superior Court. The indictment charges the defendant with stealing “ one National Bank note of the denomination of five dollars, of the value of five dollars,” one Treasury note of the denomination of five dollars, of the value of five dollars, &e. Upon this indictment the defendant was tried and convicted.

Okiminal action, for failing to give in and list his poll tax, tried at the January Term, 18T5, of the Superior Court of Wake county, before his Honor, Judge Watts. The defendant was held to answer upon the following bill of indictment: “ TToRtii Caeolina, | Superior Oouri. 1Vahe Oouvty, j January Term, 1875.

Civil action, on the endorsement of a bond, tried before Tourgee, J., at Spring Term, 1874, of the Superior Court of GuilfoRD county. The following are the facts pertinent to the points decided in this Court: In December, 1863, the plaintiff loaned the defendant $2,000 in bank bills, and took his bond with security for its payment. Payments had bee,n made on this bond, reducing it to about $1,600 on the 24th March, 1865.

Civil actioh, in the nature of a quo warranto, contesting the right to the office of Judge of the 8th Judicial District, tried by consent, by Kerr, J., at Fall Term, 1874, of Oeange Superior Court, having been removed by consent from the Superior Court of Yadkin county. The following are substantially the facts submitted to his Honor, and upon which the judgment appealed from, was founded. At an election held in April, 1868, D. II.

Civil Action, in the nature of a quo warranto, to try the right to the office of Judge of the Second Judicial District, tried before Waits, J., at the January Term, 1875, of Wake Superior Court.

Civil action, in the nature of Trover, tried at the Spring Term, 1874, of Cumbeeland Superior Court, by Buxton, J. The necessary facts are fully stated by Justice Rodman. On the trial below there were a verdict and judgment for the plaintiff from which defendant appealed.

This was a Civil Action, to recover the possession of a certain horse and for damages, tried before Seymour, On the trial below, it appeared that one White, who was the father of the feme plaintiff, during his lifetime, gave to her the horse in controversy. That at the time of this gift, the feme plaintiff was only twelve years old, and the horse itself nothing but a colt.

Civil action to recover a tract of land, tried by consent, by Henry, J., at Chambers in Brunswick county, as of Spring-Term, 1874. The case had been referred to J. G. Martin, Esq., an attorney of the Court, to whose report the defendant excepted. Upon the hearing, the exceptions were overruled by his Honor and judgment rendered for the plaintiff, from which judgment the defendant appealed. The material facts are stated in the opinion of the Court.

Indictment, for a wilful injury to a dwelling house, tried at Pali Term, 1872, of the Superior Court of Edgecombe county, before his Honor, Judge Moore. On the trial below, the defendant was found guilty, and the Court pronounced judgment, from which the defendant appealed. There was no appeal bond filed nor any transcript sent to this Court at the term ; nor did the defendant file an appeal bond until the 1st day of December, 1871,' when the case was sent up.

This was a Civil Action, tried before Watts, J., at Fall Term, 1874, of the Superior Court of Yancey county. The suit is brought against the defendant Piercy, who was tax collector, and the sureties on his official bond, for a failure to collect and pay over the taxes of Yancey county. The defendant set up, as a counter claim, certain orders drawn upon the Treasurer of Yancey county, which orders the defendant have paid off.

This was a motion to set aside a judgment, before Henry, J., at Pall Term, 1874, of Wake Superior Court. The material facts in the ease are as follows; The plaintiff, Florence C. Harris, on the 1st day of September, 1873, signed a bond, conditioned for the payment of $45,000 (dollars), -whereby she became a surety for the collection of taxes by one T. F. Lee, then Tax Collector of Wake county. At the time of signing said bound, plaintiff was and still is a married woman.

Indictment for murder, tried before Henry, J., at Fall Term, 1874, of GRanyille Superior Court. The defendant Erancis Thorp was charged with the murder of her child by throwing him into a river. On the [trial below, a witness on the part of the State, swore that he saw the defendant and one Peter Groodwin going in the direction of the river about three-quarters of a mile from the ford where the child was found dead; that he knew the prisoner well, he also knew the deceased.

Civil Action, to recover money due on a bond, tried at Spring Term, 1873, of Stteey Superior Court, before Cloudy J., and a jury. Plaintiff declared on- a- bond, of the tenor following: “ $250.00 : One day after date, we- promise and- oblige our1-selves, our heirs, &c., to pay to Phillip Johnson, the just and full sum of two hundred and fifty dollars, borrowed money; value received, as witness our hands and seals, this 22d day of April, 185 — .

CeimiNAl action for refusing to work on a road, tried at the Fall Term, 1874, of Tyrrell Superior Court, before his Honor Judge Eure. The action, originally commencing: in a Justice’s Court, (Bat. Rev., chap. 104, sec. 10,) was carried by appeal on the part of the State, to the Superior Court.

Civil aotioN, to recover the rent of certain turpentine boxes,, commenced before a Justice of the Peace, and carried by the-appeal of the plaintiff to the Superior Court of Robbsost county,, and there tried before Clarice, J., at the January (Special) Term, 1874, of said Court. On the trial below, his Honor allowed the plaintiff to prove his discharge in bankruptcy, by his own parol testimony.

Civil ACTION, to recover the rent of certain turpentine boxes, commenced before a Justice of the Peace, and carried by the appeal of the defendants to the Superior Court of RobesoN county, where it was tried by Clarice, J., at January (Special) Term, 1874. In his complaint the plaintiff alleged, that in the year 1871, he rented to the defendants 6886 turpentine boxes, at $15 per thousand, amounting to $102.99, which has not been paid.

This was a petitioN in the canse to be allowed to amend the original petition, heard before his Honor Judge Albertson, at Chambers in PasquotaNK county. The petition was originally filed before the Judge of Probate, and the amendment allowed by him.

INDICTMENT, for malicious mischief, tried before Buxton, Ji, at Spring Term, 1874-, of Cumberland Superior Court.

Indictment, for criminal trespass on the land of the prosecutor, and cutting trees thereon, tried at the Eall Term, 1874, of Union Superior Court, before his Honor Buxton, J. The Grand Jury found a true bill against the defendant at Eall Term, 1873.

<p>Civil aotioN for the recovery of,land, tried before Cloud, J., at Spring Term, 1874, YadKIN Superior Court.</p> <p>The complaint alleges that plaintiff and others obtained a judgment against the defendant upon a note executed in 1866. That the judgment was duly docketed in the Superior Court of Forsythe county on the 13th day of January, 1869, and that it was afterwards, on the 13th day of March, 1869, regularly docketed in the Superior Court of Yadkin county. A fi.fa. was issued upon said judgment, and the land sold by the sheriff of Yadkin county. The plaintiff'became the purchaser at the price of $130. The sheriff of said county executed a deed conveying said land to plaintiff. After the judgment was rendered, the defendant had all of said land laid off as a homestead.</p> <p>The plaintiff further insisted that defendant is not entitled to said land as a homestead, because the debt upon which said judgment was rendered was contracted before the passage of the Homestead Act.</p> <p>The defendant demurred to the complaint and alleged that the said homestead was legal, and the sale thereof was void. That the plaintiff had not stated facts sufficient to constitute a cause of action.</p> <p>The Court below sustained the demurrer, and thereupon the plaintiff appealed.</p>

This was a Civil Action, for the recovery of damages, asising from alleged misrepresentations in the sale of a fishery, &c., tried before Albertson, J., at the August Term, 1874, of Peequimans Superior Court, into which it had been removed from the Superior Court of Dare county.

Civil action, to recover the value of a buggy, tried at the Spring Term, 1874, of Lenoib Superior Court, before his Honor, Judge Clarice. The suit was originally commenced in Onslow Superior ■Court and removed to Lenoir upon affidavit. The defendant was an officer, of the rank of Major in the infantry service of the Confederate States, and impressed from the plaintiff in the village of Kinston, in the Spring of 1865, ¡the buggy in controversy.

Givil Actioh, praying a Mandamus to the defendant, commanding him to issue certain grants, tried before his Honor, Judge Watts, at Chambers in the county of Wake, on the loth day of January, 1875.

Motion to set aside a judgment, heard by his Honor, Judge Albertson, at Spring Term, 1874, of Chowan Superior Court.. The following are the facts as found by the Judge of the-Gourt below and sent up to this Court as part of the record. The case was first tried before his Honor, Judge Watts and a jury, at Spring Term, 1873, when the jury returned a verdict for the plaintiff, and the Court rendered a judgment in accordance therewith.

PROCEEDINGS IN Bastardy, tried before his Honor, Judge Mitchell, at the Fall Term, 1871, of Alleghany Superior Court. Upon the trial below, the defendant moved to quash the proceedings, for defects apparent on the examination, and also because the Superior Court had no jurisdiction of the case, in its present condition. The examination was in the words; “State oeNorth Carolina, ] G1 d 0reek ToWnship.

<p>Civil AotioN, in the nature of Ejectment, for the recovery ■of a tract of land, tried before Hussell, J., at the Spring Term, 1871, of DupliN Superior Court.</p> <p>On the trial in the Superior Court, the plaintiff showed a judgment in favor of Thos. S. Keenan, administrator, against one ,Blaney Williams, Ivy Smith and J. E. Smith, obtained in the late Court of Pleas and Quarter Sessions of Duplin county, at the January Term, 1868. Execution regularly issued thereon, returnable to April Term of said Court, issuing the 8th day of February, 1868, and was returned endorsed, “ indulged by plaintiff.”</p> <p>Execution again issued from April Term, 1868; was placed in the hands of the sheriff, 2d May, 1868, who levied it on the land in controversy and sold the same in July, 1868, — the sale being postponed from day to day until the sale. The land was sold as the property of Elaney Williams, and purchased by the said Tbos. S. Iieenan, the plaintiff in the execution. The plaintiff then offered as evidence, the sheriff’s deed to Keenan, dated 25th July, 1868, aud a deed from said Keenan and wife, of date 16th November, 1868, all of which were duly proved aud registered in April, 1869.</p> <p>It was admitted on the trial that the defendants, the Smiths were in possession of the land in controversy, as the tenants of the other defendant, Williams.</p> <p>The defendants then offered in evidence, a judgment in favor of the defendant Harper Williams, against the said Blaney Williams, obtained at the Fall Term, 1867, of the Superior Court. Execution issued on the 9th day of January, 1868, which was returned by the sheriff to the Spring Term, 1868, endorsed as follows: “Levied this execution upon the interest of Blaney Williams in 202 acres of land, situated,” &e. “Returned to Court under ordinance of Convention.” The defendants also showed that a ven. eoe. issued on this levy, dated the 2d April, 1869, under which the sheriff sold the land, which was purchased by the defendant, Harper Williams, who took a deed from the sheriff of date 17th day of February, 1873, and which was duly proved and registered.</p> <p>It was agreed between the parties, that if, from the foregoing statement of facts, his Honor should be of opinion with the plaintiff, he should instruct the jury to return a verdict in his favor, with damages against the defendants; if otherwise, the jury should find for defendants.</p> <p>His Honor being of opinion with the plaintiff, so instructed the jury, who returned a verdict in his favor against the defendants. Judgment in accordance therewith; appeal by defendants.</p> <p>insisted:</p> <p>1. The title of defendant in the execution, passes to the purchaser by the sale, from the time of the sale; and no subsequent sale will affect his title for the reason there is no title in the defendant to sell. Bell v. Hill, 1 JElayw. 95, decided in 1794. See 85th page.</p> <p>2. In Ricks v. Blount, 4 Dev. 128, the Court say the rule laid down in Bell v. Hill, has never been questioned. The title passes to the first vendee and can never be defeated, but is valid for every purpose.</p> <p>3. The same doctrine is laid down again in Smith v. Sjgencer, 3 Ired. 258 ; Mardre v. Felton, Phil. 279.</p> <p>4. The Stay law of 1866 and also of 1868, unconstitutional. Jacobs v. Smallwood, 63 N. C. Rep. 112, and cases following. See also 8 Jones, 366.</p> <p>5. The priority of the lien of execution, as between creditors is of no moment, as it respects the title of purchasers. Such matters only govern the application of the proceeds of the sale. Woodly v. Gilliam, 67 ÜST. C. Rep., 237. In this case the marshal and sheriff both sold the same day; the marshal selling first. Isler v. Moore, ibid. 74.</p> <p>6. A sheriff, who advertises a sale of land, levied upon under execution, to take place on Monday, has a right, after postponement from day to day, to sell on Friday. Wade et al. v. Saunders, 70 N. C. Rep., 270.</p> <p>7. Where ven. ex. and fi. fa. was returned “ no sale on account of Stay law,” held that such was not a due return.-Aycoch v. Harrison, 63 N. C. Rep., 145.</p>

Civil Action, to recover certain fees, commenced in a Justice Court, in the county of Wayne, and carried by appeal before liis Honor, Judge Clarice, at Chambers, and determined by him on the 13th day of April, 1874.

<p>A person who borrows of another personal property, cannot avoid returning the same, or paying for it, by alleging that since he borrowed the property, the owner has gone into bankruptcy, and the property belongs to his assignee.</p>

This was a civil action to recover the value of two horses, tried at the January (Special) Tenn, 1874, of the Superior Court of Wake county, before his Honor Judge Tourgee. Held: that if defendant proved the contract as stated, such contract would reduce the responsibility of defendant from his liability as common carrier, to that of an unpaid bailee, and that the defendant would only be liable for want of ordinary care and skill.

Petitioh to RE-heaR the judgment in this ease entered in this Court at its January Term, 1873; and which is reported in the 68 N. C. Reports, 528. The facts of the case are fully stated in the report of the case at January Term, 1873.

Ceiminal action, (keeping an unlawful fence in crop time,) tried before Buxton, Jat the Pall Term, 1874, of Cumbee-land Superior Court. The action originally commenced in the Court of a Justice of the Peace, upon the complaint of one Sikes, August 31st, 1874. The Justice, taking final jurisdiction, fined the defendant $5.00, from which judgment, he appealed to the Superior Court.

<p>Tlie judgment of the Superior Court, upon the facts relied upon to sus] tain a motion under section 138, C. C. P. to set aside a judgment, as to the truth of such facts, is final. The judgment, as to their sufficiency in law, is subject to review.</p>

Civil action, on a guardian bond, tried at the Fall Term, 1874, of the Superior Court of Chaven county, before his Honor, Judge Seymour. This suit originally commenced at Spring Term, 1866, and was before this Court at January Term, 1871, (See 65 N. C. Rep., 265,) on exceptions, by plaintiffs and by the defendant, to the report of the Clerk of the Court below, to whom it had been referred to state an account of the defendants guardianship.

Indictment, for retailing spirituous liquors without a license, tried at the Fall Term, 18>74, of Clbaveland ¡Superior Court, before his Honor; Sehenelc, J. The facts, as found by the jury, before whom the case was tried in the Court below, are fully stated in the opinion delivered by Justice Settle.

<p>(For Syllabus see the preceding case, page 247.)</p>

Civil actioh, tried by Albertson, J., a jury being waived, at the August Term, 1874, of Peequma-NS Superior Court.

This was a civil actiom, for the recovery of §200, commenced in the Court of a Justice of the Peace, and carried by appeal to the Superior Court of Edgecombe, and tried before Moore, Y, at the July Term, IS'74, of that Court.

Civil actios, in the nature of Assumpsit, on a written contract, commenced in 1863, and tried by his Honor, Judge Wilson, at the Fall Term, 1874, of YadKIN Superior Court. The plaintiffs originally deolai ed in Assiumpsit, for damages arising from an aliened breach of the following written contract: “ Memorandum of a trade between J. & 0.

Cjml action, tried before Watts, J., at Spring Term, 1373, Halifax Superior Court. The facts necessary to an understanding of the case as decided in this Court are sufficiently set out in the opionion of the Court. From the judgment of the Court below against the defendants, they appealed to this Court.

Civil Action, in the nature of Ejectment, tried before-Watts, J., at Fall Term, 187-1, McDowell Superior Court. The action was brought to recover a tract of land, in the comity of Yancey, and removed upon the affidavit of the plaintiffs to the county of McDowell. Both the plaintiffs and the defendants claimed the locus in quo under deeds of conveyance from James and Robert Love, who were the owners of the land before the date of either conveyance.

PetitioN for a mandamus, beard before Tourgee, J., at January (Special) Terra, 1874, of Waice Superior Court. The petition was for a peremptory mandamus, to be directed to the defendant, as Treasurer, commanding him to pay the amount of certain warrants to the plaintiff. His Honor gave judgment for the plaintiff, and thereupon the defendant appealed. All the facts necessary to an understanding of the points raised and decided, are stated in the opinion of the Court.

Civil Action, tried before Kerr, -/., at Fall Term, 1874-,. Alamance Superior Court.

Civil Action, for an account and settlement of a trust fund,, heard upon exception to the report of a referee, before his-Honor, Kerr, The cause coming on to be heard in the Court below, upon-the report of O. P. Mendenhall, Esq., the referee, and the exceptions thereto, his Honor sustained certain exceptions to said' report and gave judgment against the defendant. From this judgment the defendant appealed.

<p>A defendant, entitled to a homestead in certain lands, which have been sold under an execution against him, is not estopped from claiming-his homestead, by accepting a lease for the same land from the purchaser at execution sale.</p> <p>This right to a homestead is no defense however by the tenant to an action to recover the premises brought by the landlord. The tenant must wait until his term expires, before asserting his claim to the homestead.</p>

Civil Action tried before Henry •/., at December (special) Term, 1874, Halifax Superior Court. This case was referred to David A. Barnes who filed the following report, to-wit: On the 18th of June, 1872, the defendants covenanted under their hands and seals, in manner and form as follows ; “ Know all men by these presents, that we Charles S. Smith and Wm.

Civil action, tried before Kerr, J., at FalljfTerm, 1874» Alamance Superior Court. The facts in the case, as disclosed by the record, are fully stated in the opinion of the Court.

Civil action, applying for an injunction against the collection of a certain judgment, tried at the Spring Term, 18ÍT4, of NoRthampton Superior Court, before his Honor, Judge Al-lertson.

Civil action, to recover possession of land and damages, tried at the Fall Term, 1873. of MqDowell Superior Court, (before Henry J., upon the following CASE AGREED. The plaintiff is the purchaser at a sheriff’s sale, under a judgment obtained in the Superior Court of Burke county, at Fall Term, 1869, commencing on the 10th Monday after the -3rd Monday in August, 1869, being the 25th day of October, 1869, by Jacob Harshaw’s executors against Robert Bnrgin,.

Oiyil Action, tried before Cloud, J., at August (Special) Term, 1874, Wilkes Superior Court.

Indictment for murder, tried before Seymour, J., at Fall Term, 1874, Wilson Superior Court. The defendant, one Simon Dildy, was charged with the murder of Charles Coy. On the trial, Henry Johnston, a witness for the State, testified : That he was one of a party that went out to arrest the prisoner on the day of the homicide.

Case agreed, heard before Watts, Jat Chambers January 9th, 1874, Halifax county. The following are the facts as agreed and signed by counsel: On the 8th day of December, 1873, the plaintiff Daniel Rahity, sued out attachments in divers cases, before a Justice .of the Peace, in and for the county of Halifax, against the property of Geo.

Petition for an injunction, heard before Henry,./., at Pall Term, 1874, Halifax Superior Court. The facts as found by the Court were as follows : The plaintiffs are owners of a grist mill.

Civil action, tried by Sohenole, Jat Pall Term, 1874, Oabakkus Superior Court. On the 15th day of October, A. D. 1859, John 0. Sossamer was seized in fee of a tract of land lying in the county of Ca-barrus. Sossamer contracted in writing to convey said tract of land to one Joseph Brown, for the sum of five hundred and fifty dollars, payable, by instalments, in five years. Under this contract Brown paid a part of the purchase money, and took possession of the land.

, at Fall Term, 18Jé. Obange Superior Court. The defendant moved for an order of inj unction to restrain the plaintiff from collecting the amount due on execution, on account of an alleged error in entering judgment for an excessive amount. A restraining order had been issued on the affidavit of defendant until the hearing.

<p>In an indictment against three for murder, charging that H, one of the prisoners, fired the gun, and that the other two were present, aiding and abetting: Meld, that it was not error in the Court below, to charge the jury, that if either of the prisoners fired the gun, the others, being present aiding and abetting, were equally guilty.</p> <p>Where, in an affidavit filed for the removal of a prisoner’s case, the facts, whereon the belief is founded are set forth, so that in the language of the statute “the Judge may decide upon such facts whether the belief is well founded,” the Judge acquires complete and final jurisdiction, his decision not being the subject of review by this Court.</p>

Ejectment, tried before Sehenek, J., at Eall Term, 1874,. Cleaveland Superior Court. This action was brought against W. H. Bostick and Hill Hammick at Spring Term, 1873, and at Fall Term, William Martin was allowed to defend as landlord of Hill Hammick. Hammick had been in possession of said land since 1869. The land in dispute originally belonged to D. D. Durham and was conveyed to Bostick in 1862 or 1863.

Indictment for Larceny, tried before Schench, J., at Fall Term, 1874, Cabarrus Superior Court. The larceny was alleged to have been committed in an alley eading from the Charlotte hotel to a livery stable in the rear of the lot, at the end of an omnibus, which stood near a shed.

Civil aotiou, tried at the December (Special) Term, 1873, of Halifax Superior Court, before his Honor, Judge Moore.

Motion in the cause that extra compensation be allowed the sheriii, over and above his taxed costs, heard by Tourgee, at Spring Term, 1874-, of Randolph Superior Court.

This was a Motion upon notice filed, to amend affidavits-for an attachment, and also a motion by defendants to vacate an-attachment, heard before Henry, J, at Fall Term, 1874, Wake Superior Court. The motion to allow the plaintiff to amend his affidavit, was-granted by the Court. The counsel for the defendants then moved, upon affidavits-to vacate the attachment.

Civil Action, commencing in a Justice’s Court, and carried by appeal to the Superior Court of Chebokee county, and there tried before Cannon, J., at Eall Term, Í 874. The complaint of the plaintiff is founded on a bond, execu-tad by the defendants for a certain tract of land.

<p>A testator devised to his -widow, for life, certain lands, and directed the same to be sold after her death and the proceeds divided, with certain limitations, among his children, to one of whom, Thomas, he had given a tract of land for life, with limitation to Ms wife, &c.: Held, that Thomas took only a life estate in the proceeds of the sale of his father’s land, and that the land devised to him for life, &c., is liable to be sold to repay such proceeds to the parties entitled.</p>

Indictment for Laeoent, tried before Henryr Jat Eall Term,. 1874, Geanyille Superior Court. The defendant was indicted for stealing a hog, the property of one Lowell Thorp. It was in evidence that on the morning of the day, on which the alleged larceny was committed, one Royster, a witness in the ease, was passing through a skirt of woods and saw Lowell Thorp feeding his hogs.

Indictment for assault and battery, tried before Watts, J., at January Term, 1875, Wake Superior Court. The defendant relied upon the plea of former conviction and punishment. It was in evidence that the defendant had committed an assault and battery upon one Holland, the prosecutor, in the presence of one L. B. Seagraves, a Justice of the Peace for the county of Wake.

Civil action, to recover damages for false imprisonment and malicious prosecution, tried before McKay, J., at Fall Term, 1874, Randolph Superior Court. The false imprisonment and malicious prosecution complained of, was in a criminal action before Isaac Spencer, a Justice of the Peace of said county, instituted by the defendant Arnold, against the plaintiff, under sec. 15, chap. 64, Battle’s Revisal, for the removal of a part of the crop by the renter.

<p>This was a motion to vacate an order of arrest, heard by his Honor, Judge Sussell, at chambers, in Bladen county, at Spring Term, 1^72, upon an appeal from an order of the Clerk of the Superior Court of said county.</p> <p>James K. Melvin, the administrator, had been fixed in the Probate Court of Bladen with assets to the amount of $308.88, for which amount this action is brought against him and his sureties. When the summons issued, Plenry Melvin, one of the plaintiffs, filed the following affidavit:</p> <p>-- “ That James K. Melvin was duly appointed and qualified as the administrator upon the estate of Sherrod Simmons, and took into his hands all the personal property of said Simmons, amounting to a large amount, and retained the same several years, without accounting with the plaintiffs who are entitled to the same. That an action was heretofore brought in the Probate Court of Bladen county, for the purpose of recovering the distributive shares of the plaintiffs from the defendant, and a final decree was made by said Court, in which it was adjudged that the defendant was indebted to the plaintiffs in the sum of $308.88, for which sum an execution was issued and returned uncollected.</p> <p>“ That the defendant, James K. Melvin, has misapplied the. assets of his intestate; that the defendant has been guilty of misconduct in not promptly paying over to the parties entitled to receive the same, the amount found due upon his account.”</p> <p>Upon this affidavit the Clerk issued an order of arrest, and the defendant was held to bail. Subsequently, after due notice, he applied to the Clerk to vacate said order, assigning the following grounds:</p> <p>1. That the cause of action is not within the provisions of C. C. P., section 149.</p> <p>2. That the affidavit is not signed by plaintiffs, or either of them.</p> <p>3. That the affidavit sets forth that there is a judgment against the defendant for the same cause of action, and for the amount this suit is brought for, and for which he is now held to bail in the cause.</p> <p>4. That the affidavit does not set forth how the funds have been misapplied.</p> <p>5. That the affidavit does not set forth that there has been any fraud or dishonest conduct or transaction in the management of the estate.</p> <p>The Clerk refused to vacate the order of arrest, and the defendant appealed to the Judge of the District.</p> <p>Upon the hearing at chambers, his Honor reversed the order of the Clerk, and vacated the order of arrest, from which judgment the plaintiffs appealed to this Court.</p>

This was an application for an Injunction against the Commissioners of Madison count}', heard before bis Honor Judge Watts, at Fall Term, 1874, of the Superior Court of said county.

MotioN to set aside a judgment heard before Bussell, J., at Chambers. The judgment was obtained at Spring Term, 1872, Bladen Superior Court, on a note under seal, made by the defendant to one Julia Callahan, which note had been transferred to the plaintiff, for value received. The plaintiff filed a complaint demanding judgment for four hundred and five dollars, with interest from May 24th, 1870, and for cost, $900.

PetitioN to set aside a decree and for other relief, heard before Logan, J., at Spring Term, 1874, MeciclenbuRG Superior Court. The following are the substantial facts, as found by the Court, by consent of the parties, and sent up as part of the record. James Lonnegan died in the county of Mecklenburg, in the year 1860, seized and possessed of a house and lot in the city of Charlotte, and a tract of land in the county of Gaston.

Civil actiou, on a guardian bond, tried before Buxton, J., at Fall Term, 1874, HARNETT Superior Court. One Alvin Avent died intestate in Harnett county, in 1862, leaving real and personal estate. Said Avent left one child, A. J. T. Avent, bis only son and heir at law, who is still under age.

Special ProceediNG, tried before Kerr, J., at Fall Term, 1874, Guilford Superior Court. A verbal application was made to the Probate Judge of For-sythe county by the plaintiff for an order upon the defendant to show cause why letters of administration granted to him on the estate of J. S. Gibson should not be vacated and the plaintiff appointed in his stead, as next of kin to the deceased.

Civil ActioN, in the nature of Assumpsit, tried before Hus-sell, J., at Spring Term, 1874, Duplin Superior Court. This suit was brought to recover the amount of a medical bill, beginning in 1854, and running up to the death of the testator of defendant in the month of November, 1861, and continuing after the death of the testator.

This was a OReditok’s bill, heard before Tourgee, J., at Spring Term, 1874, Guileord Superior Court. The bill was filed by the plaintiffs against the administrators and heirs of one Samuel Coble deceased to subject the real estate of the decedent or a portion thereof to sale, for the purpose of paying the debts of the plaintiffs.

Civil aotioN to recover title and possession of one half of a ferry, tried before Buxton, at Fall Term, 1874, of Staktly Superior Court. The ferry in question had been established by the Fayette-ville and Albemarle Plank Road Company, by authority of an act of the General Assembly, ratified 16th February, 1859. It was located at Swift Island, across the Pee Dee river. The plank road having fallen into decay, and being discontinued as a turnpike, S. IT.

Civil action, to recover the amount of a note alleged to be lost, tried before Cannon, J., at the Spring Term, 1874, of the Superior Court of Haywood county. On the 21st day of March, 1857, the defendant made the note sued upon, payable to J. R. Love, the testator of the plaintiff, as guardian of one M. J. Commons, a lunatic, for $756.54, J. R. Love continued to be guardian of the said lunatic, until his death in the Fall of 1863.

Proceeding- in Bastardy, tried at Pall Term, 1874, of Wilkes Superior Court, before his Honor, Mitchell, J. On the trial of an issue as to the paternity of the child, the defendant offered in evidence the deposition of a witness who was too sick to attend the Court. The reading of the deposition was objected to by the Solicitor, which objection was sustained by the Court. There was a verdict against the defendant. Judgment and appeal.

This was a Civil^Aotion, to recover damages for ponding water on plaintiff’s land, tried at the Eall Term, 1874, of Guilfobd Superior Court, before his Honor, Kerr, J. This case was before the Court at June Term, 1874, and is reported in 71 U. C. Rep., 338. It was sent back to be tried anew, and on the second trial the plaintiff had judgment. From this judgment defendants appealed.

Motion, in proceedings supplementary to execution, to subject assets in the hands of an administrator to the debt of the plaintiff, heard before Kerr, J., at the Fall Term, 1874, of Guilford Superior Court. The plaintiff, a judgment creditor of Donnell, the intestate of defendant, instituted proceeding supplementary to execution, against the said intestate, on the 10th day of February, 1871; and on the same day obtained an order for his, the intestate’s examination.

Civil action upon the bond of defendant as administrator^ heard by Wilson, J., npou a motion to confirm the report of the referee, at Fall Term, 1874, of Rowan Superior Court. The facts are stated in the report of the same case, at Jan-, nary Term, 70 N. C. Rep. 34.

Civil action, to obtain a construction of a will, submitted without suit by the parties to the controversy, and heard by Tourcjee, J., at chambers in Peeson county, July 25th, 1874, upon the following CASE AGREED. I. John A. Bailey died in Person county aforesaid, on the 30th day of May, 1874, leaving the following last will and testament, to-wit: “North Carolina, Pamcm County.

Motion to dissolve an Inj unction, heard by Logan, The plaintiffs alleged in their complaint, supported by affi davits, that the defendant by running their road over their land was greatly endamaging them ; that commissioners had been appointed to assess such damages, who did assess the same at $4349.50, from which assessment defendant appealed to the Superior Court, only to gain time; and that the defendant’s property was mortgaged for its full value, and they were likely…

Civil AotioN, heretofore before this Court, and reported in 70 N. C. Rep., 55, and sent back to the Superior Court of BuNcombb to have the judgment then appealed from modified, again heard before… Held: that the defendants were only chargeable with the value of the Confederate money received from Patty at the date of its receipt, instead of the full, (face,) amount of the note, and gave judgment accordingly. From this judgrnent, plaintiffs appealed.

<p>In a civil trial in the Court below, the presiding- Judge is- the proper person to determine whether the jury has returned a verdict, or only-tendered one; and he may, in his discretion, in view of all the circumstances,. discharge them or call them into- the box again, for the purpose of returning a proper verdict.</p>

Civil ACTIONS, originally instituted in the Superior Court of Stokes count)’, and thence removed to the Superior Court of Fokstthe County, and tried by Wilson, J., at Fall Term, 1874. The two suits 1 and 2, involving the same points were agreed to be tried together by his Honor, without the intervention of a jury, who found the material facts to be. 1.

Thdictment for entering on the land of the prosecutor and taking therefrom turpentine, tried before Buxton, J., at the Spring Term, 1874, of RiohmoND Superior Court. Upon the trial in the Superior Court, exceptions were taken to the admission of certain evidence, and to the charge of his Honor on certain points, not necessary to set out in this report, as the case was decided in this Court upon the refusal of the Court below to arrest the judgment.

INDICTMENT for rape, tried before Kerr, Jand a jury, at the Fall Term, 1874, of Guilfoed Superior Court. The prisoner was arraigned and found guilty on the following indictment : “ State of Noeti-i Cabolina, 1 Superior Court, Guilford county, j December Term, 1874.

Civil Actioe, to recover the amount of certain notes, and that certain land shall be charged with the payment of the same, heard before Sahenok, J., at the Fall Term, 1874, of Cabarrus Superior Court. No statement of facts is necessary in this case. From the refusal of his Honor to give judgment on the pleadings, the plaintiff appealed.

PbtitioN, to vacate and set aside a decree, heard before Moore, J., at the Special (July) Term, 1873, of MecKdeNbukg Superior Court. This action was brought by one who was rightfully entitled to a share of the land sought to be divided, under a petition for partition in 1860, in the former Court of Equity, but who was not, nor never has been a party to the pleadings, for the purpose of vacating or reforming the decree made in such original suit.

Civil aotioN. Ejectment to recover certain lands, tried before his Honor, Judge Cloud, at the August (Special) Term, 1874, of WilKes Superior Court. The following are the substantial facts, as agreed and signed by the counsel of the contesting parties: The plaintiff introduced a grant and deeds which he .alleged covered the tract of land described in his complaint, .and offered testimony tending to show that they did cover said ■land.

This was a civil action by a sheriff against his deputy for a misfeazenee in office, tried at the Spring Term, 1871, of the Superior Court of Ashe county, before his Honor, Mitchell, J. The substantial facts are fully set out in the opinion of Justice BtNüm. On the trial below, the plaintiff' had judgment, from which defendant appealed.

Civil agtioN, originally commenced before a Justice of the Peace and carried by a Recordari to the Superior Court of TRANSYLVANIA comity, where it was tried before his Honor, Judge Qannon, at Fall Term, 1874. The facts are substantially the following : A judgment was obtained by the plaintiff against the defendant on the 22d day of May, 1871, for $11.22, which was docketed and thus became a judgment of the Superior Court, August 12th, 1871.

Indictment, larceny, tried before his Honor, Judge Fchenck at the Fall Term, I8J4, of the Superior Court of Cabakeus county. The defendant was charged with stealing Mrs. Mary Groner’s chickens, and on the trial in the Court below, the following facts were established. The defendant lived with a Mr. Li taker, whose premises adjoined those of Mrs. Groner, the prosecutrix.

Indictment, for an assault with intent to commit a rape tried before Henry, J., at Fall Term, 1874, Halifax Superior Court.

Civil action, begun at Spring Term, 1872, Halifax Superior Court, and tried at January (Special) Term, 1874, before 'Henry, J., upon the following case agreed : At Spring Term, 1867, of the Superior Court of Halifax county, one Thomas Fitzpatrick was appointed and duly quali-lied as Clerk and Master of the Court of Equity for said county.

Indictment, forcible trespass, tried at Fall Term, 1874, of Halifax Snperior Court, before his Honor Judge Ilenry. When the case was called in the Court below, it was moved for the defendant, to quash the indictment for want of jurisdiction. His Honor allowed the motion, whereupon Solicitor Harris appealed.

<p>Where, upon the trial of an ir dictment for murder, a juror related to the prisoner was passed by the State, the Solicitor being ignorant of such relationship, and upon being tendered, made known the relationship himself, before being sworn: Held, that it was not error for the Court to stand such juror aside until the panel was completed.</p> <p>Where a prisoner relies upon the plea of insanity, but there is no evidence whatever that he had ever exhibited any sign of insanity, evidence tending to show that some of his uncles and aunts were insane, is inadmissible.</p> <p>Section 115 of chapter 31, Rev. Code, relating to the removal of causes, not being digested nor brought forward, is not repealed by section 3, chap. 131, Bat. Revisal; and the Superior Courts have the same authority to remove criminal causes to adjacent counties, as they had before the compilation of that Revisal.</p> <p>The sentence of the Court must be carried into execution by the sheriff of the county in which the prisoner is tried.</p>

Civil aotioN, tried before Cloud, •/., at August (Special Term, 1874, Wilebs Superior Court. This action was brought to recover the value of a yoke of oxen and a wagon. The defendant offered in evidence a judgment and execution against one Fletcher, for forty odd dollars, The execution was dated Jan. —, 1869.

INDICTMENT, for burglary, tried before Kerr, J., at December Term, 1874, GuilfoRD Superior Court. The burglary alleged was the breaking into and entering the house of J. I. Seales, in the city of Greensboro’, N. C., on the night of the 8th of August, with the intent to steal, and stealing and carrying away a watch and' chain, the property of J. I. Scales.

MaNdamus, tried before Mitchell, J., at Chambers, at January Term, 1875, Caldwell Superior Court. The plaintiff, the Chester and Lenoir Narrow Gauge Railroad Company, brought an action against the defendants, for a mandamus, to compel them to subscribe for certain stock in the Company of plaintiff.

This was a Petition to set aside a decree of sale, made by the Probate Court, upon the petition of Zachariah E. Shearin, administrator of John P. Shearin. The facts in the case are as follows : On the 29th of March, 1872, Zachariah ,E. Shearin filed a petition in the Probate Court of Warren county, for the sale of a tract of land, of which his intestate died seized, for the payment of his debts.

Civil actioN tried before Tour gee, J., at the Spring Term, 1874, of the Superior Court of RaNdolpii county. All the facts necessary to be stated are found in the opinion •of the Court. His Honor, on the trial below, dismissed the action, from which judgment the plaintiff appealed.

Civil aotioN, tried before Ciarle, J., at Spring Term, 1874, ,of CARTERET Superior Court. The plaintiff, Amos Wade, instituted an action in the Supe-rior Court of Craven County to recover damages for the breach of a contract alleged to have been made between the plaintiff and the defendant, the city of Newborn. The cause was subsequently removed to Carteret county. Upon the trial a verdict was rendered in favor of the plaintiff’, and the Court gave judgment accordingly.

Civil action tried before Hilliard, at Fail Term 1874, of Bertie Superior Court. The defendant demurred to the complaint of the plaintiff, for the misjoinder of several causes of action. Iiis Honor on motion of the plaintiff overruled the demurer,, aud the defendant appealed. The facts necessary to an understanding of the case are stated in the opinion of the Chief Justice.

Petition for a homestead by infants, to a Justice of the Peace, and carried by appeal to Watts, J., before whom it was heard at Chambers in Halifax county, on the 4th day of August, 1874. The facts are agreed and are fully set out in the opinion of the Court. His Honor, on the hearing before him, granted the prayer of the petitioners, whereupon the defendants appealed.

<p>Where after the death of an administrator and before the appointment of an administrator de lonis non, the next of kin brought an action upon the administration bond: Held, that the estate was in abeyance, and neither the next of kin nor any one else except an administrator de lonis non, had a right of action against the bond of the original administrator.</p> <p>In such case, after action brought, the Superior Court has no power to amend the pleadings by striking out the names of the relators and inserting that of an administrator de lonis non subsequently appointed.</p>

Civil action, in the nature of Trover, for the conversion of a still, &c., tried before líerr, J., at the Fall Term, 1874, of Chatham Superior Court. In his complaint, the plaintiff alleged that he was the owner of a certain still, and that the defendant converted the same to his own use. The defendants answer denies the allegations of the complaint, without exception.

<p>A special proceeding, under sec. 73, chap. 45, Battle’s Revisal, differs from a creditor’s bill, in that in the latter all the creditors may make themselves parties, while in the former they are required to do so.</p> <p>A Judge of Probate has no power to make to himself an allowance “ for his services in stating an accountnor has he the power to make an allowance to the attornies of the creditors for services in their behalf.</p> <p>The cost in such proceedings must abide by the provisions of chap.1105, Battle’s Revisal.</p>

<p>Civil action for the recovery of a note of hand, tried by his Honor Judge Kerr, at Fall Term, 1874, of Guilvoed Superior Court.</p> <p>The case had been submitted to referees, who found for the plaintiff. This finding was affirmed by the Judge of the Superior Court, when the defendant appealed.</p> <p>The facts are sufficiently set out in the opinion of Justice Rodman.</p>

Indictment for larceny, stealing bank and IT. S. Treasury notes, tried before Buxton, J., at the Fall Term, 1874, of Anson Superior Court.

This was a CONTROVERSY, submitted without action, to Oan-non, J., and by him heard at Chambers in Jackson county upon the following facts : The parties to this action agree to the following statement of facts, and submit them to the Court for its judgment thereon.

Special proceedings, tried before Tourgee, J., at Spring Term, 1874, Oeange Superior Court. * 'This was a motion under sec. 85, C. C. P., to bo allowed to defendant after j udgment, and asking a writ of recordari to bring up certain proceedings before a magistrate necessary to defence against the judgment, and also to cancel a deed made by the Sheriff of Orange to one S. M. Barbee, conveying certain property sold, under execution.

Civil action, tried before Seymour, J., at Pali Term, 1874, CRAVEN Superior Court. This was an action for the claim and delivery of personal property. It was admitted that the summons was issued on the Saturday next before the Fall Term, 1874, of Craven Superior Court. The defendant moved to dismiss the action on the ground that the summons was void.

Civil Action, to compel the defendant to correcta mistake in a deed, tried at Spring Term, 1874, of CabaeRUS Superior Court, before his Honor, Logan, J. All the facts necessary to present the points decided in this Court, are stated in the opinion of the Chief Justice. On the trial below, the plaintiff moved for judgment against the defendant for the facts stated in the opinion, which motion being refused, the plaintiff appealed.

Divorce a vinculo matrimonii, tried before Buxtond J., at Pall Term, 1874, of Anson Superior Court. The parties were married 9th of March. 1864. The application for divorce is made by the plaintiff, because of alleged acts of adultery committed by the defendant. The suit was commenced by summons 9th of September, 1873. The defendant makes defence, denies the imputed criminal acts, and in bar of the plaintiff’s suit charges him with the commission of adultery.

<p>Where, upon a trial in the Court below, the plaintiff asked for a new-trial, and upon its being refused, appealed to this Court, and at the same time the defendant appealed; and in this Court, the judgment of the Court below was affirmed, dismissing the plaintiff’s action; in such case, the appeal of the defendant to this Court will be dismissed with costs.</p>

Civil action to recover the value of a slave, named Barbara, tried before Moore, Jat the July Term, 1874, of the Superior Court of Edgecombe county. The following are the material facts presented by the record : The slave, Barbara, was sold in September, 1862, by David Barlow, the plaintiffs testator, to one William Norfleet, the intestate of the defendant.

This was a civil action, tried before his Honor, Judge Wilson, and a jnry at Fall Term, 1874-, of Davie Superior Court. The plaintiff declared in tort against the defendant as his agent.

<p>The Act of 1866-'G7, chap. 18, sec. 1, relates only to debts and causes of action arising out of new matter, and transactions subsequent to the 7th day of May, 1865, and was not intended to embrace old debts or transactions occurring before that date, out of which causes of action might arise after that date. Therefore, where in an action on a guardian bond, the plaintiff, a, feme covert, became of full age in 1866, married in 1869, and instituted the action in 1874: Held, that the statute of limitations did not bar the right of action.</p> <p>The provision of the 0. 0. P., allowing a feme covert to sue or be sued concerning her separate property does not remove the disability of coverture, so as to allow the statute of limitations to bar a feme covert’s right of action.</p> <p>The right of suing alone is a privilege which may be used for the advantage of a feme covert, but a failure to exercise this privilege, eannot operate to her prejudice.</p>

Civil action, for the recovery of money upon a guaranty, tried before Wilson, J, at the Fall Term, 1874, of Davie Superior Court, upon the following CASE AGREED. Held: without instituting suit until his death in 1867, and which have never been paid. (d.) That plaintiff', prior to 1862, placed the note on S. L. Howell in the hands of an attorney for collection, and subsequently instructed him not to sue.

This was a motion to set aside a complaint, heard by his Honor, Judge Tourgee, at Spring Term, 1874, of Guileoed Superior Court. At the return term of the summons and before answer filed, the counsel for the defendants moved to set aside the complaint filed by the plaintiffs in the cause, upon the following grounds: 1.

Civil Action, tried before his Honor, Gloud, at Spring Term, 1874, of Stokes Superior Court. Upon the trial below, the jury having responded to certain issues submitted to them, his Honor gave judgment for the defendant. From this judgment plaintiffs appealed. All the facts necessary to an understanding of the points decided, are stated in the opinion of the Court.

Civil actioN, heard before Albertson, J., at Spring Term, 1874, of NobtiiaMptoN Superior Court. On the 28th day of January, 1862, one N. M. Long, Jr., gave a sight draft on Col. N. M. Long, for the sum of four hundred dollars, payable to Mrs. M. W. Ransom or order. This draft was transferred to the defendant, and by him transferred to the plaintiff. This action was brought to recover the value of the draft, with damages.

Special Prochedikg beard upon appeal from the Probate Court, before Seymour, J., at Chambers, Fall Term 1870, LeNoir Superior Court. The following are the facts as found by his Honor : 1.

This was a motioN to set aside a sale of land, made by executors, before tbe Probate Judge of Hendeeson county, and heard upon appeal by Henry, J., at Chambers, on the 27th day of June, 1874. A special proceeding had been brought by the plaintiffs, as executor and executrix of one Joseph Hoots, before the Probate Judge, asking the sale of land for assets. The parties interested were all brought into Court, and the Probate Judge ordered the sale as prayed for.

Civil aotion commenced in a Justice’s Court and carried by recordari to the Superior Court, and tried before 8chenck, J., at Fall Term, 187J, Cabarrus Superior Court. At the hearing a motion was made to transfer the case from the summons docket to the civil issue docket. The motion was overruled by the Court and the defendant appealed. The facts necessary to an understanding of the case are stated in the opinion of the Court.

Civil actioN, tried before Waits, J., at Spring Term, 1874, Nash-Superior Court. The suit was brought to recover damages for injuring a cow, and was referred to John IT.

Civil action, in the nature of Ejectment, tried before Henry, J., at Spring Term, 1874, Bueke Superior Court, having been removed from Caldwell. Among other things the defendant alleged that the only title the plaintiff had to the land, was under an deed from the sheriff of Caldwell county, made in pursuance of an execution in his hands against the defendant, and that the sale of the sheriff was void, on account of his failure to lay off a homestead for defendant.

<p>Where the gravamen of the plaintiff's complaint is that the execution of a certain deed was procured by fraud and undue influence, it is error to submit, to the jury issues which involve matters of evidence only tending to establish or deny the main issue.</p>

SuMMary Proceedings, under the “ Landlord and Tenant ” Act, commencing in a Justice’s Court, and carried by appeal to the Superior Court of Ashe where it was tried before Mitohell, J., at Spring Term, 1874.

MotioN to vacate an order of arrest, heard by his Honor, Judge Tourgee, at Chambers in Guileoed county, on the 25th day of January, 1875. The defendant lived in Indiana, and had come to Greensboro’, at the request of counsel to give evidence in a certain action then pending in the Superior Court of Guilford, wherein Hittle was plaintiff, and Ballinger, the plaintiff in this action, was defendant.

Iudictment for Burglary, tri 1874, Peeson Superior Cour fore Kerr. J.; at Fall Term, The defendant, John Outl, two counts, the first chargi dwelling house of one Jo was charged with burglary in the house broken into as the Cunningham, and the second as the house of one James E. Harrias. Upon the trial the Court directed ten talesmen to be summoned from the bystanders, in addition to the original panel.

Civil aotiok in the nature of ejectment, tried before Cannon, J., at Pall Term, 1873, Surry Superior Court. The plaintiff claimed title to the land in controversy, under a deed made in pursuance of an execution, under a judgment of a Justice of the Peace, against one Elizabeth Butcher. There was no controversy as to the regularity of the proceedings under which the deed was executed.

Indiotment for Murder, tried before 8chenolc, The prisoner Robert A. Owen, was charged with the mnr-der of John W. Cheek, in the county of Gaston, on the 24th of September, 1873.

Civil action, tried before Sohenoh, J., at January Term, 1875, Mecklenburg Superior Court. This case was originally tried before Moore, ¿f., at July Term, 1873, of Mecklenbueg Court, upon a case agreed, which is fully reported in 70 N. C. Rep., 283. His Honor gave judgment against the defendant, who appealed, and in this Court the judgment below was reversed and the case ¡remanded..

Civil action for the recovery of a legacy, tried before Watts, J., at Fall Term, 1873, Waite Superior Court.

This was a civil aotiow, to recover the amount of certain bank bills, tried at the December (Special) Term, 1873, of the Superior Court of Guilfoed county, before his Honor, Judge Henry, upon complaint and demurrer.

Civil action, tried before Henry, J, at December (special) Term, 1874, of Guilfoed Superior Court. The facts necessary to an understanding of the case are set out in the case of Glenn v. Farmer's Bank of K. C., 71 JST. C. Rep., 191. The defendant demurred to the complaint, alleging— L. That it is admitted in the complaint that the plaintiff has other actions pending in this Court, by appeal, and yet undetermined, against the defendant for the same cause of action. 2.

This was a Bill isr Equity, filed .in 1868, and heard before Watts, J., upon exceptions to the report of the referee at the Spring Term, 1874, of the Superior Court of Geantille county. The original bill was filed by the plaintiff against 1). C. Herndon, the testator of the defendant and the plaintiff’s guardian, for an account and settlement of the guardianship.

This was a civil action, applying for an Injunction, heard by his Honor Judge Albertson, at Chambers, in Wake eovmty, at Spring Term, 1875.