Volume 73 — North Carolina Reports

Civil aotioN, for the recovery of the possession of real estate, tried before Moore, J., at the July (Special) Term, 1874, of Edgboombe Superior Court, upon the following “ CASE AGREED. Bythel Bell, of Edgecombe county, died in 1802, leaving a will which was duly proved and recorded, and a copy of which is filed, &c. Ilis widow and five children, to wit, Marmaduke N. Bell, Henry C. Bell, William W. Bell, Elizabeth Bell and Margaret Bell survived him.

Ciyxl aotioN, tried before Mitehell, J., at Spring Term, 1875, Catawba Superior Court. The-action was brought for the purpose of cancelling a deed, .and also to restrain the defendant from bringing suit to recover the tract of land in controversy. The facts in the ease are as follows: In 1852 ,one Nelson Sherrill conveyed in fee to Nobert Sherrill, the ancestor of the defendants, a tract of land in the •county of Catawba, containing about sixty-two acres.

Case ageeed, and submitted without action, and heard before M.oKcuy, J., at Chambers, in the county of Guileoed. The facts agreed are as 'follows : Eli Murray, late of Alamance county, died in 1870, seized in fee of a tract of land on which he lived, containing about five hundred acres. That he left a last will in writing, duly executed, so as to pass both real and personal estate, which after his death was duly proved and recorded in the Court of Probate for Alamance county.

Civil ActioN, for an account, originally begun in the Probate Court, from which it was transferred and tried before McKay, J., at Spring Term, 1875, Pekson Superior Court. All the facts necessary to an understanding of the case as decided in this Court, are stated in the opinion of Justice ByNüM.

Civil aotioN, tried before McKay, J., at Spring Term, 1875, PeesoN Superior Court. The facts in the case are not necessary to an understanding of the case as decided in this Court.

INDICTMENT for Laremy, tried before Eure, J., at Spring Term, 1875, PasquotanK Superior Court. The indictment charged the defendant with stealing two coats, the property of one S. S. Fowler, and also it contained a count charging him with receiving the coats knowing them to have been stolen.

<p>Appeal from a Justice’s Court, tried before Albertson, J., at Spring Term, 1874, Cueeituok Superior Court.</p> <p>The action was brought upon the following bond :</p> <p>On demand, with interest from the 28th of May, 1850, and for value received, the undersigned promise to pay toHodgers Gallop or order, two hundred dollars for value received. Witness our hands and seals.</p> <p>R. R. HEATH. [l. s.]</p> <p>B. F. SIMMONS, [l. s.]</p> <p>The defendant pleaded the statute of limitations, to which the plaintiff replied, partial payment within ten years. The plaintiff offered in evidence a receipt upon said bond, and introduced II. Gallop, the payee of the bond, who swore that the receipt endorsed upon said bond was for money due to R. R. Heath for professional services, and so credited.</p> <p>The plaintiff then offered to prove that the bond had not been paid. .Both the obligors of the bond being dead, his Honor ruled out this evidence. To this ruling plaintiff excepted.</p> <p>His Honor being of the opinion that the receipt on the bond and the evidence of G-allop, the payee of the bond, were not sufficient evidence of a payment within ten years, gave judgment for the defendant. Thereupon the plaintiff moved for a new trial. The Court refused the motion and the plaintiff appealed.</p> <p>1. It is the payment of part of a bond, not the endorsement of such payment, that repels the presumption from lapse of ten years of payment of the bond. 2 Greenl. Ev., sec. 444.</p> <p>2. The endorsement is only evidence to prove the fact of such payment when in the handwriting of payee and in the absence of evidence of knowledge or assent of obligors thereto, when it is shown thaf such payment was evidenced before the presumption of payment arose. Williams v. Alexander, 6 Jones, 137.</p> <p>3. Admissions made after such lapse of time by one of several makers, not admissible against the others. Rev. Code, chap. 65, sec. 22.</p> <p>4. The payee was not a competent witness to prove the fact of payment in favor of the plaintiff who claims under him. People v. Maxwell, 64 N. C. Rep., 313; Isenhour v. Isenhour, 64 N. C. Rep., 640; Hallyburton v. Dobson, 65 N. C. Rep., 88 ; State v. Morris, 69 N. C. Rep., 444.</p>

Civil actioN, tried before Kerr, J., at Fall Term, 1874-,. ORAng-e Superior Court.. The summons was originally issued against the defendant as surviving partner of E. F. Morris & Son. At Fall Term, 1874, the plaintiff obtained leave to amend his complaint (which was granted on payment of cost), by adding a complaint against the defendant as exeoutor de son tort of Eobert F. Morris, deceased.

<p>INDICTMENT, Larceny, tried at the Spring Term, 1875, of Bebtie Superior Court, before his Honor, Judge Moobe.</p> <p>The facts pertinent to the points decided in this Court, together with the evidence relating thereto and the exceptions taken, are fully set forth in the opinion of Justice ByNum.</p> <p>His Honor, on the trial in the Court below, overruled the exceptions of the defendant in relation to rejection of certain evidence offered by him, and also the defendant’s objection to the verdict as recorded. From the rulings of his Honor, the defendant appealed.</p>

Civil actioN for damages, tried before Moore, J., at July Term, 1874, Edgeoohbe Superior Court. The plaintiff alleged that on the 15th day of February, 1878, Stern & Goodman obtained a judgment against him, before a Justice of the Peace, for $18.25 and -cost. On the 15th of February, 1873, a fi. fa. was issued on said judgment, and delivered to the defendant, who was then the duly elected and qualified sheriff of Edgecombe county.

Civil actioN to recover the value of a horse, tried before Clark, J., at Fail Term, 1874, RobesoN Superior Court. All the facts necessary to an understanding of the case are Stated in the opinion of the Court. There was a verdict and judgment in favor of the plaintiff, and the defendant appealed.

Civil ACTION and application for an Injunction, heard before Mure, J., at the Eall Term, 1874, of Oi-iowAN Superior Court. The following are the material facts, as transmitted by his Honor to this Court, as'a statement of the case: The plaintiff is the owner of a ten year lease of a fishery on Albemarle Sound, known as Long Beach Fishery, and began to repair his beach, windlasses, &c., sometime in the summer of 1874.

<p>PetitioN for an injunction, tried before Eure, J., at Chambers in Peequimans county, April loth, 1875.</p> <p>\ The plaintiff instituted an action against the defendants upon ¡certain notes secured by deeds in trust, and moved the Court for an order restraining the defendants from selling the real estate conveyed by the trust deeds, under a prior deed in trust, until the equities of the several parties might be adjudged. As the case was decided in this Court upon a rule of practice it is unnecessary to state the facts further than set forth in the opinion of the Court.</p>

Supplementary Prooeedings, under the provisions of the-Code of Civil Procedure, sec. 266, heard, upon a motion to. amend the pleadings and make new parties, before his Honor,. Judge Pmrey at the Spring Term, 1875, of Chow AN Superior Court. The facts pertinent to the point decided in this Court at this term, are sufficiently stated in the opinion filed by Justice-Bynum:.

PeutioN for a habeas corpus, heard before Watts, J., at Spring Term, 1875, of NoetiiaMptoN Superior Court. The Solicitor filed the following affidavit: * * * “ that Cornelius Williams is now in the jail of this county, having been convicted at Fall Term, 1874, of this Court, of the murder of one Samuel Presson ; that said Williams appealed to the Supreme Court, and that the judgment of this Court was affirmed.

This was a civil aotioN brought to recover the value of a lot of brandy, tried at the Spring Term, 1871, of Bertie Superior Court, before his Honor, Judge Albertson. On the trial before, it appeared that the wife of the male plaintiff, then Mrs. Shields, delivered in February, 1863, to a negro wagon driver, belonging at the time to the testator of the defendant, eighty-five gallons of apple brandy, for which she charged $5 per gallon.

<p>PetitioN to re-hear this case, which was decided in this Court at January Term, 1874.</p> <p>The case is fully reported in 70 N. 0. Rep., 450.</p>

INDICTMENT for larceny and receiving stolen goods, tried at the Spring Term, 1875, of Ieedell Superior Court, before bis Honor, Judge Mitohell.

This was a MotioN to amend the return of a sheriff, heard before Clarke, J., at the Spring Term, 1874-, of the Superior Court of ONSLow county. The following are the substantial facts as they appeared upon the hearing in the Court below, and which are certified to this Court by the Judge presiding, the counsel for the parties litigant being unable to agree upon a statement of the case.

Civil actioN, tried before Kerr, J., at Fall Term, 1874, Rockingham Superior Court. The following are the substantial facts necessary to an understanding of the case as decided in this Court: The defendant, Albert Lomax, was appointed guardian of the feme plaintiff (who was at that time a minor and unmarried) on the 27th day of May, 1851. On the same day he executed his bond and assumed the duties of guardian.

Civil actioN, tried before Wilson, J., at Fall Term, 1874, RcmAN Superior Court. This case was before this Court at January Term, 1874, and is fully reported in 70 N. C. Rep., 27. The defendants alter notice and upon affidavits filed in the cause, moved the Court to amend the record, nunc pro twie, so as to show that the order of reference heretofore made was not by consent, but compulsory, which motion was refused by the Court.

INDICTMENT for highway robbery, tried before Sohenelc, J., at Spring Term, 1875, Ruthskeoed Superior Court. Only two witnesses were in trod need, and both of these testified on behalf of the State. W. A. Owens, the prosecutor, testified that he and his brother had been to Spartanburg, in the State of South Carolina, to market. That he went in a wagon, his brother, P. W. Owens, accompanying him. lie was fifteen years of age, and his brother three or four years older.

<p>Cwi!. an i>ij n. ¡ir ¡ i >i ¡ )N for a tre-¡nsi on land, and an application for i > - >n, heard Fibre <’/oud, J., at Chambers, in the i'f ñ h, 1 tíT5.</p> <p>. rec >r-l Co o '’ : i-¡.i.ring statement, i;>■ aed by counsel, is sent with the :; containing fien mi .Indent for the decision of this</p> <p>injum Ch.ii-'> a motion uiii-ii notice to the plaintiff, to dissolve the heretofore grume 1 without notice by his Honor at</p> <p>T‘> • I for = dam ■;,< gra- ■ i fon i.-.-i' am- c nv mo - ■ " .-i i miff brought a civil action against the defendant • or.., on his l:ui-l, claiming one hundred dollars ■ aho praying for an injunction. The injunction was -■o ..i the plaintiff ’« affidavit, without notice to the de-t )n the same day the summons was issued ; and after ; ■ dm plaintiffhs complaint, the defendant, upon notice, <■ ¡¡'.solve ihe injunction.</p> <p>IU. Í tiv- ■■ ■ and mem 'U: ! n >r, after heating the affidavits offered by the respec-■i-v, gave judgment rofuMng the motion to dissolve, ' . ,cd the injunction to the hearing. From this judg-fcn-lant appealed.</p>

Indigtmisist for larceny, tried before Kerr, J., at Spring Term, 1875, Brunswick Superior Court. The defendant ivas arraigned and tried upon the following bill of indictment, to-wit: “ State of North Carolina, ) Brunswick County.

Case agreed, tried before OlouA, J., at Spring Term, 1875, Davie Superior Court. The following are the facts agreed : This is an action for the specific performance of a contract to convey real estate. The following is the contract: North Carouina, 1 J J 4th.1863.

Case ag-beed, heard before Watts, J., at June Term, 1875, Halifax Superior Court. Held: That although no allusion to this was contained in the bonds given for such hires, it was competent for the obligors to show the proclamation and also the market value of the notes of the bank. Woodfin v. Sluder, Phil. 200. Action on bond made 14th November, 1863, payable two years after date in current funds of the country when due.

Civil aotioN, tried before Russell, J., at Spring Term, 1874, Bladen Superior Court. The complaint alleged : That previous to the commencement of this action, the plaintiff commenced an action against the defendant, David lewis, for the recovery of real estate, and damages for withholding the same.

This was a civil ACTION to recover possession of real estate, tried before his Honor Judge Eure and a jury, at the Spring. Term, 1875, of the Superior Court of ChowaN county. The facts relating to the points decided in this Court are substantially the following: In April, 1863, James 0.

INDICTMENT for breaking, &c., a store house, with intent to steal therefrom, tried in Graven county at the Fall Term, 1874, of the Superior Court, before his Honor, Judge 8eymov/r. The defendant was convicted on the following indictment, to-wit: “The jurors,” &e., “present, that Edward Dozier, late of Craven county, on the 20th day of September, A. D. 1874, with force and arms, at and in said county, about the hour of 10 o’clock in the night time of the same day, the store…

Civil aotioN, in the nature of a special proceeding, to recover a legacy, tried at the January (Special) Term, 1875, of the Superior Court of Watch County, before his Honor, Judge Henry.

Civil actioN, tried before Moore, J., at Spring Term, 1875,. Pitt Superior Court. The plaintiff declared upon the following bonds: “ Greenville, N. C., Feb. 1st, 1862. $133.00. For value received I promise to pay to A. & W. J. Evans or order, one hundred and thirty-three dollars, with interest. Witness my hand and seal.

Special Pkoceedikg, begun in the Probate Court, and heard upon appeal before Logan., J., at Spring Term 1874, Lincolk Superior Court. The plaintiff alleged that in October 1872, he purchased a tract of land sold under a decree of Court, and a deed was executed to him and the defendant as tenants in common.

<p>The removal oí a criminal case from one county to another, upon the affidavit of the prisoner, lies within the discretion of the presiding" Judge of the Court below; from the exercise of which discretion no-appeal will generally lie.</p>

Civil actioN, on a guardian bond, tried before Moore, J., at Spring Term, 1874, Edgecombe Superior Court. This action was brought against the defendant as surety on 'a bond executed by John E. Speight, as guardian of his relator the execution of the bond not being denied.

Case agbeed, heard before Clarke, J., at Spring Term, 1874, WilsoN Superior Coart. On the 10th day of September, 1872, the defendant, Catha-rine Baker, then Catharine Jordan, was seized in fee as tenant in common with one Eugene Jordan, of a lot in the town of Wilson, containing one acre, it being all the property owned by said Catharine.

This was a civil actioN, to recover real estate, and damages for its occupancy, tried before his Honor, Judge Henry, at Fall Term, of FbaNKLIN Court, upon the following case agreed: (1.) The plaintiffs, N. A. Jones and Harriet, his wife, were married before the year A. D. 1848, and had issue born,alive and are now living.

INDICTMENT, for Murder, tried before Schenok, Jat Spring Term, 1875, Cleaveland Superior Court. One William Blanton, a witness for the State, testified that in July last he met with the prisoner on the road and went with him to a grocery kept by one Morrison, a woman, about three miles east of Shelby, on the public road.

This was a civil aotioN, originally commenced to subject lands to the payment of debts, and heard now upon a motion to reform or modify the report of the referee, before his Honor, Judge Havre, at the • Spring Term, 1875, of PasquotaNeSu - perior Court. This case was before the Court at January Term, 1873, and again at June Term, 1874. See 68 N. C. Eep. 316, and 71 N. C. Eep. 66, the report of which discloses all the facts in connection therewith.

<p>Where in an action for an account the defendant in his answer admitted a partnership, hut in avoidance of a general account pleaded a full settlement as to matters prior to a certain date except certain debts due to and from the partnership which were thereafter to be accounted for by the defendant: Held, that as under the provisions of C. C. P., sec. 137, the settlement must be taken as denied, it was error to grant an order of reference to state an account before trying the issue raised by the pleadings as to the settlement.</p>

<p>Civil action, tried before Moore, J., at Spring Term, 1875, IPitt Superior Court.</p> <p>The plaintiff brought an action upon an order issued by the Board of Commissioners in 1870, in these words and figures to-wit:</p> <p>No. 39. • “ Greenville, Oct, 27th, 1870.</p> <p>Treasurer of Pitt county pay to E. C. Yellowley or order six hundred and thirty dollars and sixty-nine cents out of the ■taxes of 1870, when collected.</p> <p>By order of the Board of County Commissioners.</p> <p>W. G. LITTLE, Chairman.</p> <p>"W. A. Cherry, Cleric.</p> <p>The plaintiff demanded the payment of the order and interest thereupon. The defendant admitted that the amount of the order was due, but denied that the plaintiff was entitled to interest upon the amount.</p> <p>It was in evidence that prior to the 18th of October, 1868, the plaintiff held several small claims against the county, contracted during the existence of the county court. On the 13th day of October, 1868, he presented these claims to the Board of Commissioners to be audited, and in auditing the same the Board of Commissioners added the interest on his claims and gave him an older for the amount of principal and interest, which order was for the same amount, and similar in form, to the one sued upon. On the 27th day of October, 1870, he surrendered that order and received from the Board of Commissioners the order upon which this action is brought, nothing being said about interest. The plaintiff demanded payment of the County Treasurer in the Fall of 1870.</p> <p>It was also in evidence that prior to 1873, the County Treasurer paid interest on such county orders, whenever it was demanded, but generally no interest was demanded. Since the Fall of 1873, no interest has been paid to any one in consequence of an order of the Board of Commissioners. In a few instances the Board of Commissioners in issuing county orders have added interest to the date of issue, and in a tew instances the orders were so written as to bear interest.</p> <p>The answer of the defendant alleged that the defendant was not liable for interest unless it was expressed upon the face of the order, and that when it was intended for interest to be paid, it was so expressed.</p> <p>The following issues were submitted to the jury :</p> <p>1. Was there any' express contract at the time of issuing the order sued upon, that interest was to be paid upon the said order ?</p> <p>2. Was it the custom of the county to pay interest on county orders, at the time the contract sued upon was made, unless it was so expressed in the face of the order?</p> <p>3. When was demand made for payment of the order sued upon ?</p> <p>The jury rendered a verdict in favor of the plaintiff, finding in response to the issues :</p> <p>1. That there was no express contract at the time of issuing the order that interest was to be paid upon the same.</p> <p>2. That at the time the contract sued on was made it was the custom of the county to pay interest on county orders if demanded, although it was not so expressed on the face of the order.</p> <p>3. That demand was made for the payment of the order, in the Fall of 1870.</p> <p>His Honor gave judgment for the principal and refused judgment for the interest on the order, and thereupon the plaintiff appealed.</p>

PbtitioN EOR PARTITION, heard before Buxton, J., at Spring Term, 1875, Richmond Superior Court.

Civil aotioN, for partition, tried before Moore, Jat Spring Term, 1875, MabtiN Superior Court. The following are the facts in the case: Henry Williams died in Martin county in 1860, leaving a will which was duly admitted to probate, and J. R. Stubbs, the executor named therein, qualified and assumed his duties as such.

MotioN, in the nature of a plea in abatement to quash the summons, heard before Buxton,, Jat Spring Term, 1875, Anson Superior Court. The ground upon which the motion was based is, that Jas. II.

CeimiNAl ACTION, Larceny, tried at Spring Term, 1875, of tlie Superior Court of Beaufort county, before his Honor Judge Moore. The following statement of facts accompanies the record as part of the case. The indictment contained eight conuts. 1. For stealing a cattle beast, the property of Judson C Blakely. 2. For receiving the same. 3. For stealing ten pounds of beef, the property of said Blakely. 4. For receiving the same. 5.

Civil actioet for the recovery of money loaned, tried upon complaint and demurrer, before his Honor Judge Kerr, at Spring Term, 1875, of the Superior Court of BladeN county. In this complaint, among other things, the plaintiff charged that in 1864 he loaned to the county of Bladen $16,000, for which he received a bond signed by the Chairman of the Court of Pleas and Quarter Sessions, and countersigned by the Clerk of said Court, and under the seal thereof.

Civil ACTION, to recover the possession of land, tried before SchencJc, Jat Spring Term, 1875, Rutheefobd Superior Court. The plaintiff introduced a transcript of the Superior Court of Henderson, showing a judgment in favor of Solomon Whitaker against IT. II. Elliott, the defendant, dated Oct. 19th, 1863. It was also in evidence that the land in controversy had been sold under execution issuing upon the judgment in September, 1870.

INDICTMENT for Murder, originally found in the Superior Court of Cleaveland county, and removed upon affidavit to the county of Gaston, from which it was subsequently removed to the county of MeoiclenbuRG, and there tried before his Honor, Judge SoiienoK, at Spring Term, 1875.

Case agkeed, tried before Kerr, J., at Spring Term, 1875, New HaNoyee Superior Court. Held: the act was void and no county was established. Lanning v. Carpenter. 20 N. T. 447. The Legislature attempted to lay off a new county comprising parts of two Senatorial Districts, so that the people of the new county could not vote in either District : Held, the act was void.

<p>MotioN in the cause heard before Moore, J., at Spring Term, 1875, Pitt Superior Court.</p> <p>"The plaintiff brought an action against the defendants at Spring Term, 1874, of Beaufort Superior Court, alleging That the defendants had erected a steam cotton gin and grist mill in front of the residence of the plaintiff, and that the smolie stack of the gin and mill stand within sixty feet of the plaintiff’s residence. When the wind is blowing from the South, the smoke, soot and cinders from the smoke-stack blow into the residence of the plaintiff in such quantities as to injure the health and comfort of himself and family and seriously damage and soil his furniture, and is in consequence thereof a great nuisance. To avoid the smoke, soot and cinders when the wind is blowing from the South, his family are compelled to close the doors and windows on the South and front side of his residence, thus depriving himself and family of the health, comfort and luxury of the southerly winds and keeping them in continual alarm on account of fire. On the 24th day of November last, the wind was blowing in a direction from said smoke-stack directly on the house of the plaintiff, and the live sparks from the smoke-stack set the plaintiff’s dwelling on fire, and but for the timely discovery of the said fire and the prompt effort of the firemen and citizens of the town, his residence,, together with a large portion of the town, would have been burned up.</p> <p>Upon these alleged facts, the plaintiff' demanded judgment for one hundred and fifty dollars damages, and that the defendant be enjoined and restrained from working the said steam engine in its present locality and condition, and for cost, &c.</p> <p>In their answer the defendants alleged : That in 1869, they erected and commenced to use a furnace and engine in the same position in which those they now use are, and attached thereto two gins. About the first of December, 1870, they purchased and attached thereto a grist mill for the convenience of the public, and about the same time attached thereto a linter. Finding that the boiler and furnace they then had were too small for their use, they purchased a larger boiler aud furnace and put them in the place of the boiler and furnace aforesaid. Subsequently they purchased and attached thereto a steam cotton press. The said cotton gins and mills have been of great utility and convenience to the citizens of Beaufort and adjoining counties. The boiler and furnace are of sufficient size to run a sixty-horse power engine and having attached thereto only one of twenty-horse power, but little draught is created, so little in fact, that although the defendants purchased at great expense a spark arrester, by reason of the small amount of fire used and the slight draught consequent therefrom, the same cannot be used, as the draught from the furnace is no greater than from an ordinary chimney, nor does it emit more sparks and smoke. Defendants have carefully observed while the furnace and engine were in use, yet they have never seen sparks reach so great a distance as from the smoke-stack to the plaintiff’s house. At the time of the erection of the smaller boiler and furnace, the house mentioned in the complaint was the property of Jos. Robinson, who slightly objected to the erection of the said fixtures and talked of obtaining an injunction to prevent their erection. but never did so, and permitted the defendants to erect the same without hindrance. The plaintiff purchased the house after the erection of the same, after full notice, and until the said fire has never made any objection, but has allowed the defendants t,o attach many valuable improvements without objection. At the time of the said fire the wind was rmt blowing in the direction of plaintiff’s house, but the smoke was carried between plaintiff’s house and one east of it, and in order to reach the place where the fire is said to have originated, a spark would have had to travel at an angle of forty-five degrees against the wind. Since the plaintiff purchased the said house ho has not only suffered the defendants to make great improvements upon the said fixtures, but has himself worked thereupon in making and repairing the smoke-stack.</p> <p>The advantage and convenience to the public arising from the use of said fixtures greatly outweigh any temporary inconvenience and annoyance to the plaintiff arising therefrom, &c.</p> <p>The following issues were submitted to the jury:</p> <p>1. Was plaintiff’s residence set on fire by defendant’s mill on the 24th of November last, and is highly dangerous in its present location to the plaintiff’s residence ?</p> <p>2. Does the plaintiff and his family suffer great inconvenience and annoyance from the smoke, soot and cinders being blown from defendant’s mill on and in the plaintiff’s house, rendering his condition and that of his family uncomfortable and disagreeable, so as to be a nuisance to him ?</p> <p>The jury could not agree as to the first issue, but found in response to the second, “that it is a nuisance to the plaintiff and family, and assess damages at one cent.”</p> <p>Upon the finding of the jury it was adjudged by the Court that the defendants add twenty feet to the height of their smoke-stack, and attach to it a spark-arrester, on or before the first day of August next.</p> <p>If, upou experiment, the nuisance is not abated by this addition to the smoke-stack, the plaintiff has leave to renew his motion for a perpetual injunction.</p> <p>At Spring Term, 1875, the plaintiff moved the Court for a perpetual injunction, after due notice and upon affidavits filed in the canse, when and where the defendants tendered the following issues and demanded that they be submitted to a jury :</p> <p>1. Whether the mill and factory are not a great public convenience to the citizens of the town of Washington and the vicinity, greatly outweighing any private injury to the plaintiff?</p> <p>2. Whether the expense to defendants, by the removal of their mill and factory, would not be excessively disproportionate to the injury alleged by the plaintiff to himself?</p> <p>3. Whether the plaintiff did not purchase his residence long after the erection of defendants’ mill, and at a reduced price on account of its locality?</p> <p>4. Whether the entire water-front of the town of Washington, on which this mill is located, has not been devoted to commerce and manufactures from time immemorial?</p> <p>5. Whether plaintiff is not actuated by malice and personal unfriendliness to defendants, and seeking to injure them, instead of redressing a wrong?</p> <p>6. Whether, in its present condition, the mill and fixtures of the defendants are a nuisance to the plaintiff?</p> <p>.7- Whether the plaintiff has not waived his right to complain of the alleged nuisance by' permitting the defendants, since the purchase of his residence, to erect other valuable and costly improvements without objection, working thereon himself, as alleged in the answer herein, and not denied by the plaintiff?</p> <p>The Court refused the motion.</p> <p>To the rnling of his Honor the defendants filed the following exceptions:</p> <p>1. That his Honor refused to allow the issues of fact arising upon the pleadings and proof, to be tried by a jury.</p> <p>2. That he refused to allow them time to abate the alleged nuisance by removing the top of the new spark-arrester, the same having been erected by them under the former order of the Court in this case, and against their own judgment and wish.</p> <p>3. That he refused to submit the issues tendered by the defendants to a jury.</p> <p>Upon the affidavits filed in the cause, the Court rendered the following judgment:</p> <p>1: That the mill of the defendants is a great convenience to the public for the purpose for which it was constructed.</p> <p>2. That said mill can be removed to many other localities in the town of Washington, where it will be equally convenient to the public.</p> <p>3. There is another steam grist mill situated within said town, capable of supplying the public demand for breadstuff's.</p> <p>4. That the nuisance complained of by the plaintiff and found by the jury, has not been abated by the elevation of the smoke stack and use of a spark arrester, as prescribed by former order in this action.</p> <p>On motion, it is adjudged by the Court that the defendants and each of them, and all persons claiming under them, or acting under authority of them, or either of them, are hereby perpetually enjoined and restrained from using said mill and fixtures or either of them, to the nuisance of the plaintiff' in his present dwelling house.</p> <p>From this judgment the defendants appealed.</p>

This was a Civil actioN for the recovery of land and damages for its detention, tried before Watts, N., aud a jury at June Term, 1875, Halifax Superior Court.

INDICTMENT, for keeping an eating house without having obtained license therefor, tried before Watts, J., at January Term, 1875, Waee Superior Court. The jury returned a special verdict, (which is fully stated in the opinion of the Court), and thereupon it was adjudged by the Court that the defendant was not guilty. From this j udgment the State appealed.

This was a civil actioN to recover $2,000 State and school taxes, tried before his Honor Judge KeRR, at Spring Terra, 1875, of the Superior Court of Bladek county. The defendant, who was the sheriff of said county, had collected the sum of $2,000 as taxes, and failed to pay the same to the proper officers.

MotioN in the cause heard before SohencTc, J, at Spring Term, 1875, LINCOLN Superior Court. The following are all the facts necessary to an understanding-of the case, as decided in this court: At Spring Term, 1873,. of Lincoln Superior Court, the defendant obtained a judgment against one Jacob Lineberger. Erom this judgment there was an appeal to the Supreme Court, but no bond was filed to stay execution.

Civil actioN, in the nature of Ejectment, tried at tbe Spring Term, 1875, of Cumbeslawd Superior Court, before bis Honor, Judge Buxton. The only point raised and decided in this Court, was a question of tbe admissibility of certain evidence. A statement of the facts and the evidence bearing on other points in the case, is, at this stage deemed unnecessary. During the trial, the plaintiff introduced Wm. B. Baker, to prove what one Daniel Cornbow had sworn to on a former trial.

Indictment, for failing to list his poll tax, tried at Spring Term, 1875, of the Superior Court of Wake county, before his Honor, Watts, J. The defendant was indicted at January Term, 1875, of Wake Superior Court, for failing to list his poll for taxation for the year 1873.

<p>An indictment under the act of 1868, Bat. Rev., chap. 32, sec. 95, for killing and abusing a cattle beast, the property of, &c. in an inclosure not surrounded by a lawful fence, is defective, for the reason that it does not charge the act to have been done “ unlawfully and wilfully,” or words of equivalent meaning.</p>

This was a civil action, for the recovery of money only,, tried before Watts, J., at Spring Term, 1875, Halifax Superior Court.

This was a prooeediNG by the Probate Judge of CraveN county, removing the Public Administrator, heard upon appeal by S&ymour, J., at Chambers. The facts of the ease are fully stated in the opinion of the Court. His Honor reversed the order of the Probate Court finding the defendant for contempt, whereupon the Probate Judge appealed.

This was a civil actioN, originally2commenced in a Magistrate’s Court, and carried on appeal to the Superior Court of G-astoN county, where it was tried' before his Honor Judge Sehenok, at Spring Term, 1875. > .. , The facts in the case are as follows : Plaintiff introduced in evidence a Justice’s docket, and proved by one J. G. Gullick that in.the year 1870, he was a Justice of the Peace in and for the county of Gaston, and that the docket in evidence was the docket or…

Civil aotioN, tried before Eure, J., at Spring Term, 1875, CamdeN Superior Court. The following are the facts as disclosed by the statement of the ease as settled by his Honor and sent up to this Court as a part of the record : The plaintiff believing that he was the owner of one undivided fourth of a tract of land in Pasquotank county, known as the Sawyer patent, by deed from J. S. Proctor, offered to sell the same to the defendants.

<p>MotioN for leave to issue execution, heard,before Cloudy J., at Spring Term, 1875, Fobsythe Superior Court.</p> <p>At May Term, 1870, of Forsythe Superior Court, the plaintiff’s testatrix, Miss M. N. Transon, obtained a judgment for $761.75 and cost against the defendants, Isaac W. Ellis and Holden Smith, on their promissory note, executed to the testatrix of the plaintiff, as sureties for one S. E. Smith.</p> <p>A transcript of this judgment was sent to the Cleric of the Superior Court of Davie county, on the 12th day of August, 1871, and made a judgment roll of that Court, the defendants residing and' holding real estate in that county. Both of the defendants at that time had their homesteads laid off, which covered their real estate.</p> <p>The testatrix of the defendant died on the 7th day of May, 1872. On the 30th day of May of that year, the plaintiff qualified as her executor ; and on the 23d day of April, 1873, he was made a party plaintiff to said judgment on the docket in Forsythe county, but not on the judgment roll of the court docket in the county of Davie. Since August, 1870, no exe' cution has issued on said judgment.</p> <p>At May Term, 1874, of Forsythe Superior Court, the plaintiff moved for leave to issue an execution against the defendant, Isaac W. Ellis, upon notice duly served upon him, returnable to that term, the defendant Holden Smith having prior thereto obtained his certificate of discharge from his debts in the Bankrupt Court.</p> <p>It also appeared that Isaac W. Ellis, on the 30th of June* 1873, obtained his discharge from the Bankrupt Court, and that the reversionary interest in the real estate owned by him in the county of Davie, at the date of the judgment aforesaid, was re-conveyed to him by his assignee in Bankruptcy, no creditors having proved their claims in the Bankrupt Court, under the order of said Court.</p> <p>It further appeared that the plaintiff’s judgment against the said Ellis was duly scheduled in the name of M. N. Transon, the testatrix, in his Bankrupt petition which was filed in the Bankrupt Court March 24th, 1873, and that notice was mailed by the assignee to M. N. Transon, the testatrix, to Salem, her place of residence, which the executor never received. No notice was ever mailed to said executor nor served on him in any way whatever.</p> <p>The usual publication in the newspaper was made and the executor filed an affidavit, in which he stated that he did not have any knowledge of the proceedings in Bankruptcy, until the defendant Ellis had obtained his certificate of discharge and said real estate had been re-conveyed to him by his assignee, and it was proved that said judgment had not been paid.</p> <p>Upon this statement of facts, the plaintiff insisted that the judgment roll of the Superior Court of the county of Davie, created from its date, to wit, August, 1870, a lien on the real estate of Ellis in said county, which was not divested by the proceedings- in Bankruptcy; and that the plaintiff had the right to enforce this lien in tile State Court, and moved the Court for leave to issue execution to keep alive said judgment.</p> <p>The Court refused the motion, and the plaintiff appealed.</p>

Civil ActioN, tried before Seymour, J., at Spring Term, 1875, Lenoir Superior Court.

This was a Motion to set aside a judgment affirmed in the Supreme Court, January Term, 1874, (70 N. C. Rep., 14,) and also to make one Francis A. Dey a party to the action, and to restrain the plaintiff from further proceedings, &e., heard at the Spring Term, 1875, of Craven Superior Court, before his Honor, Judge Seymour.' Upon the hearing below the following facts were found: Smith & Dey were partners in trade at Newbern, N. C. Id June, 1866, Dey removed to Newark, N. J.,…

Civil ACTION, tried before Kerr, Jat Fall Term, 1871-, Ala-MANCE Superior Court. The action was originally begun in the county of Orange, and upon affidavit of the defendant removed to the county of Alamance. The plaintiff alleged : That he is a manufacturer of smoking tobacco at Durham, and as such has owned and used since the month of April, 1870, a trade mark, in order to distinguish the smoking tobacco made by him from other such tobacco.

<p>After a cause (under our former Equity practice) has been set for hearing in the Court below and transferred to the Supreme Court on appeal, and the rights and liabilities of the parties have been there declared, and the cause remanded to be proceeded in, in accordance with the opinion and decree of the Supreme Court: It is error for the Court below to set aside the order setting the cause for hearing, and t'o give the defendant leave to take additional testimony.</p>

Petition by defendant to re-hear this case, dismissed at the last term of this Court for the reason that an appeal bond had not been filed within the time prescribed by law. The facts are fully stated in the opinion of Justice BynuM.

Civil actioN tried before Henry, J., at January (Special) Term 1875, Wake Superior Court. The plaintiff alleged : that on or about the first day of January, 1871, he agreed with the defendant, that defendant might tend so much of plaintiff’s land as he could cultivate with one horse, during the year 1871. That he was to pay as rent for the same two bales of cotton to be paid out of the first picking.

Civil actioN, tried at the Spring Term, 1875, of the Superior Court of New HaNOYee county, before his Honor,, Judge McKoy. This was an action brought 22d of May, 1871, by plaintiff to recover of defendant, one of the stockholders of the Commercial Bank of Wilmington, alleging that the defendant was-a stockholder to the extent of 20 shares of stock at the value of $100 per share, making $2,000.

Civil actioN, tried at the Spring Term, 1875, of New Hano - VER Superior Court, before his Honor, Judge McKoy. This was an action to recover of the defendant as ex’r. of Henry Savage, double the par value of thirty-two shares of stock owned by the intestate in “ The President and Directors of the Commercial Bank of Wilmington ” under the provisions of the charter of said bank, tried before McKoy, Judge, at January Term, 1875, of New Hanover Superior Court.

ORIGINAL Bill in Equity, under our former system, filed at the Spring Term, 1861, of the Court of Equity for Meoelen-bueg county, tried in the Superior Court of said county, at Spring Terra, 1875, upon certain issues sent down from the Supreme Court, before his Honor, Judge Sohenck and a jury.

Civil actioN, to recover the value of seven bales of cotton, tried before Moore, J., at Spring Term, 1875, of the Superior Court of Pitt county. It was in evidence that the plaintiff, by parol contract, rented to one Taylor the lands of his intestate for the years 1869-70-71, reserving the sum of four hundred dollars annually, as rent.

<p>Upon an indictment for burglary, the confessions of the prisoner voluntarily made, are competent evidence, even if made without the consent of counsel; but if the counsel, without objection, allow the State to introduce a part of a conversation in evidence, he has no right to exclude either a part, or the whole of such conversation afterwards.</p> <p>The fact that a witness sat upon the grand jury, which found the bill of indictment, as chairman, does not render Mm an incompetent witness upon the trial of the prisoner for burglary, especially when such witness did not vote for the bill.</p> <p>Where upon an indictment for burglary, it was in evidence that the prosecutor discovered in the morning between daylight and sunrise, that his house had been broken into; and the house was situated on a public street in the town of F, and a box and chair had been so arranged as to form stops, which enabled the party breaking to reach the window, &c.: Held, that there was evidence, from which, the jury might infer that the breaking and entry was done in the night time.</p> <p>When an offence is made of a higher nature by statute, than it was at common law, the indictment must conclude against the statute; but if the punishment is less, or the same, it need not so conclude.</p>

This was a oivil ACTION to recover the value of a bill of exchange, tried before Buxton, J., at Spring Term, 1875, of CumbjselaND Superior Court. The action was brought by the plaintiff as holder of the following bill of exchange: “ $875.00. Sixty days after date pay to the order of John Dawson eight hundred and seventy-five dollars value received, and charge to account of JAMES T. PETTEWAY.

This was a civil aotioN, to recover the value of certain personal property alleged by the plaintiff to have been sold by him to the defendants, tried before Henry, J. at January (Special Term, 1875, of the Superior Court of WaKE county. The defendant, Shaffer, liled an answer denying his liability to the plaintiff.

Civil actioN, in the nature of Ejectment, tried before McKay, J., at Fall Term, 1874, Columbus Superior Court. All the facts necessary to an understanding of the case are stated in the opinion of Justice Settle.

Civil ACTION, for an account and for the cancellation of a mortgage and praying for an injunction, heard before his Honor, Judge Kerr, at Chambers in New HaNOVEr county, on the 6th day of March, 1875. The following are the material facts relating to the question raised at this stage of the proceedings and decided at this term of the Court: The plaintiff in September, 1869, subscribed for fifteen shares of stock in the defendant Association.

Civil actioN, for the cancellation of a mortgage and for an account, and also praying for an injunction, heard before Kerr, The facts in this case are substantially the same as in the ease of Smith and wife v. The Mechanics' Building da Loan Association, (the same defendant,) and the same orders were made by bis Honor, the presiding Judge. From the order, vacating the restraining the order and refusing to grant the injunction prayed for, the plaintiff appealed.

This was a civil actioN, similar to the two proceding against the same defendant, heard at the same time by his Honor, Kerr, J., at Chambers in the county of New Hakover. For the facts, and the orders made in the Court below, from which the plaintiff appealed — see the case of Smith and wife against the 6ame defendant, ante page 372.

Special Proceeding, for the sale of real estate for assets, commenced in the Probate Court, and thence removed into the Superior Court of Ware county, and tried at June Term, 1875, before his Honor, Judge Watts.

<p>A, in consideration of the rent of a certain piece of land, verbally promised to pay B, the owner, two bales of cotton and to keep up the fences and the ditches cleaned out failing in this latter he was to pay as rent three bales of cotton; B agreed to furnish certain advances to A, which with the rent was to be paid before A could take in possession any of the crop: Held, that such agreement made A a cropper and not a tenant of B.</p> <p>Held further, that the verbal promise of B. to O & Co., that he would be responsible for the advances furnished A, to a certain extent, was suf- ' ficient, and it was not such as required that it should be in writing.</p>

<p>A co-surety, wlio pays the bond debt for which the other surety is equally bound, shall be deemed a bond creditor, in the administration of the estate of the deceased co-surety.</p> <p>When a plaintiff, a co-surety, discharged the' bond debt, for the payment of which the defendant’s intestate was equally bound, he becomes a bond creditor as to the assets of the intestate; and when pending an action for contribution, the administrator paid off the bonds voluntarily, of equal dignity with said surety debt, having previously paid an open account, he committed a devastavit to the extent of the plaintiff’s claim for contribution, such claim being for a sum smaller than the bonds so preferred and the open account.</p>

<p>A defendant, who has been brought into Court on criminal process, and dischared from- arrest under the same on bail, is not privileged from being arrested on civil process immediately afterwards, during the sitting of the Court and before he leaves the Court room.</p> <p>An order of arrest in a suit for libel, does not violate section 16 of our Bill of rights, and is legal.</p>

Civil ACTION, on a money demand, tried at the Spring Term, 1875, of the Superior Court of MecKLENbubg- county, before his Honor, Judge Seheneh.

This was a civil action, to recover a former judgment, tried before his Honor, Judge Kerr, at the Spring Term, 1875, of the Superior Court of Sampson county, upon the plaintiff demurrer to the defendant’s answer. The Court after inspection of the pleadings, and after argu. ment, gave judgment sustaining the demurrer, and in favor of the plaintiff for the amount claimed in the complaint. From this judgment the defendant appealed.

Special peooeediNG, praying an account and settlement, commenced in the Probate Court of Ibedell county, and thence removed to the Superior Court and tried before Mitchell, J., at Spring Term, 1874, of said Court. The following are the substantial facts of the ease, as agreed by counsel and sent to this Court: The intestate died in February, 1864, and at February Term of Iredell Court of Pleas and Quarter Sessions, 1864, the plaintiff and one Theo.

Civil actioN tried before Kerr, J. at Spring Term 1875, of the Superior Court of RobesoN county. The facts necessary to an understanding of the case as decided in this Court are fully stated in the opinion of the Court, delivered by Chief Justice PearsoN. Upon the trial below, judgment was rendered in favor of the plaintiffs; and thereupon the defendants appealed.

This was a oivil ACTION, to compel one of the defendants, a trustee, to convey the legal title to certain lands to the plaintiff, and also for an injunction, tried before Kerr, J., at the Spring Term, 1875, of RobesoN Superior Court. This case was before this Court at June Term, 1873, upon an appeal by defendants from an order, continuing the injunction against the sale of the premises until the hearing. See 69 N. C. Rep., 308.

<p>Where A, one of the creditors of B, by contract with other creditors of B, purchased at an execution sale B’s land, to be held in trust for the payment of their respective debts, and A, h aving received payment of his debt from the sale of said land, sold the same to C, who again sold it to D: Held, that, in an action by F, one of the creditors of B, to enforce against D the said contract and trust, A and D were necessary parties.</p>

CRIMINAL action, for betting at a public gaming table, tried at the Spring Term, 1875, of the Superior Court of WaKE county, before his Honor Judge Watts.

Civil aotioN, in the nature of Trover, tried before Moore, J. and a jury, at the December (Special) Term, 1873, of Halifax Superior Court. The plaintiff demanded the value of a mule, which he alleged the defendant had wrongfully taken from his possession in April, 1871, and converted to his own use; and also additional and specific damages, resulting from such taking and conversion.

This was a civil aotioN on a guardian bond, tried before his Honor, Jnde Sohenolc, at Spring Term, 1875, of MecKleNbubg Superior Court, on exceptions by plaintiffs and defendants to the report of the Clerk, to whom it had been referred to take certain accounts.

Civil action against the administrator of a surety on a guardian bond, tried on exceptions to the report of the Clerk, to whom it had been referred, by his Honor, Judge Sehenek, at Spring Term, 1875, of Mecklenburg Superior Court. The facts in this case are like those in the preceding case between the same parlies. From the ruling of his Honor, the defendants appealed.

Civil actioN for the recovery of rea] property, tried upon amended complaint and demurrer before Buxton, J., at the Spring Term, 1875, of the Superior Court of RiohmoND county. This case was before the Court at January Term, 1874, (see 70 N. 0. Rep. 537,) upon an appeal by the defendants from an order of the Court below permitting the plaintiffs to amend their complaint. To the amended complaint the defendants demurred.

<p>PbtitioN for an Injunction, tried before Cloudy J., at Chambers, in Stanly county, on the 15th April, 1875.</p> <p>All the facts necessary to an understanding of the case, as decided in this Court, are stated in the opinion of the Court. From the ruling oí his Honor, refusing an injunction, the plaintiff appealed.</p>

This was a Civil aotioN in the nature of Ejectment, tried before Schenck, J. at Spring Term, 1875, of Rutherford Superior Court. The plaintiffs claimed the land in controversy as devisees under the will of William Smith. It was agreed that the right of the plaintiffs to recover depended upon the construetion of the will, and that the Court should decide as to the construction.

Civil aotioN, for an account, tried before Henry, J., at January (Special) Term, 1875, WaKE Superior Court.

Civil actioN against a collecting officer, tried on exception to the report of a referee, at Spring Term, 1875, of the Supe8 rior Court of RobesoN county, Kerr, J. presiding. The facts of this case are fully stated in the report of the same, when it was before this Court at June Term, 1874, and when the case was remanded for further proceedings. See 71 N. C. Rep. 513.

<p>In a petition for partition, A et al. v. B, and B pleads “sole seizure,” under a deed from 0, who being made a party to the suit, alleges fraud on the part of B in procuring the deed, and prays to have the same cancelled: it was err'or in the Probate Court to dismiss the proceedings at the cost of the plaintiff. And on the appeal of the plaintiff to the Superior Court, it was the duty of the presiding Judge to have eliminated from the transcript and decided the point of law raised by the plea of sole seizure; as it was also his duty to have had the issue of fraud in procuring the deed submitted to, and passed upon, by a jury. After this, if necessary, the Court could have issued & procedendo to the probate Court,</p>

This was a oivil aotioN to recover the. value of a promissory note, tried before Kerr, J. at Spring Term, 1875, BladeN Superior Court. It was in evidence that John S. Willis, the assignor of the plain tiffs, on the 2nd day of October, 1866, placed in the hands of the defendant for collection a note on one F. Broadwell for three hundred dollars, which note was payable to Willis, on the 1st September, 1861.

Civil aotioN, commenced in February, 1868, as an action of Covenant, and tried before his Honor Judge Kerr, at Spring Term, 1875, of the Superior Court of Robeson county, upon exceptions to the report of the referee. At Fall Term, 1874, the cause was, by consent, referred to Nat. McLean, who at the ensuing Spring Term, 1875, reported : That the defendant, McKenzie had been dead for more than two terms, and that the suit had abated as to him.

MotioN by defendants, to vacate a restraining order granted at Chambers, heard by his Honor, Judge Watts, at the Spring Term, 1875, of the Superior Court of Gkanville county. The following are the facts signed by the counsel for both plaintiffs and defendants and sent up to this Court as a statement of the case and part of the records: The action was commenced by summons, issued by the plaintiffs, 29th December, 1874, and returnable to Spring Term, 1875.

This was a civil actioN, tried before Kerr, J. at the Spring Term, 1875, of RobesoN Superior Court. This action was brought by the feme plaintiffs, who were the minor children of William Blount, deceased, and his heirs at law, and their husbands, and Alfred Roland as guardian of Penelope Blount, one of the minor children, a feme sole against Joseph Thompson, the guardian of said minor children and the defendant Berry Godwin for the purpose: 1.

Civil aotioN, originally commenced in a Magistrate’s Court and carried upon appeal to the Superior Court of LeNOIR county, where it was tried before Seymour, J., and a jury, at Spring Term, 1875. The action was brought by the plaintiffs to recover one hundred and thirty dollars, a balance due on the price of a horse sold by them to one Joshua Herring, a son of the defendant.

Civil aotioN, to recover the value of a bill of exchange, tried before MoKay, J., at Spring Term, 1875, Orange Superior Court. All facts necessary to an understanding of the case, as decided, are stated in the opinion of the Court. There was a verdict and judgment in favor of the plaintiff, and thereupon the defendant appealed.

Civil aotioN, tried before Henry, JT, at January (Special) Term, 1875, Wake Superior Court. The plaintiff alleged that during the years lSGS-’bi-’GS, and previous to the 1st of May, 1866, at the request of the defendant he delivered for the use of the defendant twenty-four hundred cords of pine wood, standing in the woods, which defendant cut and carried away. Defendant agreed to pay whatever the wood was worth, and that it was worth fifty cents per cord.

This was an INDICTMENT under the act-of 1874-’75, for changing the gauge of the North Carolina Railroad, tried before Watts, J., at'June Term, 1875, of Wake Superior Court. The jury returned the following special verdict: 1.

Civil aotioN in the nature of Ejectment, tried before Seymour, J., at Spring Term, 1875, of WayNE Superior Court. All the facts necessary to an understanding of the case as decided are stated in the opinion of the Court. .. There was a judgment in favor of the plaintiffs and thereupon the defendants appealed.

Civil aotioN in the nature of quo warranto tried before Moore, J. at Spring Term, 1875, Edgecombe Superior Court upon the following, case agreed : 1. The General Assembly by an act ratified- 1874, directed that an election should be held on the 1st Thursday in August, 1874, for a Judge of the Second Judicial District. 2.

This was a Civil acttoN, to recover damages, tried before Seymour, J., at Special Term, 1875, WayNE Superior Court. The facts were agreed upon by the parties to the actions, and his Honor gave judgment for tiie defendant. The facts necessary to an understanding of the case, as decided, are stated in the opinion of the Court. From the judgment of his Honor the plaintiff appealed.

Civil aotioN to recover damages, tried before Seymour, J., and a jury at Fall Term, 1874, of the Superior Court of Wilson county.

PetitioN, to re-hear this ease, which was decided in this Court at June Term, 1874. The facts, pertinent to the case, as decided, are fully set out in 71 N. C. Rep., 468, and it is deemed unnecessary to report them again.

This was a bill in equity, under our former system, and was heard upon appeal in this Court at January Term, 1873, when upon the hearing the following issues of fact were sent to the Superior Court of Franklin county to be tried : 1.

MotioN to dissolve an Injunction, heard before Moore J, at Spring Term, 1875, Maetin Superior Court. The plaintiffs had executed to the defendant a mortgage, a copy of which is hereto annexed. T-he debts to be secured were those of the husband ; the land mortgaged was the property of the wife.

Civil actioN, for the recovery of money only, tried before jKerr, J., at Fall Term, 1874, Chatham Superior Court.

Civil aotioN, upon a bond for maintenance, tried before Bux-ton, J., at Spring Term, 1875, CumberlaND SuperiorCourt. The following is substantially the statement of the case sent up to this Court as a part of the record: The action was originally instituted in the name of Elizabeth Murphy as plaintiff, against the present defendant, who is the administrator de bonis non of Daniel B. Murphy.

This was a oivil ACTION, tried before Ilenry, J~., at January (Special) Term, 1875, of Waxe Superior Court. The relief demanded was that the defendant be ousted and ejected from the office of sheriff of the county of Wake, which office he, at the institution of this action, held by appointment of the county commissioners. The facts as settled by his Honor and sent up as a part of the record, are as follows:.

<p>Civil action, in the nature of a Bill in Equity, tried before Kerr, J., at Spring Term, 1875, of the Superior Court of Robeson county.</p> <p>The action was brought for the purpose of ascertaining the rights of the parties under a deed of trust and for an account of the rents and profits of certain lands thereon conveyed.</p> <p>All the facts necessary to an understanding of the case, as decided, are stated in the opinion of the Court.</p> <p>Judgment was rendered in favor of the defendants, and thereupon the plaintiffs appealed.</p>

This was a pbtitioN to sell lands for Partition, filed in the Probate Court of Stanly count}', thence transferred to Stanly Superior Court, from which it was removed on the affidavit of defendant to the Superior Court of UnioN County, and there tried before his Honor, Judge Buxton, and a jury, at Fall Term, 1874. The following is the case, as substantially settled by the Judge presiding, t'he counsel for the parties litigant being unal le to agree upon the facts.

The facts in this case'are fully reported in the preceding ease, and it is unnecessary to insert them again. There was judgment for the plaintiff, and the defendant appealed. The plaintiffs did not appeal from the judgment, but only from certain rulings of his Honor, fully stated in the defendant’s appeal, ante-

<p>This was an indictment for failure to list the poll for taxation, tried before Watts, J., and a jury at ¡Spring Term, 1875, of "WaKE Superior Court.</p> <p>The defendant moved the Court to quash the bill, on the ground that the Superior Court had no jurisdiction of the offence since the passage of Chapter 200, public laws of 187i-’75. The motion was overruled and the defendant excepted.</p> <p>The defendant was required to answer over, and having pleaded not guilty, the ease was tried and the jury rendered a verdict of guilty. Thereupon the Court gave judgment against the defendant, from which judgment an appeal was prayed and granted.</p>