Volume 74 — North Carolina Reports

PbtxtioN to re-bear the action, in the nature of a special proceeding, between the same parties plaintiff and defendants, originally brought in the Probate Court of Pebson county, and heard upon appeal by his Honor, Toubgee, J., at Chambers, June 10th, 1873; from the judgment of the court below, tlie defendant^ appealed, and tlie case was decided in this court at January Term, 1874.

Civil action-, tried before Eure., J, at Fall Term, 1875, of tbe Superior Court of ChowaN county. In 1872, one Burton conveyed to the plaintiffs a house and lot in Edenton, N. C., to secure certain debts, and having felled to pay the same, the trustees, on the 14th day of March, 1874, after due notice, &c., offered said lot for sale.

This was a civil actioN, tried before McKay, J, at Spring-Term, 1875, of Carteret Superior Court.

<p>Where a guardian purchased 1ns -ward’s land at a sale by the Clerk and Master, in a petition for partition fi ed by himself, and received a. deed therefor, he holds the It gal title to said land, subject to the-equity of the wards, of his paying the purchase money, as a condition, precedent to his becoming the owner of it..</p> <p>The creditor who takes a deed of trust, stands in the shoes of the. debtor, and takes subject to any equity binding the lands in the* hands of the debtor.</p>

<p>Civil actioN, tried upon demurrer, before Buxton, Jat. 'Spring Term, 1875, of Haskett Superior Court.</p> <p>The complaint alleged: That J. B. Barnes is dead and the plaintiff has been duly appointed, and qualified as his administrator.</p> <p>That on or about the 25th day of June, 1873, the intestate-of the plaintiff, and the defendant through its authorized agent agreed, that if the intestate would pay the defendant the sum of fifty dollars, the defendant would insure the life of the intestate for a period of six months, and in case the intestate should die within said period, the defendant would pay to the personal representative of the intestate, the sum of five thousand dollars.</p> <p>That shortly after this agreement, the intestate paid to the defendant, through its agent, about forty-five dollars, all that, he agreed to pay, except $5.67, which was received on^said agreement by the defendant, and no part thereof has ever oeen returned, either to the intestate during his lifetime, or the. plaintiff since his death.</p> <p>That before the expiration of said six months, the intestate-died, and the defendant was notified of his death, and demand duly made upon the plaintiff to pay the five thousand dollars,, or a ratable part thereof, which the defendant refuses to do.</p> <p>That no policy of insurance was ever issued by tbe defendant to tbe intestate, and if any written application was ever made by tbe intestate to tbe defendant, tbe plaintiff bas no copy of it, and bas never seen tbe same.</p> <p>To tbis complaint tbe defendant demurred, upon tbe ground that it did not state facts sufficient to constitute a cause of action:</p> <p>1. In tliat it does not set forth in said complaint tbe application made by said J. B. Barnes, wliicb is a material and necessary part of tbe contract, if any, made between the parties, and tbe basis of said complaint, 4,nd tbe plaintiff should allege and prove the truth thereof.</p> <p>2. That said complaint does not allege that tbe first premium was paid by tbe plaintiff’s intestate, or a proper receipt from any authorized agent of tbe company given therefor.</p> <p>3. That said complaint dees not allege that any policy was ever delivered to tbe plaintiff’s intestate, or that be was le" gaily entitled thereto, and such allegation is a material and necessary part of said complaint, to show that any contract was in fact or in effect consummated or entered^into by tbe said parties.</p> <p>Upon tbe bearing, his Ilonor in the court below, sustained tbe demurrer, and gave judgment in favor of tbe defendant; thereupon the plaintiff appealed.</p>

MotioN in the cause heard before his Honor, Judge MeKoy, at Spring Term, 1875, of the Superior Court of OraNge county.

Civil actioN, tried before bis Honor, Judge Furehes, at Fall Term, 1875, of the Superior Court of Wilees county. The following is substantially a statement of the case as sent to this court as a part of the record. The action was brought by the plaintiff against the defendants for the partition of a tract of land situated in Wilkes county, N. C. The plaintiff alleged that the plaintiff and defendants were tenants in common, and demanded an account of the rents and profits.

This was a civil action, tried before bis Honor Judge Eure, •at Spring Term, 1875, of the Superior Court of Perquimans •'county. • The following statement of the case accompanies the record sent up to this Court: The plaintiff’s wife is the owner of a life estate in right of dower in a tract of land in the county of Perquimans, and the plaintiff is, and lias been, in possession of the same for many years.

Civil actioh, tried before Kerr at Spring Term, 1875,, of DdpliN Superior Court. The action was brought by the plaintiff against the defendant who is the executor of Buckner L. Hill, to recover the sum of $1,565.57, alleged to be due the plaintiff for professional services rendered the deceased by the plaintiff as a physician.

This was a civil aotioN, tried before Seymour, -/., at July Term, 1876, of Edgecombe Superior Court. The statement, of this case sent up to this court as a part of ■the record is voluminous, and contains much matter not per- ■ tinent to the points decided. All the facts necessary to understand the decision of this court are fully stated in the • opinion of Justice Beade.

This was a civil actiok to recover damages for a breach of warranty contained in a deed, tried before Moore, J., at August Term, 1875, of Edgecombe Superior Court. The case was referred, by consent, at Fall Term, 1874, and at Spring Term, 1875, the report of the referee was filed, and the defendant filed the following exceptions thereto: 1.

This was a motioN to apply a judgment held by the plaintiff against the defendant in satisfaction pro tanto, of a judgment held by the defendant against the plaintiff, heard before JBuxton J., at Spring-Term, 1875, of Union Superior Court.

This was a civil actioN, tried before Fur ches, J., at Fall Term, 1875, of the Superior Court of Catawba county, The suit was commenced at Fall Term, 1871, and the complaint is substantially as follows: The plaintiff was, in 1859, the owner in fee simple of two adjoining tracts of land in Catawba county, containing about two hundred acres, and known as the White Sulphur Spring tract; the said springs and buildings heing situated upon the land.

This was a civil actioN originally commenced in the court of a Justice of the Peace, and carried upon appeal to the Superior Court of Edg-ecoMbb county, where it was tried before Seymour, J. and a jury, at July Term, 1875. On the trial in the court below, one Hamilton, a witness for the plaintiffs testified, that the plaintiffs kept a public school open to students from any quarter. The school is military in its organization.

This was a petitiok in the above cause, heard before Moore, J„ at Fail Term, 1875, of Reaufobt Superior Court.

<p>Where, by the death of an intestate, lands descend to the heir at law, a collector has a» power to enter upon and make leases of said land.</p>

Certiorari, upon a judgment rendered at Spring Term, 1875, of the Superior Court of Robesok county, his Honor Judge Kerr, presiding. The defendants, A. C. Moody, W. C. Troy and W. J. Brown, had entered into a recognizance for the personal appearance of A. C. Moody at Fall Term, 1871, of the Superior Court of Robeson county, to answer an indictment which might then be found against him..

'Cestio-rabi, upon a judgment rendered at Spring Term, 1875, of the Superior Court of Robesok county, his Honor, Judge Kerr, presiding. This is one of three actions against the same parties, and involving the same questions, all of which are fully stated in •the case of State to the use of the Bnrd of Klucixtiun v. •Albert C. Moody, and others, ante page 73.

Ceetiokaei upon a judgment rendered at Spring Term,, 1875, PobesoN Superior Court, Kerr, J.. presiding.- The facts in this case arc the' sanie, and the same points are involved, as in the case of State to the une of the hoard of Jiduúutiun vs. Moody and others, reported ante page 73.

<p>The C. C. P. docs net repeal or suspend the Rev; Code in respect to practice and procedure, eicept where its provisions are inconsistent therewith.</p> <p>The provisions of the Rev. Code, with regard to the remedy against the sureties on a replevin bond, are not inconsistent with the provisions of the C. C. P., and therefore it is not error in the Court below to render summary ju Igment against the sureties upon a replevin bond, the plaintiff having obtain ;d judgment against the defendant in the action.</p> <p>•{Clerk's Office v. Hufstetter and others, 67 N. C. Rep. 449, cited and ap' 'proved.) . . .</p>

This was originally a P The following is the statement of the ease sent up as a part of the record. The plaintiff on the 8th day of July, 1873, presented to the defendants a petition for relief from excessive taxation, upon certain lands in Craven county. Upon the hearing of the petition, the Board of Commissioners found as a fact, that nine hundred and fifty acres of the land, valued at. five thousand dollars, should be reduced to four thousand..

This was an appear from the decision of the defendant, the Board of Commissioners of Richmond county, heard before bis Honor, Judge Buxton, at Fall Term, 1875, of the Superior Court of Richmond county. As the case was decided in this court upon a question of law, it is unnecessary to report the facts. The ground upon which the appeal was based was, an excessive valuation of the-property of the plaintiff for taxation.

This was a civil action- for the claim and delivery of personal property, tried before MoKoy, J-, at August Term, 1875, of Caeteeet Superior Court. The action was brought by the plaintiff to recover possession of a mare, alleged to be unlawfully detained by the defendant.

Civil actioN to recover upon a policy of insurance, tried before Kerr, J., at Pall Term, 1875, of PeksoN Superior Court.

This was a civil aotioN for the recovery of damages, tried before Henry, J. at Pall Term, 1875, of Bunco.ube Superior Court. The following statement of the case, signed by the counsel, is sent up as a part of the record. The action was for the recovery of damages, by reason of the erection of a mill-dam on New Found Creek, below the plaintiff’s land in Buncombe county.

This was a MotioN, by th'e Solicitor, for a rule on the de•fendant to show cause why execution, should not issue against him for the cost in State v. a olphv* Muom-y, tried at Spring Term, 1875. The motion was heard before Sc truel-, J., at •Fall Term, 1875, of RdtzíerfoRD Superior Court. The facts necessary to an understanding .of the case, as decided in this ■court, are fully stated in the opinion of Justice Bynum.

This was a civil actioN tried before Seymour, J., at Spring Term, 1875, of the Superior Court of Lenoer county.

This was a MOTION in the cause heard before Seymour, J, at Fall Term, 1875, of the Superior Court of Ceaten county. The defendants moved the court to vacate the restraining order heretofore granted. His Honor upon the hearing, allowed the motion, whereupon the plaintiffs appealed. All other facts necessary to an understanding of the case as decided in this court, are stated in the opinion of Justice RODMAN.

This was a motioN made upon affidavit, in this court at this January Term, 1876, for a venire de novo. The case was originally tried before his Honor Judge Wilson at Fall Term, 1874, of DavidsoN Superior Court. The record sent up to this court from the Superior Court of Davidson county, shows that judgment was rendered at that term in favor of the plaintiff, and that the defendants thereupon moved for a new trial. The motion was overruled and the plaintiff appealed.

This was a Civil ActioN for an account tried before TIrnry, That on the 11th day of June, 1870, the plaintiffs borrowed of the defendant company the sum of eight hundred and sixty-five dollars ; and on the 16th day of July, 1870, the further sum of sixteen hundred and eighty-five dollars, to secure the payment of which sums, the plaintiffs executed two several mortgages on real estate in the city of Wilmington.

INDICTMENT for retailing- spirituous liquors in quantity less than a quart, without license, tried before his Honor Judge Watts, at Fall Term, 1875, of tbe Superior Court of War— reN county.

<p>INDICTMENT for LARcent, tried before Ffiftenek, J.. and a jury at Fall Term, 1875, of Mecklenburg Superior Court.</p> <p>The evidence in the case was substantially as follows :</p> <p>One John M. Rankin, the prosecutor, came from the county ■of Lincoln to the city of Charlotte, and sold his cotton, for which he received two hundred dollars in legal tender notes of the United States. One hundred and eighty dollars of this amount, consisting of nine twenty dollar bills lie rolled up in ■a close package and put in his pocket book. He started home about twelve o’clock, in his wagon, and the defendant, a colored man, overtook him about a half mile from town, and upon his representation that he was just from Monroe, was tired, and had to be at Yates’ Factory that night, which was ■about eighteen miles off, he was permitted to ride. The defendant soon presented some cards, and endeavored to get the prosecutor, -who was a feeble old man, and very nervous, to bet on the cards, and draw one, which he refused to do. The wagon then came to the edge of a thicket, when one Aiken, another colored man, and a co-defendant in this indictment came up and addressing tlie prosecutor, asked him for some tobacco, which the prosecutor refused to give him.</p> <p>Bryant then said to Aiken, “ Stranger, won’t you draw a card ?” Aiken then drew twice, but did not draw the prize card. Bryant then said, “Stranger, I’ll bet you this old man in the wagon, can draw the prize card,” and desired the prosecutor to bet, which lie refused to do. Bryant then said he would bet, and the prosecutor must lend him twenty dollars and draw for him. The prosecutor then took out his pocket book and the defendant then put his arms around him and drew him around to the other side of the wagon, from where, the prosecutor’s son and Aiken were. At this time, Segrave,. a white man, and also a defendant, came up on the other side of the wagon, and Bryant, addressing him said, “ Hello I stranger, I want you to hold stakes.” Then turning to the prosecutor, he said, “ Old gentleman, you are very feeble, I will help you,” and slipped one of his hands under the pocket book and unrolled the money, a part of which the prosecutor felt go out of his hand. When Bryant got the money lie gave one twenty dollar bill to Segrave, to hold, and asked the prosecutor to draw a card for him, which the prosecutor did. Bryant then said, that was not the right card, and Segrave gave Aiken the money. Segrave, Aiken and Bryant then made off. There-wore five twenty dollar bills taken, instead of one twenty dollar bill. The prosecutor did not discover this until the next day. The prosecutor swore that he never consented to lend the twenty dollar bill to Bryant, but that he did not resist his taking it. It was in evidence that Aiken and Bryant fled to Eock Hill, S. C., and were arrested and brought back to Charlotte. It was also in evidence that Bryant, Aiken and Segrave lived in Charlotte and knew each other. That Bryant and Segrave lived in one hundiod and fifty yards of each other, and that Aiken lived very near to Segrave, in that part of the city known as “ Five Points.” That on the morning of the day on which the occurrence took place, all the defendants were seen lying down together, near a spring, about three hundred yards from where the alleged larceny was committed. That the defendants Bryant and Aiken were seen passing backwards and forwards on the road that morning, and that Aiken and Segrave had been seen together, often on the road.</p> <p>The defendants’s counsel asked the court to charge the jury;</p> <p>1. That if the jury believed that the prosecutor, Rankin, loaned the twenty dollars to Bryant, to put up as stakes in the bet with Aiken, this would not be larceny.</p> <p>2. If the prosecutor permitted Bryant to take the money without objection ; that this amounted to consent on the part of the prosecutor, that, he could take the money.</p> <p>The court, after summing up the testimony and defining -what larceny was, and what constituted a felonious intent, to which there was no objection, stated that larceny might be committed by taking property directly from another’s possession, or if one gets possession of another’s goods by trick or ■contrivance, and if the act be done in such a way as to show a felonious intent to evade the law, he would be guilty of lar•ceny. That it was true, if one voluntarily lends money to another, or permits him, knowingly, to take it without objection, it would not be larceny. If the borrowing was in good faith, and if you believe this money was so borrowed, the defendant would not be guilty. But if the getting on the wagon, exhibition of the cards, meeting of the parties, and the other acts of the defend ants was a trick or contrivance between the parties, to get possession of the prosecutor’s money, and Bryant borrowed the money in this way, with the intent at the time to steal it, it wouid be larceny; and if the other defendants were present aiding and abetting, they are guilty.</p> <p>The court also used the following language : “ This is not an ordinary case of larceny, with which the defendants are ■charged. The State alleges that it was committed by a trick -or contrivance.” The court further instructed the jury, that it was the duty of the State fully to satisfy their minds of the allegations contained in the bill of indictment, before they •could convict.</p> <p>The jury rendered a verdict of guilty as to all of the defendants. 'Whereupon the defendant, Bryant, moved for a new trial, on the ground that the court erred in refusing the special iustruetion prayed for, and on the further ground that the ■court, in its charge to the jury, intimated an opinion that a larceny liad been committed.</p> <p>The motion was overruled. Judgment and appeal.</p>

This was a civil actioN, tried before Kerr, J., at December Term, 1815, of Guileobd Superior Court.

<p>In a summary.proceeding, under the provisions of the Landlord and • Tenant Act, the tenant may set up in his answer any equitable de-fence which he may have to his landlord’s claim; and if such defence involve the title to re .1 estate, a Justice of the Peace has no juris--diction thereof, and should dismiss the proceeding.</p> <p>Therefore, where A instituted summary proceedings under said Act. against B, who ofiered to prove that the deed under which the plaintiff claimed title, although executed by himself, and absolute upon its face, was in fact .intended as a mortgage, and delivered as such: It was held, that upon appeal from the court of a Justice of the Peace, the court below erred in excluding evidence tending to show that said deed was intended and delivered to operate as a mortgage, and that the proceeding should have been dismissed for want of jurisdiction in the Justice of the Peace.</p> <p>{Turner v. Love, 66 N. C. Rep. 413, cited and approved.)</p>

<p>Civil actioN, in tbe nature of ejectment, tried, before Seymour, J., and a jury, at Fall Term, 1875, of WayNE Superior Court.</p> <p>The action was commenced May 19th, 1872, by the plaintiff against Z. L. Thompson, to recover possession of thirteen acres of laud. At Fall Term, 1872, Daniel Cogdell, assignee in bankruptcy of Z. L. Thompson, was made a party defendant.. (The Register’s deed in bankruptcy bears date February 25th, 1869, and was registered in "Wayne county January 20th, 1873.) ■</p> <p>The loeus in quo was, at the commencement of the action and still is, in the possession of the defendant Thompson.. The plaintiff produced in evidence a judgment and execution, against the defendant Thompson, returnable to May Term,. 1868, of Wayne County Superior Court, under which the-sheriff sold the “ George Thompson old place,” May 20th,. 1868, to one R. T. Fulghum, and a sheriff’s deed, duly registered, to the said R. T. Fulghum, which included the loom in quo, and also a deed, including the same, dated October 17th,. 1868, from Fulghum to the plaintiff.</p> <p>It was in evidence for the defendant, and admitted by the plaintiff, that the sheriff did not levy upon and sell the locus in quo. and that the deed as originally made to Fulghum did! not cover it, but that subsequent to the' registration of tlie-same, at the request of both Fulghum and the defendant Thompson, a description of the locus in quo was interlined by the sheriff in the deed and by the register of deeds in his •record of the conveyance.</p> <p>The defendant Thompson was insolvent at the time of the sheriff’s sale.</p> <p>The plaintiff bought of Fulghum after the interlineation, for a valuable consideration, at the instance and request of the defendant Thompson, and has subsequently with the assent of Thompson, by contract dated January 12th, 1870, contracted to convey fifty acres of the land conveyed by the sheriff’s deed, including the loom in quo, to one Dr. Exum. It was a part of this contract that Dr. Exum should convey the fifty acres to the defendant Thompson upon being repaid the purchase money.</p> <p>The above stated facts being conceded, there was a conflict in the evidence as to whether the plaintiff purchased of Eul-.ghum with notice of the interlineation, and upon that question the following issues were submitted to the jury :</p> <p>1. Did the plaintiff, W. J. Exum, at the time of purchasing the thirteen acres now in controversy, have notice of the in--terlineation in the sheriff’s deed ?</p> <p>2. Did he have notice that the sheriff did not offer and sell ■said land at his sale ?</p> <p>To both of these issues the jury responded in the affirmative.</p> <p>The plaintiff introduced in evidence the record of a former -action, in which the plaintiff in this action was defendant, and -the defendant was plaintiff, and insisted that, that action was ■ conclusive against the defendant in this action, by way of estoppel. This action is reported in 69 N. C. Rep., 4 64, under the title of G>ylell, Assignee,v. Emm. The defendant in ffliat action contended that the complaint did not cover the • loo us in quo and the plaintiff contended that it did. Both parties agreeing upon what was the land covered by the description in the complaint, and the difference being one of -construction merely, the court passed upon it as a matter of law, and decided that the loom in quo in this action was in controversy in the former action, but held that the defendant in this action was not estopped by the record, for the reason that, as appears by the opinion of the Supreme Court the case went off upon a defect which precluded an inquiry into the merits.</p> <p>Upon these facts the plaintiff insisted that the defendant was estopped from denying his title.</p> <p>The court held that the sheriff’s deed did not convey the loous rn qua to plaintiff’s assignee:</p> <p>1. Because the sheriff never sold it; and 2, Because the sheriff’s power -was exhausted when he gave the first deed ; and that the defendant was not estopped because the plaintiff' did not act upon the faith of any misrepresentation .of the defendant, but upon his own judgment, with a full knowledge of all the facts.</p> <p>The following question of evidence arose upon the trial:: The defendant was examined as a -witness for the defence, and testified that lie told the plaintiff before his purchase from. Fulghum, of the interlineation. Upon the cross-examination the plaintiff’s counsel asked the -witness, if he had put his interest in the /oauK in- quo in his schedule in bankruptcy. This, question was objected to on the ground that the schedule must be produced. The plaintiff contended that it was admissible as a collateral impeaching question.</p> <p>The court sustained the objection, ruling that, before the witness could be examined as to the contents of a writing signed, by himself, the writing must be shown to him, and because the question was not as to the existence, but as to the contents of the schedule.</p> <p>Judgment was rendered in favor of the defendant,, and; thereupon the plaintiff appealed.</p>

INDICTMENT, for a nuisance in not keeping up a proper bridge over a highway, tried before his Honor, Judge Kxrr, at February Term, 1875, of New Hanovee Superior Court. The jury returned a special verdict, which responding to many issues not discussed upon the appeal, is not wholly inserted in this statement. Those facts pertinent to the issues decided, are fully set out in the opinion of the court.

This was au IndictmeNT for Lavoeny, aud receiving stolen property, knowing it to be stolen, tried before Buxton, «/., at Fall Term, 1875, of RxohmoND Superior Court. The bill of indictment was found at Fall Term, 1875, of Anson Superior Court, and, upon the affidavit of the prisoner, removed to Richmond county.

This was a motion in the cause heard before Kerr..J. at Fall Term, 1875, of Guilfobd Superior Court. The defendants were indicted for a forcible trespass upon the lands of James Lowe and Daniel Lowe. At December Term, 1874, on motion of the counsel for the defendants, upon the admission of the Solicitor that the,indictment was frivolous and malicious it was ordered by the court that James Lowe and Daniel Lowe be endorsed as prosecutors upon the bill of indictment.

Civil actioN in the nature of Itjeotment, tried before his. Honor Judge Moore, at Fall Term, 1875, of the Superior Court of Washingtok county.

This was PROCEEDING IN Bastardy, tried before Kerr, J. at December Term, 1875, of the Superior Court of Guileord-county. The facts of the case are stated in the opinion of the court- There was a verdict of guilty, and the defendant appealed-

Civil AotioN, beard before bis Honor Judge Buxton, at Chambers, in Cumberland county, Dec. ’27th, 1875. “The plaintiff is a corporation duly created by an act of the General Assembly entitled “ An act to amend' and re-enact an act to incorporate the Elat Swamp, Lock Creek and Evans Creek Canal Company of Cumberland County.” Ratified 13th of Deo. 1871, (Act of 1871-72, chap. 129, p. 171.) The plaintiff on tbe 6tli day of October, 1873, made application in writing to tlie…

This was a civil action, beard upon the complaint and demurrer thereto, before his Honor Jmuje Buxton, at Spring Term, 1875, of the Superior Court of Cumberlajsto county.

Scire Facia*, upon a recognizance alleged to have been forfeited, tried before his Honor Judge Schenck, at August Term, 1875, of the Superior Court of MeckleNbubg county. The defendant, W. H. II. Houston, was arrested to answer a bill of indictment found against him at Fall Term, 1874, of Mecklenburg Superior Court, and lie with tlio other defendants entered into the following recognizance : S“ Ü I Whereas W. II. 11.

This was an indiotment tried before O uud at Fall Term, 1875, of Stokes Superior Court. The indictment contained two counts: one for obtaining goods by false pretense, and the other for forcible trespass. Upon the trial the defendant moved the court to direct the Solicitor for the State to elect as to the count upon which the defendant should be tried. The motion was overruled by the court and the prisoner excepted.

INDICTMENT for an off ray, tried before Moore, J., at Spring Term, 1815, WashingtoN Superior Court. The defendant was jointly indicted with one Levi Arnold. The facts in the case are substantially as follows : During tbe month of August, Arnold came to tbe front gate of Downing’s premises, and having called out Downing’s wife, began to curse and abuse her husband, because, as Arnold alleged, Downing had committed adultery with his (Arnold’s) wife.

INDICTMENT for Perjury, tried before Buxton J. at Fall Term, 1875, of Richmond Superior Court. The indictment was found at Spring Term, 1875 of Anson Superior Court, and upon affidavit removed to Richmond county. The perjury was alleged to have been committed by the prisoner while testifying as a witness upon the trial of the issues in a divorce suit, tried at Anson Superior Court at Fall Term, 1874, to-wit: Martin Y. Horne v. Mary E. Horne.

<p>This was a controversy submitted without action, upon a case agreed, and heard before his Honor Judge Watts, at June Term, 1875, of the Superior Court of Wake county.</p> <p>All the facts in the case are stated in the opinion of the court.</p> <p>There was judgment in favor of the plaintiff; thereupon the defendant appealed.</p>

This was a MotioN in the cause heard before his Honor, lurche.s, J., at Fall Term, 1875, of the Superior Court of Ashe county. The defendants moved the court upon affidavit and bond filed, to allow the action to be removed to the Circuit Court of the United States. Upon the hearing, the motion was allowed. All other facts relating to the points raised and decided in this court, are fully stated in the opinion of Justice Eodman.

Civil AotioN, beard upon appeal from a judgment of a-. Justice of tbe Peace, before bis , Honor Judge Moorey .at'. Spring Term, 1875, of tbe Superior Court of Pitt county. Tbe complaint was in tbe following words and figures: “T. A. StattoN, To Robert Gkeen, Dr. 1866. To Lumber, $25.00- Int. for two years, 3.00- $28.00””’ The account was endorsed: “ Pay tbe within account to B. Fleming.

LstoictmeNT, tried before Watts, J., and a jury at January Term, 1875, of the Superior Court of Wake county. The defendant was indicted under chap-. 32, sec. 72, Battle’s Bevisal, for playing at a game of chance.

This ease was an Appeal from the decision of his Honor, SckencJe, Jaffirming his judgment of the Probate Court of Cabarrus county, appointing the plaintiff guardian of one 0. A. Snell, an orphan. The case was heard at Chambers, June 19 th, 1875. The following are the facts, as found by the Probate Judge: “ J. F. Gr.

INDICTMENT for L'lfneny, tried before Furehes, J, at Fall Term, 1875, of the Superior Court of Wilees county. The defendant was jointly indicted with Daniel Dishman, Noah Hardin and W. Gr. Cheatham, for the larceny of a hog, the property of one Bartlett Mullis.

<p>Tlxis was a special proceemNG tried upon appeal from tlie award of commissioners appointed to assess the damages arising from the construction of the road of the plaintiff through the lands of the defendant, before Buxton J, at Spring Term, 1875, of the Superior Court of Moore county.</p> <p>Commissioners were appointed upon the petition of the plaintiff to assess tlie damages arising from tbe construction of the plaintiff’s road bed through the lands of the defendant. The damages were assessed at the sum of four hundred dollars, and the plaintiff objected to the finding of the Commissioners on the ground that the damages assessed were excessive; the objection being overruled the plaintiff appealed.</p> <p>When the case was called for trial, all irregularities were waived and the only question submitted to the jury was as to the amount of damages.</p> <p>The plaintiff is a corporation originally chartered under the name of “ The Chatham Railroad Company.” By a subsequent statute, chap. 11, acts of 1871-72, the name was changed to “ The Raleigh and Augusta Air Line Railroad Company.”</p> <p>By an act amending the charter of the Chatham Railroad Company (Private Acts 1862-63, chap. 26, sec. 7) it is provided that in making the valuation, the said commissioners shall take into consideration the loss or damage which may accrue to the owner or owners in consequence of the land or right of way being surrendered, and the benefit or advantage he, she or they may receive from the erection or establishment of the railroad or works, and shall state particularly the value and amount of each, and the excess of loss or damage over and above the advantage and benefit shall form the measure of the valuation of said land or right of way.</p> <p>In Bat. Rev. chap. 99, sec. 15, entitled “ Railroad Companies ” the rule of compensation is stated differently, it being-provided “ in determining the amount of such compensation, they (the commissioners) shall not make any allowance or deduction on account of any real or supposed benefit which the parties in interest may derive from the construction of the proposed railroad.”</p> <p>Preliminary to the introduction of evidence, the question was raised which rule of damages shall be adopted in this ■case ? Tbe court beld that tbe rule laid clown in tbe charter should be adopted.</p> <p>It was in evidence that tbe plantation of tbe defendant consisted of two hundred and seventy-five acres of land, valued by tbe several witnesses at prices ranging from $5 to $8 per acre. Tbe bed of the road upon the defendant’s land is two-thirds of a mile in length, and tbe land condemned for tbe use of tbe road covers about sixteen aer^s. The track runs within about a quarter of a mile of the defendant’s house. About two-thirds of the road runs through old fields and gullies, not fit for cultivation, and a small part thereof through valuable meadow lands worth ton dollars per acre.</p> <p>Owing to the gullies and ravines and also to the excavations and embankments of the road, there are three crossing places, one of these is the public county road, which by reason of an excavation has been changed from a direct line, requiring a detour of fifty yards down the track and fifty yards back instead of crossing directly over the road in its original course. Owing to insufficient culverts, water is sometimes ponded on two or three acres of the defendants’ land. The crossing near the dwelling used to be good. It is interrupted now. In running through the orchard a row containing twelve apple trees was buried to the height of two or three feet. Waste dirt from one to two feet in depth, and piles of rock from one to nine feet high are scattered along the line of the road, off the condemned land, and upon the plantation of the defendant.</p> <p>There was' a great diversity of opinion among the witnesses as to the amount of damage sustained by the defendant. There was much evidence as to the advantages and disadvantages arising from the construction of the road.</p> <p>His Honor charged the jury:</p> <p>That the enquiry for them to make was: how much more was the land of the defendant damaged than benefitted by this railroad crossing it. In considering this question the jury are to remember that railroads were useful enterprises, promotive of public good, sanctioned by law, and authorized to enter upon the land of the citizens: so that there was nothing -wrong or in the nature of trespass in the act of entry by this company. The object of this proceeding was to compensate the owner for the damage necessarily sustained. In making their estimate the jury should not take into consideration any mere fancied injury or benefit, or remote probability of advantage or disadvantage; they were to consider the direct consequences necessarily resulting from the railroad passing through the farm, not the remote speculative or contingent damage. For instance, they might take in consideration the circumstances mentioned in evidence, that about sixteen acres were appropriated for the track — the increased fencing required — the ponding of water on the land, the space occupied by waste dirt and rock, the inconvenience occasioned by obstructing the passage from one part of the farm to another, and the liability to injury to which the stock on the farm would be exposed. These were consequences flowing directly from the passage of the road through the farm and tended to render it less valuable. On the other hand the jury would reject from their consideration such circumstances as the worry of mind, or possible pillage of fruit, or other depredations apprehended by counsel in their argument, from railroad hands.</p> <p>To the charge of his Honor the plaintiff excepted.</p> <p>The jury rendered a verdict in favor of the defendant, assessing the damages at $450.</p> <p>Thereupon the plaintiff moved the court for a new trial, on account of error in the charge of his Honor, in including among the circumstances which the jury might properly consider, as depreciating the value of the land, “ the liability to injury to which the stock on the farm would be exposed.”</p> <p>The motion was overruled and the plaintiff appealed.</p>

. INDICTMENT for Assault and Battery, tried at Pall Term, 1875, of Gbaham Superior Court, his Honor Jjidge Gannon presiding.

TndxotmeNT for Larorny. tried before Ms Honor, Cannon, •J,. at Pali Term, 1875, of tbe Superior Court of Haywood ■county. The defendant, with one James Alexander, was indicted for the larceny of a hog. All the facts necessary to an understanding of the case, as decided in this court, are stated in the opinion of Justice Rynum. There was a verdict of guilty, and judgment, whereupon ■¡the defendant appealed.

This was a motioN by tbe plaintiff to dismiss an appeal from tbe court of a Justice of tbe Peace to tbe Superior Court of GeaNvillh county. The motion was heard at July (special) Term, 1875, Ms Honor Judge Moore presiding.

<p>When an executor converts his real and personal estate into notea and' moi.ey, so as to lead to a reasonable apprehension that the assets are; not sufficiently secure in his hands, it becomes the duty of the court, pending an action for an account and payment of the assets, to provide by an order in the cause, that the executor give bond for the-'protection of the assets, and for the performance of the final decree,, and upon his fai'ure so to do, to appoint a receiver. It is error to. appoint a receiver in the first instance.</p>

Civil Actiost, in the nature of Ejectment, tried before liis-Honor, Jw/fje Albertson, at Spring Term, 1873, of Gbaw-ville Superior Court. The plaintiff offered in evidence various judgments rendered against the defendant for debt, interest and cost, and! docketed in Granville county, as follows : One on the 16th day of December, 1868, and one on the 16tli day of October, 1868, and one on the 7th day of Jan-izary, 1869.

INDICTMENT for assault, tried before bis Honor M»ore J, at July Special Term, 1875, of the Superior Court of Gkanville county. Trial by jury having been waived his Honor found the following facts: On 9th .day of January, 1875, about 12 o’clock, the prosecutor, William D. Eoyster, was in the public * highway near Nntbush Bridge in the county of Granville, and the defendant was in an adjacent field.

<p>INDICTMENT for Assault and Battery, tried before bis Honor Waits, J. at Fall Term, 1875, of tbe Superior Court of -GteaNville county.</p> <p>Tbe indictment was drawn for an assault and battery in tbe usual form.</p> <p>Tbe jury returned a verdict of “guilty of shooting” and thereupon tbe counsel for the prisoner moved tbe court in arrest of judgment.</p> <p>Tbe motion was overruled and tbe defendant appealed.</p>

INDICTMENT for larceny and receiving goods knowing them to be stolen, tried before his Honor Judge Moore, and a jury, at July (Special) Term, 1875, of the Superior Court of GkaN ville comity. ■ The defendant, a white man, was indicted for stealing tobacco, the property of a colored man. In his argument to the jury the solicitor alluded to this fact and urged them to guard against the prejudice of race.

This was a MotioN in tbe cause, beard before Ms Honor, Cloud, J., at Fall Term, 1875, of the Superior Court of RowaN county. It was admitted that the plaintiffs obtained judgment against the defendants’ intestate and others at Fall Term, 1869, of Rowan Superior Court, for the sum of one thousand dollars, and interest thereon from the 20th day of September, 1869, and also for costs.

This was a ^MOTION in the cause heard before his Honor Judge Watts, at Fall Term, 1875, of the Superior Court of Wake county. The motion was “ to reform the judgment entered, and for an order to issue to the Sheriff of Wake county to suspend the sale of property, upon which he had levied, until the motion was heard.” His Honor granted an order to the Sheriff to suspend the sale from day to day until the hearing, when the following facts were found: 1.

This was a civil action for tlie recovery of a legacy, tried before his Honor, Judge Buxton, at Fall Term, 1874, of KichmoND Superior Court.

Devisavit vel NON tried before his Honor Judge ‘veymnu?\ and a jury, at Spring Term, 1875, of the Superior Court of JoNES county.

This was a motioN in the cause, heard before his Honor Judge II' in/, at Fall Term, 1875, of the Superior Court of BuNcombe county. The plaintiff, upon petition, Was allowed by the Clerk of the Superior Court to sue in forma pauperis. The petition was verified by the plaintiff.

This was a motioN in the cause beard before his Honor-Buxton, J. at Chambers, in Richmond county, November-9th, 1875. The following statement accompanies the record sent upon-appeal to this court: This -was a motion made in lieu of a Bill of Review which-; was before the Supreme Court between the parties at January Term, 1875. 72 N. C. Rep.

IndiotmeNT, for murder, tried before his Honor, Judge Watts, at June Term, 1875, of the Superior Court of Halifax county. The prisoner was indicted‘at Spring Term, 1875, of the «Superior Court of Edgecombe county, and by consent was removed to the Superior Court of Halifax, where it was tried vat June Term, 1875. The prisoner was found guilty of the .murder of one Esadore Cohen as charged in the bill of indict.ment.

INDICTMENT for larceny, tried before bis Ilonor Judge Cannon, at Fall Term, 1875, of the Superior Court of Clay county. The defendant was charged with the larceny of a pair of shoes, the property of Joshua Brooks.

<p>Where A hired a horse to B, upon an express contract that B sbouM return the same at a specified time in as good condition as she then was, and should lie fail to do so, B was to pay A a specified sum as the price of the horse, and B, after the time specified returned the horse, which had ,been greatly injured; in an action brought by A against B to recover the price: It was held, that the acceptance of the horse by the plaintiff did not necessarily constitute a rescission of the contract or a w fiver of the right to recover thereunder:</p> <p>It was further held, that the plaintiff having subsequently sold the horse, that the price received should be credited upon the judgment recovered. of the defendant in this action,</p> <p>.(The cases of Oov v. long, Of. N. C. Rep 8; Spiers v. Halstead, at this term, cited and approved.)</p>

Civil ActioN, in the nature of fj' otment, brought to this court upon appeal from the judgment of the Superior Court of Moore county, at Spring Term, 1875, his Honor, Buxton, J. presiding. The looms in quo containing ninety-eight acres, was a part of a larger tract, containing one thousand acres, originally owned by Daniel Melver, and which, at his death, descended to his heirs at-law, one of whom was David W. Melver.

<p>Tliis was an appeal from a judgment of a Justice of the Peace, tried before his Honor, Judge l'w'oftes, and a jury, at.. Pali Term, 1875, of the Superior Court of Ashe county.</p> <p>iThe action was commenced on the 16th December, 1874, to-recover the sum of one hundred and fifty dollars, alleged to ■ be due by bond for that amount, dated March —, 1863.; The. bond was alleged to have been given as the price of a horse' sold the defendant Latham at that time, with the other defendant as security.</p> <p>The purchase of the horse at the time the alleged note bore date, and at the alleged price, was admitted, but the defendant denied the execution of the bond. They also as matter of. defence alleged that the bond was given for an illegal consideration, and the cause of action was barred by the statute of' limitations, and further that the debt had been paid and satisfied.</p> <p>The plaintiff as a witness in his own behalf, testified that; •• some time during the late war, the defendant Latliam, then a volunteer in the army, came to his house and desired to púr-■■chase his horse, then three years old, if he could swap him to ■one Brown. The witness told Latham he would take one hundred and fifty dollars in good money for the horse, but ' that he would not take Confederate money in payment. Latliam then left bntfretnrned the next morning- in company •with Brown, and he and Brown agreed to swap./ Latliam 'thereupon agreed to purchase the horse upon the terms proposed,' upon a credit of nine months, with the defendant Worth as security. The parties then went to Worth’s house for the purpose of having the note drawn, Latham taking the horse and carrying him away. It was well understood by all ■the parties, that the plaintiff would not take C mfederate'moaey Tor the horse. Worth wrote the note, payable to the plaintiff nine mouths after date, for one hundred and fifty dollars, ¡payable in good current money, such as the defendant Worth -¡would sell his stock for. Both the defendants signed the note ..and after reading it, delivered it to the plaintiff. He was anxious for Worth to write the note because he knew how to write a good one. The defendant and one Maxwell came to "'the witness and insisted on paying off the note in Confederate money and offered him some cotton yarn, but he declined to Toceive such payment and demanded good money. Some time thereafter, Maxwell and Latham came to the plaintiff’s house, •and Latham told the plaintiff that his money was left at Worth’s house, and he must take the note over there and give . it up and get the money, or he, Latham would sue him and make him give it up. The money left at Worth’s was Con- ■ federate money. He thought that Latham could make him .give the note up and he therefore carried the note to Worth’s and left it and has never seen it since. He has never1 received ••any thing for the horse. The defendant Worth offered to pay ..him Confederate money for the note at the time he snrren-*4ered-it, but he declined to receive it. He did not know what use the defendant Latham had for tlie horse. II3 did not know whither or not the note was under seal, but he thought it was a good note. He depended on Worth to write the note and* supposed it was all right.</p> <p>Jacob Lewis, a son of the plaintiff, testified that the horse was worth one hundred dollars. lie saw the note. It was a goo 1 note, but lie did not remember whether or not it was under seal.</p> <p>One Telly testified that he had a talk witli Lath am last winter,, before the coinn inccmmt of this action, and requested him to pay the money due the plaintiff. He refused to pay anything; and said “that note was in other fingers ” than the plaintiff's,, and that he had paid all on it he ever expected to pay.</p> <p>The defendant Latham testified that at the time of the pur cliasej he was in the Confederate army, a member of the 1st N. C.' Cavalry, and was at home on detail, for the purpose of obtaining a horse. ^ That he went to the plaintiff to buy a. horse to ride in the® army, and found that his horse would hot-do. After he and Brown had agreed to swap, he went to the-plaintiff’s house in company with Brown, and the plaintiff, agreed to accept his note with Worth as security, for $150, in old State money ;• the plaintiff refusing to take Confederate money. That about the time they arrived at Worth’s, the plaintiff changed his mind and directed Worth to write the-note payable “in good current money such as Worth would.sell his stock for.” That he any Worth executed the -note and delivered it to the plaintiff. When the note fell due he sent; Confederate money to Maxwell to pay it off. He afterwards heard that the plaintiff would not accept the Confederate money, and he and Maxwell went to the plaintiff’s house, and-, the plaintiff declined to accept it and demanded specie. The defendant Latham then told the plaintiff that his money wasf at Worth’s, and if he did not go and get it and leave the note-with Worth, he, Latham, would sue him, and try it out at law.. In a few days the plaintiff carried the note to Worth’s and left: ' it, but did not accept tbe Confederate money. Soon after-wards Worth gave the note to the witness. He stuck it in his . pocket and lost it, and has never seen it since. Did not know whether or not the note was under seal. He could not read. This was in the year 1864.</p> <p>There was other evidence introduced, which being irrelevant '•'is not necessary to bo stated.</p> <p>His Honor instructed the jury, that there was no evidence -of a payment of the note. Upou- the question of illegal consideration, ¡that if the defendant Latham purchased this horse for the purpose of riding or using him in the army, or for the purpose of swapping him to use in the army, and if the plaintiff knew of such purpose at the time of the trade, then the --consideration would be illegal and vicious, and the plaintiff could not recover, f</p> <p>The court reserved the question as to the statute of limitations.</p> <p>The jury rendered a verdict in favor of the plaintiff for sixty dollars principal, with interest.</p> <p>Upon the question reserved, the court being of the opinion ‘that the plaintiff’s cause of action was not barred by the •statute of limitations gave judgment upon the verdict, and ■the defendants appealed.</p>

This was an Appeal from the ruling of his Honor, Albert--son, J, requiring the defendant to give bond in the sum of $50,000, to continue an injunction, theretofore granted upon, motion in the cause. The case was heard by his Honor, at Chambers, in Wake county, June 19th, 1878. A motion was then made by the defendants to vente the injunction.

This was a civil actioN, brought to recover $577.00 alleged to be due the plaintiff by the defendant, on a bond executed on the 15th day of October, A. D. 1860, in which the defendant Styres was principal, and the co-defendants, sureties, and also for the purpose of foreclosing a mortgage executed by the defendant Styres to the other ■ defendants to indemnify them as sureties, tried before his Honor, Judge Cloud, at Spring Term, 1874, of the Superior Court of Davidsoít…

This was a Civil ActioN tried before his Honor, Judge Kerr, at Eall Term, 1875, of Orange Superior Court. The parties having waived a trial by jury ; the court found the following facts: That November Caldwell was in the year 1858, a slave, the property of Hr. William Hooper, and upon the removal of Hr.

<p>Civil actioN, in tbe nature of Mjcotment, tried before Cloud, J., at Spring. Term, 1875, of the Superior Court of Eoesyti-ee County.</p> <p>The following is, substantially, the statement of the ease sent up as a part of the record, upon appeal to this court:</p> <p>The plaintiff claimed the loous in quo as a purchaser at an execution sale, the execution having been issued in his own behalf.</p> <p>The defendant claimed the same under a deed from one Richard Cox, the defendant in said execution, dated prior to the sheriff’s deed to the plaintiff.</p> <p>The plaintiff alleged, that the loous in quo was conveyed to the defendant by the said Cox in fraud of his creditors. In support of this allegation, evidence was adduced tending to show that the plaintiff held a bond for the sum of $1,395.75, against the said Cox, dated the 31st day of March, 1866, and that on the 2d day of April, 1866, he commenced an action ■on. said bond. That at Fall Terra, 1866, the defendant pleaded to the said action, and issues joined therein. The action was pending until Spring Term, 1867, when the plaintiff recovered judgment against the defendant; and that execution issued upon the judgment, and the plaintiff became the purchaser of the locus m (jiM, at the execution sale.</p> <p>Two other actions were commenced against Cox, each on the 22d day of March, 1866, one by W. A. King, and the ■other by Presley Greorge, together amounting to about $800. That in October following, other creditors instituted actions against Cox, to recover about the sum of $1,060, to.wit, M. L. Smith and J. L. Peatress, the former of whom was a brother-in-law of Cox and the defendant. In the four last mentioned suits, judgments were confessed at Fall Term, 1866.</p> <p>It was farther in evidence for the plaintiff, that on the 23d day of April, 1866, Cox executed a deed in trust conveying the “ Nancy Cox tract of land to secure Charles E. Moore, M. L. Smith and Powell Simmons, his sureties, for a debt of $1,203, due the Bank of Salem, contracted in 1861. That a short time before Cox made the deed to the defendant, he declared that he owed the plaintiff a large debt, and that he did not intend to pay it. That he intended to give Mary Bey-nolds, a daughter of the defendant, five hundred dollars in the ■i<Molly Cox” land (the locus in quo), and the defendant was to have the balance. That a few days before he executed the bond to defendant to make title to the land, which was dated April 11th, 1866, Cox declared that he was about to be sold, out, and that “ while they were selling, he was going to sell too.” A few days after this, Cox went to Virginia to the home of the defendant, when and where the contract between Cox and the defendant was made, and the title bond given. That ■on the day before the execution of the deed, Cox stated to a neighbor that he was about to sell his “ Molly Cox” land to the defendant for $1,500, that he asked $2,000 for it, but the defendant talked like not giving it. That he would not take that from anybody else in the world. That in the fall of 1866, after the conveyance of the land to the defendant, the defendant was at said neighbor’s house, and a colored girl told him that she liad heard that the defendant’s son Dick was to come to live with Richard Cox at his home place, and his daughter Mary was to come to the “Molly Cox” place. That in reply to this, the defendant said that he had never heard of such a thing; that he had thought of giving the “Molly Cox”' place to his son Abram.</p> <p>There was also evidence, tending to show that on the 15th of April, the defendant and Cox came to the house of one Powell Simmons, in Stokes county, and on their arrival the defendant remarked to Gideon E. Moore, who was present at that time, that he was glad to find him there, as he wrote a good hand; that he had bought of Cox his “ Molly Cox ” tract of land at $1,500, and he wanted a settlement made and a deed drawn. Moore and Simmons remarked that he paid enough for it. Moore excused himself from doing the writing, saying that Simmons was the best draughtsman.</p> <p>Moore testified that the defendant produced his papers, sitting near to him, and ho knew that he had in his hands a bond on Cox to Moody, and by him transferred to the defendant; another for $900, or thereabout; and beside these, there was a small account, upon all of which Simmons computed the interest, Cox admitting each one to be justly due Simmons, announced the result of the calculation as $1,450, or about that sum. The defendant thereupon remarked to Cox, that it was very near what they had made it, the only difference being that Simmons had counted the fractions. It was further in evidence, that the deed was not drawn on that occasion, owing to the fact that Cox did not know the courses of the lines to the “ Molly Cox ” tract, and Cox left Simmons to go to his house, a few miles off, to get his deed, and was to come back that ■evening, but did not. The defendant stayed all night at Simmons,’ and the next morning lie and Simmons went off together, saying they were going to Cox’s to draw the deed.</p> <p>It was further in evidence, that on arriving at Cox’s house, they found him with a trunk open, looking for an old deed, which he did not find; and the question arose as to how the “Molly Cox” land should be described so as to distinguish it from other lands belonging to Cox, adjacent thereto. Cox wanted the line to run across the creek, near the ford, and the defendant insisted that it should run below the ford. This disagreement arising, Cox, the defendant, and the witnesses went from the house to the ford, still disagreeing. They then went down to the creek, about a hundred yards to a bend, where there was a large rock in the creek, and a cleared ridge makes a near approach to the creek. The defendant then said to Cox, “ I want to see you,” and they went off into the woods, out of sight of the witnesses, and were gone sometime. "When they returned, the defendant remarked that Cox had agreed for the line to commence at the bend, and run due north and south through Cox’s land to his outside lines. The deed was thus drawn, a copy of which the plaintiff offered in evidence. The quantity of land, between the road, as it runs through the land, and the line crossing at the bend, -was va riously estimated by the witnesses, ranging from twenty-seven to one hundred acres.</p> <p>It was further in evidence that Cox had been a man of large property up to the time the slaves were emancipated, and afterward owned the following property, to-wit: The “Molly Cox” place, containing four hundred and seventy-five acres, the locus in quo sold to the defendant for the sum of $1,500; the “Nancy Cox” place, containing three hundred and twenty-seven acres, said to be worth more than the “Molly Cox” place by some of the witnesses, and by some less, which after the execution of. the deed to the defendant, was conveyed in trust and sold at auction for five hundred dollars; the “ House place,” containing six hundred and thirty-five acres, worth $3,000, and sold at a sheriff’s sale for $1.00 per acre j the “Turkey Branch place,” worth from $150 to $400; the “ Mountain place,” worth $100, and a lot in Danbury, worth $50, besides personal property which brought $275. There was no evidence that Cox was reputed as insolvent at the time of the execution of the deed to the defendant; but some of the witnesses, testified that it was thought that he would break. It was in evidence that before the end of the year 1866, Cox vras entirely sold out, leaving a considerable part of his debts unpaid, his property selling for a low price, owing to the’ scarcity of money, the then prevalent fear of confiscation in that section, and the consequent scarcity of purchasers of real estate.</p> <p>The evidence as to the value of the “Molly Cox place” was, conflicting, some of the witnesses testifying that it was worth more than $1,500, and others that it was worth less. It was. further in evidence that the lands retained by Cox after the-execution of the deed to the defendant, if sold at the same-proportional price, would have paid off all his debts and left a considerable surplus. That before the execution of the deed to the defendant, the defendant asked one Wm. S. Lawson, “if any one had made a break on Cox,” stating that he was expecting it, and that on the day after the exeeiition of the deed,, defendant came to Lawson’s house and told him that he had bought the “Molly Cox place” for $1,500, and asked the witness what he thought of it, and if he had not paid too much. To which the witness replied that it vras worth more money. The defendant remarked, “ If it was so, it was all in the family; that Cox was old, and -would have to be taken care of; that McCanless and others had debts (naming the debt due the Bank of Salem), and if those debts came against him it would break him up. He said McCanless had sued Cox, and asked the witness if he knew anything about the justice of the debt; to which the witness' replied, that he knew some, portions of it to be just.</p> <p>It was further in evidence that Lawson was at the sale of the “Nancy Cox place.” That some six or eight persons were present, of whom throe or four were bidders. One M. L. Smith, a brother-in-law of Cox, became the purchaser, at the price of $510. That, in the opinion of the witness, the land was worth five dollars per acre. (The tract contained three hundred and twenty-seven acres.) That the defendant had told the witness to attend the sale of Cox’s personal property and buy some articles for Cox, which he did. Afterward the defendant complained that he bought more than lie was instructed to buv, and proposed that the witness should take and pay for a part, and he would pay for the balance for Cox. At this proposition some unpleasantness and irritation was shown, and the witness refused to do so, saying if he took a part he would take all. There was no hard feeling between them that witness know of. After this disagreement the witness went after the articles purchased, when Cox alleged that the defendant had promised to give him a home on the “Molly Cox place ” for life, and to buy these articles for him. The next time the witness saw the defendant he communicated to him these declarations of Cox. This was in the Spring of 1867. The defendant replied that M. L. Smith had as much right to take care of Cox as he had, that he had a. large family of his own to attend to.</p> <p>On cross-examination the defendant asked the witness if he was not a bidder at the sale of the “ Nancy Cox placeand if he was not bidding for McCanless with authority from him to run it to five hundred dollars ? The witness replied that hé was a bidder, but that he had no authority from McCanless and was not bidding for him, but that McCanless had .agreed to lend him $500 to help pay for the land. He was .also asked if he did not on the day of sale, tell M. L. Smith that McCanless had authorized him to bid for the land and limited him to $500 ? To which the witness replied, that he had not.</p> <p>During the progress of the ease M. L. Smith was called as '•a witness for the defense and asked, “ what, if anything, W. 'S. Lawson had said on the day of sale as to his bidding for McCanless. -To this question the plaintiff objected on the .ground that it was collateral. The court overruled the objection and the plaintiff excepted. The witness thereupon •stated that Lawson told him at the sale that he was a bidder for McCanless, and that he had limited him to five hundred dollars.</p> <p>There was evidence tending to show that the line contended for by Cox had been the reputed line of the “ Molly Cox place,” on the east, for thirty or forty years; that the tenants on that tract, and on the tract east of it, had -before and since Oox become the owner of both, worked to the road on each -side and claimed that as the line. That the defendant'himself had at a former trial declared on oath, that the road was the reputed line, and that he had only purchased to the road ¡and that he had paid no consideration for the land below the •road and only went there to get a permanent object to start from.</p> <p>The defendant contradicted the evidence as to his testimony •on the former trial.</p> <p>It was farther in evidence on the part of the plaintiff, that he recovered judgment in his suit at Spring Term, 1867, and that execution issued thereupon, under which the locus in quo was levied upon and sold, the plaintiff becoming the purchaser at sheriff’s sale and taking the sheriff’s deed therefor, under which he claims title. The plaintiff also read in evidence the •deed from Cox to the defendant conveying the locus in quo, •dated April 16th, 1866.</p> <p>The defendant was introduced as a witness in his own behalf, and produced a title from Cox to himself. He also testified to the effect that Cox was dead ; Hopkins an attesting witness was also dead, and that the other attesting witness, a ?son of the defendant, resided in the State of Tennessee, that he had endeavored to have him present; that he had promised to be present, and was absent without his consent or procurement. Evidence having been introduced tending to prove the hand-writing of Cox and also of the subscribing witnesses to the title bond, which the defendant also offered as evidence. To this evidence the plaintiff objected, the objection was overruled, and the plaintiff excepted.</p> <p>The defendant then offered to show by his own testimony, all the transactions that took place between himself and Cox concerning the loo us in quo. To this evidence the plaintiff objected on the ground that Cox was dead. The objection was overruled by the Court and the plaintiff excepted.</p> <p>The witness -then stated that Cox came to his house, in Virginia, to buy corn. lie declined to sell him any unless he was paid for the same. He told Cox that he already owed him about $1,500, and that he could not afford to make the debt any larger, and that he would sell him some corn if he could pay him for it, and pay or secure tire old debt. Cox told him he had no money but only land. The witness then told him he would buy land. After some chaffering about the trade he bought the “Molly Cox place,” and took the title bond. Cox asked $2,000 for the land, and be offered $1,500 for it. in the old debt, and at this price they agreed. Cox was his brother-in-law, and though a man of means, was very improvident, and for a long time got provisions from the plantation of the witness in Stokes county, and in this way became indebted to him. About 1857, he had a settlement with Cox and took his bond for $830, the sum due him for provisions previously furnished. Besides this lie paid off a bond due by Cox, to one Nut Moody, for about two hundred dollars. He also held a small account against Cox, and these three claims with the interest, amounted to $1,450, lacking a few cents. This with five dollars in cash and nine barrels ©f corn at $45, was the consideration for the land. That the $1,500 in old debts was recited in the title bond from a conjecture as to what the debts would foot lip, the interest not having been calculated until a few days afterwards. The title bond was given from an expectation that the plaintiff would not go to Stokes for some time. That finding it convenient sooner than he expected, he went over with Cox and concluded that he would have the matter closed and the deed executed. He came to North Carolina to have the' deed executed, because ho thought the law required it. He expected that Cox owed McCanless but did not certainly know it when the contract was made, and he did mot then know of McCanless having sued Cox, but on the way over to North Carolina Cox told him that he had been sued. He knew of no purpose on the part of Cox to .defeat the plaintiff, and heard from him no declaration of any such purpose. On his part, he purchased the land with no purpose, ■Other than to obtain payment of his debt. He suspected no purpose to defraud any one. He then thought Cox able to pay all his debts, and in fact he was able to pay them all if he could have sold all his other property then under no lien, as well in proportion as he had sold the “ Molly Cox place ” to the witness, which he said he was going to do. The witness further testified as to the execution of the deed and the disagreement as to where the line on the east side of the tract should run. His evidence did not materially differ as to these facts, from the evidence for the plaintiff, except that he stated that he might have gone off with Cox, when they reached the bend of the creek ; that he did not recollect doing so, but that if he did, it was for the purpose of hunting for the line, which some one had informed witness ran . across the creek about that point. That Cox agreed for the deed to be drawn crossing at the bend instead of f oard, while they were on the ground, and he did this from no promise or inducement on the part of the witness to cover the same from his creditors, or for his care or benefit in any wise; and there was no promise of compensation or reward in any way whatever, but it was insisted upon because the witness had heard that the line was at or near the ridge next below the foard. There was a remark made at the> time of the execution of the title bond, by Cox, to Mary Eeynolds that he had always intended to give her the “ Molly Cox place,” but he was in debt and he was forced to sell it, and now her papa could let her have it. But no such term or stipulation was made in the contract, and nothing of that kind was spoken of in the course of the trade, or had any connection therewith. He allowed Cox to go into a house on the. “ Molly Cox place ” during the winter of 1866-’67. After he was entirely sold out, he removed him thence to his house im Virginia, where he kept him over a year and sought to keep him longer. He told ~W. S. Lawson to attend the sale of the personal property of Cox, and to buy somethings for Cox, but neither of these things were done as an inducement or part consideration for the land, and from no motive except charity and regard for him, as the brother of his wife. There was. never any understanding that Cox had given to Mary Eeynolds $500 in the price of the land and fixed on $1,500 as the price, on that account. No such thing was ever spoken of, or known to the witness.</p> <p>• There was evidence corroboratory of the testimony of the defendant as to the bond for $930, which the defendant claimed as a part of the éonsideration paid to Cox for the land ; also as to Cox obtaining provisions from the defendant’s farm in Stokes county.</p> <p>The defendent also introduced one Gideon George, a surveyor, who testified that the line, if run at the bend due north, and south, would include exactly the quantity of land specified in the bond for title, but if the road be the line, then the: quantity will be about one hundred acres less.</p> <p>The defendant also .offered in evidence, a deed from Joshua Cox to Jesse Cox, dated in 1819, and another from Salathiel Stone, sheriff, to Eichaid Cox, the grantor of the defendant, describing the eastern line of the “Molly'Cox” tract of land as to be run1 on the highest part of the first cleared ridge below the road, commencing near the middle of the cleared ground. There was other evidence tending to show that the line as established between the defendant and Cox ón the day of the execution of the deed was at or near this line. There was no evidence that such lino was ever marked, until the sale to Reynolds, the defendant.</p> <p>It was admitted that Richard Cox had been the owner of the ■“Molly Cox” tract and the lands adjoining on the east, since 1835 ; and that owning on both sides of the Quaker Gap road, his tenants on both tracts had since that time worked to the road. It was in evidence that Richard Cox and Jesse Cox, under whom he claimed had been heard to speak of the road as the line. *</p> <p>The bond for title describes the land as being a tract in Stokes county, “ on both sides of the waters of South Double creek, containing 475 acres more or less, known as the “Molly Cox” tract of land.</p> <p>Among other things, the court charged the jury : That Cox, owning the land on both sides of the road, had a right to make the dividing line wherever it was agreed upon in his sale to the defendant; and if from the evidence, they could collect that the contract was for lands west of the road, with the road as the line, at the price of $1,500, and that the defendant and Cox afterwards added in a strip between the road and the line crossing at the bend of the creek, and this was without further consideration, it would be fraud, and the plaintiff would be entitled to their verdict. But, if from the evidence, they should find that the contract of sale was of the “ Molly Cox” tract of land, by its true lines, at fifteen hundred dollars, and and not by the road, as the line, and that the defendant go.t no more than he bought; and should they further find that the defendant paid therefor in old debts and corn and money, .fifteen hundred dollars, and that that was a fair price ; then they should ■ find for the defendant; and if the jury should find that the sale was by the true lines, that then in locating find determining where that was, and whether at or near the bend of the creek, and thence due north and south, they were at liberty to consider the title bond and all the deeds offered in evidence in the cause, and that as to that matter, the written evidence was of more weight than the oral.</p> <p>The jury rendered a verdict in favor of the defendant, and thereupon the plaintiff moved for a new trial upon the following grounds:</p> <p>1. Error in the ruling of the court in the admission of the title bond in evidence.</p> <p>2. Overruling the objection, and admitting the testimony of M. L. Smith in contradiction of W. S. Lawson.</p> <p>3. The admission of the testimony of the defendant as to the transaction between Cox, deceased, and himself.</p> <p>There was no exception to the charge of Ids Honor, and no instruction prayed for was refused. But it was urged upon the hearing of the motion that the charge, as given, was calculated to mislead the jury.</p> <p>The motion was overruled, and the plaintiff appealed.</p>

This was a Civil AotioN, for the recovery of the possession of land, tried before Fur ches, J., at Fall Term, 1875, of Ar.~ leghANY Superior Court. The case was heard upon facts agreed, which are fully set-out in the opinion of Justice Settle. The defendant relied upon the statute of limitations. The-court rendered judgment in favor of the plaintiff, and thereupon the defendant appealed.

OeimiNAl AotioN, charging an assault, with intent to commit rape, tried before his Honor, Judge ture, at the Fall Term-, 1875, of Pasquotank: Superior Court. All tbe facts pertinent to the points raised and decided in, this- court, are fully set out in the opinion of Justice ByNum. For certain reasons assigned, the defendant moved to quash the indictment. The court allowed the motion, and the Solicitor for the State appealed.

INDICTMENT for Fornication and Adultery, tried before his Honor, Judge 'Watts, at Fall Term, 1815, of tbe Superior ■Court of G-eanville county. The defendant was held to answer upon the following bill of indictment: “The jurors for the State upon their oath present, that Chas.

<p>CRIMINAL Action, tried before 'Moore, J., at December (Special) Term, 1875, of tbe Superior Court of Halifax county.</p> <p>The defendant was indicted for larceny and pleaded not guilty. A jury was empannelled and #fter bearing the evidence, argument of counsel and tbe charge of bis Honor, Judge Watts, announced in open court that they could not agree upon a verdict. Tbe counsel for tbe State and for tbe prisoner were both present. The prisoner was absent, being, tben in jail.</p> <p>TTis Honor, witbont having consulted the counsel for tbe:. prisoner, ordered a juror to be withdrawn and a mistrial entered. Prisoner’s counsel said nothing either for or against tbe order.</p> <p>After the order was made and tbe jury discharged, his counsel moved tbe court, upon affidavit, to discharge tbe prisoner upon the ground:</p> <p>1. That having once been put in jeopardy, be could not. again be tried for the same offence.</p> <p>2. That tbe defendant was not in court when tbe order was. made.</p> <p>Tbe motion was overruled and tbe defendant appealed.</p> <p>At December (Special) Term, Moore, J., presiding, bis. counsel again moved tbe conrtto discharge tbe prisonerupon tbe «ame ground. The motion war allowed and the State appealed.</p>

Civil Action, tried before his Honor, Judge Moore, at December (Special) Term, 1875, of the Superior Court of Halifax county. The 'following are the facts agreed and sent to this court as a part of the record: “ This was an action upon a promisory note,-for the recovery of money. The summons was issued April 3d, 1875, returnable to Spring Term, 1875, of Halifax Superior Court.

Civil AotioN for damages, tried at December (Special) Term, 1875, of the Superior Court of New HaNoveR county, his Honor, Judge Henry presiding. As the case is decided in this court upon a single point of law, it is deemed unnecessary to state all the facts as disclosed by the record. There was a verdict in favor of the defendant; whereupon the plaintiff moved the court for a new trial, upon the ground that the verdict was contrary to the weight of the evidence.

INDICTMENT for Forcible Trespass, tried before Buxton, B at Fall Term, 1875, of the Superior Court of Cumberland county. The defendants were charged with forcibly taking and carrying away from the actual possession of the prosecutor, one Thomas Norwood, a stack of fodder, the prosecutor being present and forbidding it.

<p>■Where a mortgagor has an equity of redemption, subject to a power of sale, and the land mortgaged is actually sold after forfeiture, the right of the mortgagor is entirely extinguished.</p> <p>Hence, where A executed and delivered a mortgage to B to secure the repayment of a sum of money borrowed by him of B, the mortgage containing a power of sale upon forfeiture, and the land was sold upon the failure of A to repay the money at the time specified: It was held, that the administrator of A could not sustain a petition to sell the interest of A in the mortgaged premises, to create assets for the payment of debts due by his intestate upon judgments docketed prior to the execution of the mortgage, because the sale divested the intestate of all interest.</p> <p>Held further, That the liens of the judgment creditors, if enforced at all, must be enforced by some direct proceeding on their part for that purpose.</p>

This was a Civil ActioN, tried before his Honor, Eure, J., at Spring Term, 1875, of the Superior Court of Chowak county. Tbe action was originally commenced in a Court of Justice of tbe Peace, to recover tbe sum of $85.00, alleged to be clue tbe plaintiff by contract. At tbe time of issuing the summons, the plaintiff filed the following affidavit: “ J. R. E. Hathaway makes oath : 1.

MotioN in the cause beard before his Honor, Henry, J., at Spring Term, 1875, of BuNcombe Superior Court. The following are substantially tbe facts agreed: At Fall Term, 1874, a motion ivas made in the cause, to call In an execution and set aside a levy.

Civil Actiox, to vacate and declare void a certain mortgage, and for other relief, tried at tlie Spring Term, 1875, of G-RANVille Superior Court, before his Honor, Judge Watts The facts, as disclosed by the complaint and answer, are substantially the following: The defendant, Ragland, for the purpose of paying for a house and lot he had purchased from one Cheatham, on the 9th of August, 1873, borrowed of the .plaintiff, three hundred and fifty dollars.

Civil AotioN, in the nature of Ejectment, tried before his Honor, Judge K^rr, at Spring Term, 1875, of the Superior Court of RaNdolph county. The defendant, upon certificate of counsel and affidavit, was allowed by the court to defend the action without bond. Tiie plaintiff claimed title to the locus in quo as a purchaser .at sheriffs sale.

IndictmeNt for robbery, tried before Watts, J., and a jury, at January Term, 1876, of tbe Superior Court of Wake county. The case was determined in this court upon a single exception, and it is therefore unnecessary to set out in detail all of the facts.

Civil Actiok for the recovery of money only, tried before Kerr, J., at Spring Term, 1875, of the Superior Court of DupliN county. There was a verdict in favor of the plaintiff, and the defendant moved for a new trial. Motion allowed and the plaintiffs appealed. The other facts necessary to an understanding of the points raised and as decided, are sufficiently stated in the opinion of the court.

Civil AotioN, beard upon demurrer to the complaint, before bis Honor, Judge Scheme]? at Spring Term, 1875, of the Superior Court of GastoN county. The complaint alleged : That the plaintiffs, Sarah Adams, Mary Torrence, Eliza Lineberger, an infant under twenty-one years of age, and without guardian, and J. H. Holland, are the distributees and heirs at law of Jasper N. Holland, and the wards of the defendant Quinn.

Special ProceediNg, originally commenced in tbe Probate 'Court of Rutherford county and removed thence to the «'Superior Court, where it was heard before Sohenolc, J., at Fall Term, 1815. The plaintiffs filed a petition for an account and settlement '«of the estate of Elias Lynch, deceased, according to the terms ■of the will.

<p>A guardian has power to exchange property of his wards, which he thinks hazardous, for other property; and if his discretion has been honestly exercised in the transaction, the courts will not hold him. liable for the results.</p> <p>Where a guardian received from an administrator a note on a certain person without surety, it was his duty, at once to collect the same, or require the maker of the note, although a wealthy man, to secure it. If, instead of this, he exchanges said note for one payable to himself as guardian, also unsecured, he becomes liable for the amount thereof.</p> <p>In the exercise of a sound and honest discretion, a guardian was empowered, during the late war, to receive Confederate money for the rent of his wards’ land and the hires of their slaves, and disbursing the same for their support and education. H e might also receive payment of apparently solvent bonds and notes, in the same currency, if the amounts were similarly disbursed, or expended in the payment of taxes, and such like, without being liable to be charged therewith.</p> <p>A guardian should be charged with what he receives, and credited with what he paid out, it not appearing that he collected anything prematurely, or kept on hand any unreasonable sum.</p>

Civil ActioN, on a bond, beard before Kerr, J., at. Fall Term, 1875, of the Superior Court of Rockingham county. The action was brought to recover $12,000, alleged to be due the plaintiff as assignee of one E. M. Powell. After issue joined, the defendant took the deposition of a non-resident -witness, under a commission, returnable to Fall Term, 1875, and during the term the deposition came, directed to the Clerk, in a sealed envelope.

PetitioN to rehear the two cases, decided in this court at January Term, 1875, and wliicli are reported in 72 N. O. Rep. 441.' The plaintiff moved the court to re-hear upon the ground in the first named case, that there was error in the judgment and decision aforesaid in this, that although the county of Stokes is not liable on the note, yet it is liable on the implied contract to repay the money borrowed of Poindexter, to whose rights, on payment of the $500, the plaintiff,…

Civil AotioN, to recover damages for tlie burning plaintiff’s fence, tried at December Term, 1875, of Guilfoed Superior Court, before bis Honor, Judge Kerr.

This was a Civil ActioN, originally commenced in a Court of Justice of the Peace, and brought by writ of reeordari, to the Superior Court of EaNDOLPh county, where it. was heard at Spring Term, 1875, before his Honor, Kerr, J. The facts pertinent to the points raised and decided in this court, are fully stated in the opinion of Justice Eeade. From the refusal of his Honor to place the case on the trial docket, the defendant appealed.

This was a “coíttroversy submitted without action,” and decided by his Honor, Judge Kerr, at Chambers, in the county of Guilford, — day of January, 1876, upon the following case agreed: “ Of the ordinances passed by the Commissioners of the-city of Greensboro’, there is one for defraying the current expenses of the corporation, for the years 1875 and ’76, to-wit: ‘ On all personal property, taxed at this time by the State,, within the corporate limits of the city, included…

This was a civil actioN, to recover damages for injury to land, tried before Ewe, J., at Spring Term, 1875, of the Superior Court of Chowan county. The plaintiffs were the owners, before and since to the present time, of certain lots in the town of Edenton, which they regularly cultivated. The defendants were the Board of Commissioners of the town of Edenton.

Indictment against the mother for killing her bastard child,, tried at the Fall Term, 1875, of the Superior Court of Yan-cey county, before his Honor, Judge Henry. The case, after argument and the charge of his Honor, was given to the jury on Monday of the second week of the term. His Honor on Saturday, (six days,) polls the jury, and finds as a fact, that they are-unable to agree, he directs a juror to-be withdrawn and a mistrial entered.

This was a proceeding in the nature of a CRIMINAL actxoN, commenced by warrant before a Justice of the Peace, and carried by appeal to the Superior Court of DupliN, and there tried at Spring Term, 1875, before his Honor, Judge McKay and 'a jury. On the trial in the court below, the jury returned the following verdict: “ The defendant is a hand properly assigned to work on a public road in Duplin county, from Concord church to the Sampson county line.

INDICTMENT, for Forcible Trespass in removing rails, tried at 'the Spring Term, 1875, of Duplin Superior Court, before his Honor, Judge Kerr. The case made out and signed by counsel, states that the defendant and a boy moved a division fence between the field the defendant rented, and the prosecutrix, who was tenant by dower on the other side, she being present and forbidding it. Under the charge of his Honor, the defendant was found .guilty, whereupon he appealed.

ExceptioNS to the account of an administrator, heard before the Probate Court of Chowan county, and thence carried by appeal to the Superior Court and again heard by Mure, J., at .Fall Term, 1875. His Honor, presiding in the court below sends to this court, substantially, the following facts: Augustus R. Creecy died in November, 1872, and administration on his estate was granted to the defendant, Edward Pearce.

INDICTMENT for obstructing a creek by the erection of a dam across tbe same, tried before bis Honor, Judge Watt.?, at tbe Fall Term, 1875, of tbe Superior Court of Johnston county. Tbe defendant was beld to answer for a misdemeanor, under act of 1872-73, Bat. Rev., chap. 32, see. 154. On his trial in the court below, the jury returned a special verdict, finding certain facts, upon which the presiding Judge pronounced him guilty. From this judgment, tlie defendant appealed.

<p>In an action for the recovery of land under the Code of Civil Procedure, the defendant, may set up an equitable defence to the claim of the plaintiff who has the legal title; and till persous interested in such equitable defence, should be made parties, and not driven to assert their rights by a separate action.</p>

Civil ActioN originally commenced in a court of a Justice ■ of the Peace, and beard upon appeal before bis Honor, Judge Moore, at July (Special) Term, 1875, of GeaNVIlle Superior •¡Court.

This was a MOTION in the cause heard before Ilenry, J., at Chambers in New HaNOVEE county, on the — day of December, 1875. The defendants moved the court to increase the amount of a bond for an injunction theretofore granted. The motion was allowed, and the plaintiffs appealed. All the facts necessary to an understanding of the case as decided, are stated in the opinion of the court.

Civil ActioN to recover the amount due on a bond, tried before Buxton J. at Spring Term, 18 J4, of Moose Superior Court. The bond, (or note under seal,) was executed by the defendant and others, was payable jointly and severally to TI. B. Judd or order, on the 25th December, 1861, in the sum of three hundred dollars. There were several credits entered on the note, and it was not endorsed by the payer.

Civil AotioN tried before Henry, J. at January (Special) Term, 1875, of the Superior Court of Wake county. Held: or such order made and insisted that if the money was loaned as alleged the court had not power to authorize the borrowing of the same. By consent the action was tried upon affidavits filed by the plaintiff and the facts found to be as above set out.

<p>Granting or refusing a continuance in the court below, is in the discretion of the presiding. Judge; and it would require circumstances, proving beyond doubt, hardship and injustice to induce this court to review the exercise of such discretion, if in any case it had the pcwer to do so.</p> <p>Hence, where a case has been continued several terms, and a motion is made to continue it again, in the absence of the affidavit showing merits, this court will not review the decision of the court below, refusing a continuance.</p>

INDICTMENT, for an assault with intent to commit a rape, tried before '•c'muck. •/.. and a jury, at Fall Term, 1875, of the Superior Court of Cababbus comity. It was in evidence that on the 10th July, 1875, the prose-cutrix, a woman over ten years of age, and a young girl were returning home, along the track of the North Carolina Railroad, a few miles from Concord.

PetitioN by defendants for a certiorari, filed at this term. The plaintiffs brought an action against the defendants on a promissory note and obtained judgment thereupon at Fall Term, 1875, of G-uilrord Superior Court. From that judgment the defendants appealed and duly filed an appeal bond. More than ten days after the notice of appeal the defendants” counsel served upon the counsel for the plaintiffs a statement of the case upon appeal.

<p>Petition filed at this term of the court in behalf of all the parties to the action.</p> <p>This ease was decided at the last term of the court and is reported in 73 N. C. Rep., 174. The petition states : That the principal object of the action, after ascertaining the interest of the legatees in the estate of the testator, was to ascertain whether the defendant, as administrator de bonis non, had the right to sell the lands of the testator, and to ascertain how the interest of the defendants, Jessie Stubbs and Harry Stubbs, grand children of' the testator, (whose interest in the land had become vested by the death of their mother,) should be sold.</p> <p>The opinion of the court settles the interest of the respective legatees in the estate of the testator, but does not state how the interest of the Stubbs children should be sold, nor whether the administrator de bonis non could convey the lands of the testator.</p> <p>Therefore in order to save cost to the parties to the cause, the petitioners pray that the court render judgment:</p> <p>1. Whether under the will of the testator, the defendant has the power as administrator de bonis non to sell the real estate of the testator, and particularly the Woodlawn plantation.</p> <p>2. How tlie interest of tbe said Jesse Stubbs and Harry Stubbs may be sold.</p> <p>3. "Whether it is not the duty of the defendant, Hassell under the direction of the said will, to sell the lands in the pleadings mentioned, and to pay over the proceeds to the devisees under said will.</p> <p>4. For a general construction of the will.</p>

<p>This was a Civil Action, to recover the amount of a bond, tried at August Term, 1875, of the Superior Court of Edge-COMBE county, before his Honor, Judge Moore.</p> <p>In his complaint, the plaintiff alleged, that the defendants, are indebted to him in the sum of twenty-nine hundred and eighty-six dollars and seventy-seven cents, as is evidenced by their bond, executed and deliuered on the 24th day of July, 1874, and payable on the 1st day of February, 1875, which, said bond is in the following words and figures, to-wit:</p> <p>“ Taeboeo, N. C.,</p> <p>“July 24th, 1874.</p> <p>“ $2,986.77: — On the first clay of February next, (1876,) “ we promise to pay W. M. Pippin, or bis order, two thou- “ sand nine lnmdred and eighty-six, 77-100 dollars, for value “ received.</p> <p>(Signed) “ CITAS. M, WESSON, (seal.)</p> <p>“ “ CARRIE M. WESSON, (seal.)</p> <p>“ Credit $154.62 and $45.10.”</p> <p>2. That said bond was executed by Caroline M. Wesson, with the consent of her husband, Chas. M. Wesson, as testified by his signature to said bond, both assenting thereto at the same time ; and the said Caroline, signing the same, at the same time with her husband and at his request, without the procurement of the plaintiff, or any other person.</p> <p>Wherefore plaintiff demanded judgment for two thousand nine hundred and eighty-seven dollars.</p> <p>The defendants, at the same term, demurred to the complaint of the plaintiff, assigning as grounds for such demurrer, that the complaint does not state facts sufficient to constitute a cause of action against the said Caroline M. Wesson, in that: It does not appear on the face of the complaint, that the contract specified as being entered into by her, was made ■with the written consent of her husband, or for her necessary, personal expenses, or for the support of her family, or in order to pay her debts existing, before marriage, or that it was made by her as a- free trader, or that the debt, secured by the note, was specifically charged on her separate estate and property, at or before the execution thereof.</p> <p>Upon consideration, the court sustained the demurrer, and gave judgment against the plaintiff for costs. From this judgment, plaintiff appealed.</p> <p>1. Before the adoption of the present Constitution, it was recognized as settled law in this State that a wife may, when, not restricted by the deed of settlement, with the consent of the trustee, specifically charge her separate estate with her contracts and engagements. Knox v. Jordan, 5 Jones Eq., 175 ; Frazier y. Brovmlow, 3 Ired. Eq., 237. “But the court in that case seemed unwilling to sanction the doctrine that as to the separate estate of the wife she was to be regarded as a feme sole in all respects, as held in England, and also in the State of New York. But however proper this unwillingness of the court to recognize that doctrine might have been at the time of that decision, there can be no reason, since the adoption of our present Constitution, why the English and New York doctrine should not now be followed in our State.” Withers v. Sparrow, 66 N. C. Bep., 138. If the construction of Art. X, see. 6, of the Const., is, that as to the separate estate of the wife she is to be regarded as a feme sole, the effect of such a construction is to make her personally liable at law and to give a remedy at law against her upon such contract as would have formerly been enforced in equity against her separate estate. If, therefore, there is no restriction of her power to make contracts except as to conveyances with the written consent of husband, then the marriage act is unconstitutional. The court must reverse Sjmrrow v. Withers, or overrule the demurrer.</p> <p>2. If the effect of Art. X, sec. 6, is not to treat a married woman as a feme sole in all respects, with the exception of the restriction of conveyances which requires the written consent of her husband, then, and in that case, the marriage act is an enabling act, and authorizes afine covert to contract in certain cases. Sec. 17, Bat. Iiev., 590. And the written consent of the husband is given as testified by his signature to the bond, both assenting thereto at the same time. Here is a joint contract. It is as much the contract of the wife as of the husband, and the presumption is that the written consent of the lmsband was given at the time, or at least before the delivery of the bond. . It is not inconsistent with the face of the instrument. If the husband was principal and the wife surety, it would be consistent with the face of the paper that the written consent of the husband was not given, for the wife may have signed afterwards as husband’s surety. Reverse the case: Suppose the wife is principal and the husband surety, the rule must be different. For by his signing as surety for his wife, he thereby gives his consent, which is in the strongest possible form. But if the court should be of the opinion that it is consistent with the face of the instrument in this case, that Mrs. Wesson signed after that of her husband, then plaintiff insists that in analogy to those cases under the statute of frauds, parol evidence is admissible to show that it was executed at the same time. That the assent of herself and husband to them contract co-existed. The case of Miller v, Inin, 1 Dev. & Bat., 103, was the first case under our law which changed the old doctrine laid down in Wain v. Warlters, Smith’s Leading Cases, in our State. In this case it was held that under the act of 1809, “to make valid parol contracts for the sale of land and slaves, it was not required that the consideration of the contract should be set forth in the written memorandum of it. And this case has been acquiesced in as settling the construction of the act, that the consideration of a contract for the sale of land or slaves need not be set forth in the written memorandum of it. Rice v. Carter, 11 Ired., 298; Green v. 7horvtmi, 4 Jones Rep., 231. The consideration is no part of a contract, but is an inducement to it. And the same doctrine is laid down in 2 Kent, 613, 614, 12 ed., and numerous cases cited. The authority to the agent who contracts for the sale of goods, need not be in writing. Hid. The statutes of frauds does not require that the authority of the agent contracting, even for the sale of land, should be in writing, ibid.</p> <p>Married woman secured in all ber estate real and personal. ^Constitution, Article X, sec. 6.</p> <p>No woman capable of making a contract to affect ber real or personal estate,. except for ber necessary personal expenses, or for the support of the family, or such as may be necessary in order to pay ber debts existing before marriage without the written consent of ber husband. Battle’s Eevisal, chap. 69, •sec. 17 : Harris v. Jenkins, 72 N. C. Eep. 183.</p> <p>The separate estate of a married woman is not liable to ber personal engagements generally, but only where the debt is •charged specifically upon ber separate estate with the concurrence of the trustee if there be one. Draper y. Jordan, 5 Jones Eq. 175, Wharton v. Malcom, 6 Jones Eq, 120.</p> <p>Case of Wethers, EJr., y. $parow and wife, 66 N. C. Eep. 129, does not conflict with above. The jury found that the credit was given to the wife, that the trustee assented to the •contract, and that the wife expressly contracted on the credit •of her separate property.</p> <p>See case of, The Cora Exchange Insurance Company v. Bab-•cock, 42 N. Y. 613, 1 Amer. 601. Kernen v. Kuffat, 64 Missouri 582. (11 Amer. 541;) Philips v. Cranes, 22 Ohio p. 371; (Y. Amer. 675. Willard v. Earthan, 15 Gray, (Mass.) ■328. Machatton Brass and Manufacturing Company v. Thompson, 58 N. Y. 80.</p>

Tliis was a civil actioN tried bfore his Honor, Judge Seymour, cat Pall Term, 1875, of the Superior Court of Wilsow county. Accompanying the record sent upon appeal to this court, is the following: CASE AGREED “On the 10th day of February, 1872, the defendants executed to the plaintiff: the following sealed instrument: $2000.00.

Civil AotioN for the recovery of money only, heard before his Honor, Judge Seymour, at Fall Term, 1875, of the Superior Court of Wayne county. The plaintiff on the 1st day of August, 1868, sold to the defendant, Mary E. Richardson, a tract of land in Orange county, for thirteen thousand dollars, and took three notes •under seal for that amount, signed by Mary E. Richardson as principal, and her husband, the co-defendant, with whom she intermarried in 1866.

Civil Action, tried before Moore, J. and a jury, at July (Special) Term, 1875, of Granville Superior Court. Tbe action was brought to cancel a deed of assignment and release executed and delivered by tbe plaintiffs to tbe defendant on the ground that the same was obtained by false ■and fraudulent misrepresentations made by the defendants.

PbtitioN to re-hear the case as decided at January Term, 1875, of this court, and which will be found fully reported in 72 N. C. Rep., 336. The ground upon which the present petition is based, is that the decision of the court rendered at January Term, 1875. conflicted with prior decisions of the court in eases where the same principles of law were involved. The cases referred to are mentioned and commented upon in the opinion of the court at this term.

Civil AotioN, for the recovery of damages, tried in the Superior Court of CurrituoK county, at Fall Term, 1875, before his Honor, Judge Jiure, and a jury. The plaintiff alleges in his complaint, that the defendant has obstructed the free use of a wharf, which has been dedicated to the public for over fifty years, and that on account of such obstruction he and others have been greatly endamaged in not being allowed to ship or receive freight thereat.

Civil Action to recover the penalty against a sheriff under the statute, for making a false return, tried before Watts J. at January Term, 1876, of Nobthamptoñ Superior Court. The complaint alleged: That at June Term, 1872, of the Supreme Court, judgment was rendered in an action in said court in favor of the State of North Carolina on the relation of W. R. Cox, Solicitor, to the use of M. F. Peebles against N. Peebles and others, for the sum of $15,337.28.

Civil Action-, in the nature of Ljcctment, tried before Furohes, J., at Fall Term, 1875, of the Superior Court of Caldwell county. The case was before this court at January, 1874, and the-facts are fully reported in 70 N. C. Rep., 589. There was a verdict and judgment in favor of the plaintiffs, ■and the defendants appealed.

Civil ActioN upon a. bond, tried before Watts, J., at .Fall Term, 1875, of the Superior Court of Halifax county. The complaint alleged substantially the following facts : On the 1st January, 1871, and from that date to the time of filing the complaint, the plaintiff lias been sheriff of the county of Halifax.

Civil Aotioií, tried before Eure, J, at Fall Term, 1875, of PeequiMANS Superior Court. Tlie suit was brought to recover the sum of $621.50, alleged to be due the plaintiff on account of services rendered the testator of the defendant White. It was in evidence that the plaintiff married the testator’s daughter, and that for nine years before the death of the testator, by agreement boarded him for the rent of his farm. The board was a fair price for the rent.

This was a Special PiiooEKmMU, under the act of March :>d, 1875, heard before Seymour. J., at Chambers, in Craven-eonnty, October 16th, 1875. The proceeding was instituted upon the affidavit of the plaintiffs against the defendant, who is the treasurer of Craven county, on the ground that the surety on his official bond is insufficient.

This was a Special PboceemNG, instituted under the pro ■ visions of the act of March 3, 1875, heard by Seym&ur, J., at Chambers, in CeaveN county, October 16th, 1875. The plaintiffs filed an affidavit that they had made diligent inquiry as to the sufficiency of the official bond of the defendant, who is sheriff of' the county of Craven, and that they verily believed said bond to be insufficient, in the ability of the sureties thereto.

This was a Special Peocobeding under the Act of March 3rd, 1875, heard before Seymour J. at Chambers in CkaveN county, 'October 16th, 1875. The plaintiffs filed an affidavit that they had made diligent enquiry as to the sufficiency of the official bond of the defendant who is Clerk of the Superior Court of Craven county, and they believed the same is insufficient in the ability of the .sureties thereto.

Civil AotioN, for an Injunction, heard before McKay, J., at Fall Term, 1875, of CravbN Superior Court. The complaint alleges: The plaintiffs are citizens of the county of Craven, and residents and tax-payers of township No. 8. In the year 1873, the township trustees of said township levied taxes upon the property therein and upon the polls, to to pay a large pretended, but unfounded debt, alleged to have been accumulating for several years.

INDICTMENT, for Lar cany, tried before Fu,r ches, J’, at Fall Term, 1875, of Iiosdell Superior Court. The State introduced one Sharpe to prove the declarations of the prisoner. The counsel for the prisoner objected to the admission of the evidence on the ground that they were improperly obtained.

<p>Civil ActxoN, tried before '•eymour, J., at July Term, 1875, of Edgecombe Superior Court, upon tbe following</p> <p>CASK AGREED :</p> <p>At a regular term of the late County Court of Edgecombe county, held at Tarboro’ on the fourth Monday of February, 1864, a majority of all the justices being present, an order was made in the words and figures following :</p> <p>“ It appearing to the satisfaction of the court that it will require at least $25,000 for the support of the paupers of this county for the next twelve months, including the amount due1 for provisions now on hand and not paid for ; and that there is nothing in the hands of the Treasurer of the Board of Wardens to meet the same, wherefore it being the duty of the court to provide for said deficiency, and the matter being fully considered: It is ordered, by the court, a majority of the Justices being present, that Thomas Norfleet, Treasurer of the said Hoard of Wardens, be and is hereby fully authorized and requested to borrow as it shall be needed, upon the- faith and credit of the county, not exceeding in the aggregate the sum of §25,000, to be returned to the lender or lenders two years after the termination of the present war, in currency, the interest to ho payable annually in currency also ; that the said Thomas be, and he is hereby fully authorized as Treasurer of said Board, and in behalf of the county, to sign certificates and deliver them to the persons from whom he may borrow the money, setting forth therein the sum borrowed and the particulars of the loan, and that it be his duty to report to the court at the next term a statement- in writing showing the. amount borrowed from each person and the date of each cer-rificate issued by him. It is further ordered, That he borrow as much of the said sum as he can from the Wilson, and school funds of this county, receiving Confederate Treasury notes under §100, at par, but in borrowing from others that he do so upon as favorable terms as possible for the county by giving public notice and inviting competition; and the money when thus realized is hereby appropriated for the support of the paupers of this county in such matters as- the Wardens shall direct.”</p> <p>The Wilson fund was a fund in the hands of the Chairman <>f the County Court, delivered to him and his successors by the late Louis D. Wilson for the benefit of the paupers of said county.</p> <p>At the same term of the court an order was also made for borrowing money for the support of the families of indigent soldiers, but this fund had no connection with that borrowed under the order above written^</p> <p>Thomas Norfleet, the Treasurer of the Wardens of the Pool-, in pursuance of said order, after public advertisement and after complying with all the directions contained therein, borrowed from John H. Daniel, the testator of tlie plaintiff, for and on behalf of the county, the sum of two thousand three hundred and twenty-five dollars in Confederate Treasury notes, on the terms that the county should pay for every dollar thereof 43 1-93 cents, being the sum of one thousand dollars, and issued to said Daniel the following certificate :</p> <p>“ Tabbobo, N. C., April 9th, 1864.</p> <p>This certifies that I, Thomas Norfleet, as Treasurer of the Board of Wardens for Edgecombe county, in behalf of said county, acting under authority conferred on mo by the Court of Pleas and Quarter Session of said county, at February Term, 1864, have this day borrowed of John H. Daniel, the sum of two thousand, three hundred and twenty-five dollars in Confederate Treasury notes, to be repaid by the county at the end of two years after the expiration of the present war with the United States, at the rate of forty-three 1-93 cents for every dollar so borrowed. Amounting to one thousand dollars which last mentioned sum is to carry interest from the elate hereof, payable in currency on the 9th day of April in each and every year hereafter until the said sum of one thousand dollars shall be paid. In witness whereof I have hereunto subscribed my name the day and year above written. (Signed) ' THOMAS NORFLEET,</p> <p>Treasurer Board of Wardens for Edgecombe County.”</p> <p>The whole amount borrowed from individuals was $11,161 for which certificates were issued for $4,840.00, the residue of the $25,000 was borrowed from the Wilson fund and the common school fund.</p> <p>The price agreed to be paid for said Confederate Treasury notes was the common price for which they could be obtained at that time, and the money so borrowed was used by the Treasurer of the Board of Wardens for the support of the paupers.</p> <p>John H. Daniel died in the year 1873, leaving a last will and testament, in whieli the plaintiff was appointed his executor, and he has duly qualified as such.</p> <p>At an adjourned meeting of the Board of County Commissioners for said county, held April 29th, 1873, William EL". Johnston, Esq., an attorney at law, came before the Board and stated that he held, as attorney for the plaintiff’s testator, the above certificate, and a similar one issued to Austin, Norfleet & Co.; that similar certificates were issued to and held by others; that the holders desired . to test the liability of the county on the same, and suggested that the most economical way was to let the'firm of Austin, Norfleet & Co. decide all claims. To this he understood them to assent and four of the members of the Board (there being a vacancy,) accepted service of the writ of summons issued against them by Austin, Norfleet & Co., by writing their names then and there on the back of said summons, and on account of this agreement no suit was brought on the certificate of the plaintiff. Capt. W. S. Duggan was Chairman of the Board, and spoke for the-Board ; no vote was taken.</p> <p>The suit of Austin, Norfleet & Co., was heard before Judge Moore, at July Term, 1874, of said court, but before his Honor had announced his decision upon the liability of the defendants, and after the close of the argument, the plaintiffs proposed to the defendants to accept the scale value of the money loaned, and the proposition was accepted, and the suit compromised.</p> <p>At the session of the Board of Commissioners held on the first Monday in January, 1875, the plaintiff applied to the defendants to pay the certificate above named, but the defendants refused to pay the same.</p> <p>Upon the foregoing state of facts the court held:</p> <p>1. The original certificate of April 9th, 1874, was invalid,, not being under seal.</p> <p>2. The defendants made no new promise in April, 1872„ sufficient to repel the bar created by the statute of limitation.</p> <p>3. The proposition of Mr. Johnston to make the case of Austin, Norfleet & Co. a test case, was not voted on by the Board.</p> <p>4. The action of the Board, if any, on said proposition, was not recorded in the minutes of said Board.</p> <p>Judgment was accordingly rendered for the defendants and the plaintiff appealed.</p>

This was a Civil AotioN, in the nature of Ejectment, tried at June Term, 1875, of Halifax Superior Court, before his Honor Judge. Watts.

<p>The real estate held hy the N. C. Railroad Company, ior right of way, station places, £c., is exempt from taxation until the dividend of profits of said company shall exceed six per cent, per annum As the said dividends have not as yet reached that amount the authorities of a county through which the said road passes, have no power to tax the same.</p> <p>(The Wilmington, Columbia & Augusta Railroad Co. v. The Commissioners of Bru-nmiok County, 72 N. 0. Rep. 10, cited and approved.)</p>

Tills was a Petition, originally filed in the Court of P.eas and Quarter Sessions, of JohNStoN county, and thence carried to the Superior Court, where it was tried before Watts, J., at Spring Term, 1875, upon the following CASE AGREED: This is a petition filed by the plaintiff against the defendant at November Term, 1857, of tlie Court of Pleas and Quarter Sessions of Johnston county, to recover of the defendant, damages, on account of the construction of its railroad across…

<p>National Banks are subject only to tbe penalties prescribed by the U. b. Banking Act, for taking usury.</p>

This was a Civil ActioN in the nature of a Bill in Equity for the specific performance of a contract, tried before Suhench J. at Fall Term, 1875, of the Superior Court of MeckleNbueg county. A single question is involved in the decision of the case in this court, which is fully stated in the opinion of Chief Justice Peaeson. It is therefore deemed unnecessary to state the facts set out in the voluminous record sent to this court upon appeal.

Civil ActioN to recover the amount of two promissory notes, tried in. the Superior Court of PolK county at Fall Term, 1875, before his Honor Judge So/ieiieJc, and a jury. In his complaint, the plaintiff alleges that as assignee, he is the owner of two notes, made by the intestate of the defendant, one payable to John Bankston Davis, and by him endorsed to the plaintiff, and another payable to one B. II. Beid, also endorsed by said Davis as attorney for Beid.

Civil Action, tried before Scheuak, J., at Spring Term, 1875, of CabaRRüs Superior Court. Tbe action was commenced in the name of W. P. Moore to recover tbe value of five bales of cotton, and was prosecuted in bis name until Fall Term, 1875, wlien the death of the plaintiff was suggested upon tbe record. At July Term, 1873, on motion of the plaintiff’s counsel, J. H. Carmer was made a party plaintiff.

The action is brought by the distributees of the intestate of the defendant Pike, against him as administrator on his official bond, to which the other defendant, Neese, is one of the sureties, (the… Held: that Neese was concluded by the judgment against his principal, Pike, and that the plaintiffs were entitled to recover. Judgment accordingly. Prom this judgment the defendants appealed.

Civil ActioN, tried on demurrer before Bvxton J at Spring Term, 1875, of the Superior Court of the county of Haskett. The following are the substantial facts as contained in the statement of the presiding Judge. The action was instituted upon the official bond of K. M. McNeill, Sheriff of Harnett county, executed in September, 1874, to recover a balance of taxes due the county on the tax list of 1874.

Civil AotioN for damages, originally commenced before a Justice of the Peace, and carried on appeal to the Superior Court of Guilford county, where it was tried before K¿n\ •/., and a jury at December Term, 1875. The plaintiff instituted the action to recover the sum of two hundred dollars damages, on account of injury to a piano forte, shipped by the plaintiff over the railroad of the defendant.

MotioN in the cause, heard before Watts, J, at Fall Term, 1875, of the Superior Court of Franiclin county, upon the following : CASK AGREED : The defendant E. A. Speed is seised and possessed of a tract of land lying in Franklin county, containing three hundred and seventy acres, and was so seised and possessed at the adoption of the present constitution. 2.

Scxee Facias, on a forfeited recognizance, heard before Judge Solum ok. at Fall Term, 1875, of the Superior Court of MeckleNbubg county. The defendant Houston had been indicted for foi’gery, and ¡aid was in custody when, upon his own affidavit, the case was continued. The court, after such continuance, made an order to discharge him from custody, upon Iris entering into recognizance with sureties, in the sum of twenty-five hundred dollars, for his appearance at the next term.

This was a Motion heard before Ilenry. -Z, at Fall Term, 1875, of the Superior Court of Buncomcbe county. Notice was issued to the defendant as administrator of W. A. Patton, deceased, to show cause why execution After execution was issued, no plea being filed, G. W. Clayton paid off the judgment and took an assignment of the same to his own use. The notice to show cause was then issued and served.

<p>When one person renders services to another, the law implies a promise to pay what the services are reasonably worth. The relation of granddaughter and gram 1 father existing between the plaintiff and the intestate of the defendants, does not rebut the presumption so as to throw upon the plaintiff the onus of proving a special contract.</p> <p>{Williams v. Barnes, 3 Dev. 343, cited and approved )</p>

This was a civil aottoN, tried before Waits, J., at Fall Term, 1875, of the Superior Court of Wake county.

Civil Action, tried before Henry, at December (Special) Term, 1875, of New Hanoveb Superior Court. The plaintiff, in 1873, through their agent, one Spiro, sold to the defendant an iron safe, for two hundred and thirty dollars, payable by note at four months after the execution thereof. The defendants signed and delivered to Spiro, a •written order for the safe.

INDICTMENT for an assault by poisoning, tried before Watts, J., and a jury, at January Term, 1876, of tbe Superior Court of Waee county. ■When the case was called for trial, the counsel for the State moved the court that the witnesses for the defendant should leave the court room, and the motion was allowed. Accordingly, the witnesses were sworn and sent out of the court room.

Case Agreed, tried before Mitchell, J., at Spring Term, 1872, of Ashe Superior Court. The plaintiffs, all lieirs-at law, of one Jesse B. Beaves, claim that they are tenants in common with the defendant, and have title to one thirty-second part of certain lands, described in the complaint, and ask that their share may be declared, and the premises sold for the purpose of making partition.

<p>An irregular judgment rendered at one term may be set aside at a subsequent term, independent of the provisions of the O. O. P.; but an erroneous judgment cannot be set aside at a subsequ nt term.</p> <p>An erroneous judgment is one rendered according to the course and practice of the court, but contrary to law. An irregular judgment is one rendered contrary to the course and practice of the courts, as a judgment without service of process.</p> <p>The power of amendment extends only so far as to make the record speak the truth; and the record cannot be so amended, as to show what ought to have been done, but only what was done.</p> <p>(Cowles, Adm’r., v. Hayes, 69 N. C, Hep 406, cited and approved.)</p>

Civil ActioN, for the claim and delivery of personal property, tried on demurrer before his Honor, Judge Mvore, attire Pali Term, 1875, of Hektfoed Superior Court. The plaintiff filed the following affidavit, to-wit: “ John B. Sharpe, the plaintiff above named, being duly sworn, says: 1. That lie is now the owner, and entitled to the immediate possession of the following described property: one bay horse about twelve years old.

This was a Special Proceeding, tried before Waits, The case was before this court upon appeal at June Term,. 1875, and is fully reported in 73 N. C. Rep. 380.

' This was an appeal by the dofenlants and is a branch of of Wetherell and wife v. ■ • The defendant Whitaker tiled the following exceptions : 1. Because the actual rent, after the repairs, was charged, and not the amount for which the house would have rented without the repairs and before they were made. 2. Because the account was not taken upon the basis suggested in the first exception, and made to conform thereto in all other respects. 3.

PbtxtioN for a writ of habeas corpus, heard before this court at this term. All the facts necessary to an understanding of the ease are ■stated in the opinion of the court. “

Civil Action-, tried before Furches, J, at Fall Term, 1875, of the Superior Court of Alexander county. The complaint alleged: That Vandiver Teague, Sr., died in the county of Alexander in the month of March, 1872, leaving a last will and testament in which he appointed the defendants, William S. Teague and Moses Teague, his executors.

Civil ActioN for the recovery of damages, tried before Moon,and a jury, at December (Special) Term, 1875, of Halifax Superior Court.

'Special ProceediNG, beard upon appeal from the Probate Court, before his Honor, Judge Watte, at Chambers, in War-beN county, February 8th, 1873. 'The plaintiff filed a petition in the Probate Court, alleging; That Thomas A. Gfliolson Palmer died during the year 1840, leaving a will in writing, duly executed, to pass his whole estate, which was admitted to probate at February Term, 1841, of Warren County Court.

.. This was a. Controversy submitted without action, heard before Watts, J, at June Term, 1875, of the Superior Court of Wake counly, upon the following CASE AGREED: • John N. Bunting claims to recover from the Board of Commissioners of Wake county three hundred dollars, and the Board of Commissioners of Wake county-resists the claim. The following are the facts upon which the controversy depends : 1.

Motion; by defendant to have satisfaction of judgment entered of record, heard before his Honor Judge Seymour, at Fall Term, 1875, of Wilson Superior Court, upon the following CASE AGREED. 1.

<p>INDICTMENT for I a--ceny, tried before Buxton, J., and a jury, at Fall Term, 1875, of Anson Superior Court.</p> <p>The defendant was charged with the larceny of a growing crop.</p> <p>It was in evidence that in the latter part of the week before Fall Term, 1875, of Anson Superior Court, the prosecutor, Lewis Bicketts, missed a quantity of corn from his field, having been pulled from the stalks while standing. The defendant was in the employment of the prosecutor. Fresh tracks, apparently of a single person, were discovered in the field, leading from stalk to stalk, where the corn was missing. There was a fence between that portion of the prosecu-tor’s premises where the defendant lived, and the place where the corn was missing. The tracks both going and coming lead to this fence. On Monday of said term the defendant was arrested and the officer found under his bod about one and a half bushels of corn, apparently new corn. The officer carried the defendant to the prosecutor’s field whore the tracks were discovered.</p> <p>The State offered to prove by the officer that he compelled the defendant to put his foot in the track and that it corresponded therewith.</p> <p>To this evidence, the counsel for the defendant objected, because the prisoner was then under arrest and ought not to have been compelled to do anything calculated to criminate himself, the proposed evidence, partaking of the nature of a forced confession, ought to be excluded.</p> <p>The objection was overruled and the defendant excepted.</p> <p>There was a verdict of guilty and judgment accordingly. The defendant appealed.</p>

Civil ActioN on a bond, heard before Pchenck, J\ at Fall Term, 1875, of the Superior Court of Cababeus county. The complaint alleged : That George W. Patterson, the defendant, and one W. R. Denny, on the 5th day of November, 1862, covenanted under their hands and seals to pay the plaintiff, one day after date, the sum of two thousand dollars. That certain payments have been made thereon, (setting them out,) and that no other part thereof has been paid.

Civil ActioN tried before Señen cl The pleadings were oral, and the ease came up by appeal. from the judgment of a Justice of the Peace. The plaintiff sued the defendant, as the administrator of her mother, Susan Seaman, for one hundred and fifty dollars, for services rendered by her to her mother, during the last eighteen months of her life.

Civil AotioN, for damages, tried before Moore, ■!., at December (Special) Term, 1875, of Halifax Superior Court. The following are the facts agreed, and sent to this court as a part of the record, upon appeal.

This was a Motion for leave to issue execution, heard before Buxton, J., upon appeal from the ruling of the Clerk of the Superior Court of Cumberland county, Fall Term, 1876. The motion was refused, on the ground that the Clerk had •, no jurisdiction thereof, and his Honor sustained the ruling ; being of the opinion, that Bat. Rev., chap. 18, sec. 7, suspending the C. C. P., required such motion to be made after notice, in term. From this ruling the plaintiff-appealed.

Civil ActioN for an account, heard before Schench, J., at Fall Term, 1875, of the Superior Court of Cabaeeus county. The complaint alleges: That the plaintiff and the defendant entered into a copart-nership for the practice of the law in the county of Cabarrus, and by the terms thereof, the fees arising therefrom were to be equally divided between the plaintiff and the defendant.

This was a PetitioN lor an allowance for attornies’ fees, filed in this court at the present term. The petitioners, Merrimon, Fuller & Ashe, and Moore & Gatling, alleged: That Moore & Gatling appearing in behalf of the creditors of the late Thomas P. Devereux, the plaintiffs in this action instituted the action in the Superior Court of Halifax county, on the 25th day of January, 1870, praying to have the defendants, the only heirs at law of Thos. P..

This was a Civil ActioN, for damages, tried at the December (Special) Term, 1875, of Halifax Superior Court, before his Honor, Judge Moore, and a jury, upon the following CASE AGREED. “ The plaintiffs declared for damages to their land, for agri cultural purposes and otherwise, caused by water flooding over it, from the defendant’s canal. The land was valuable for. agricultural purposes.

This was a Picecrdirg STrfjhttcrtal to execution, heard before Moure. J., at Spring Term, 1875, of Pitt Superior Court, upon appeal from an order of the Probate Court. Two judgments were rendered against, the defendant and in favor of the plaintiff at Fall Term, 1874, amounting in the aggregate sums thereof, to about $1,000, which judgments were regularly docketed in the.

This was an Appeal from the ruling of the court in setting •■aside an order of arrest in a Civil Action in the nature of a Bill in Equity, for the specific performance of a contract; the motion to set aside the order was heard before Pójamele J. vat July Term, 1875, Cabaeeus Superior Court.

Orra, ActioN tried before Seymour. at July (Special) .Term, 1875, of Edgecombe Superior Court. • The facts of this case are substantially as follows : - ■ On the 5tli day of July, 1873, one Barnhill executed to tbe ; plaintiff a mortgage on his personal property and. crop,- to be made during-that'year - on the land of Alman Heart in said county, being indebted to the plaintiff in the sum of five hun-■dréd and'thirty-dollars, for' advances made to' him to enable Mm to plant…

This was an application, for an INjuNCtioN, to restrain the collection of certain taxes, heard by his Honor, Judge McKoy, at the Fall Term, 1875, of the Superior Court of New HaN-over county.

Civil AotioN for an Injunction, beard before Moore, J., at Pali Term, 1875, of the Superior Court of Beaotoet county. The action was brought by the plaintiff in his own behalf, and in behalf of all other tax payers, &c., to restrain the collection by the defendant, the Board of Commissioners of Beaufort county, of the excess of tax levied by the defendant over and above the amount allowed by law.

This was an application for an INJUNCTION, to restrain the defendants from collecting certain taxes, heard by Eure J. at Chambers, on the 19th day of November, 1875.

<p>The General Assembly has no right to confer upon the Governor, Treasurer and Auditor, the power to Value the tangible, real and personal property of a Railroad corporation; for such power is vested by the-Constitution in the Township Board of Trustees -alone, and cannot betaken from them.</p> <p>The franchise of a corporation is property; and the franchise of a rail! road corporation should be assessed for taxation separate and apart from its other property, and without taking such other property intcn consideration.</p> <p>A dividend of fifteen or twenty per cent, paid in Confederate-money, Is not such a dividend as was contemplated in the charter of the N. C. Railroad Company, in exempting the real estate of the company from taxation, until the dividend of profits of said company shall exceed six per cent.; nor is the six per cent, rent received from the-Richmond & Danville Railroad Company, such a dividend of profits.</p> <p>{Wil, Gol, & Aug. Bailro'ad Go. v. Oomm'rs of Brunmich, 72 N, C. Rep. 10; BicJimond & Danmlle Bailroacl Go. •». Oomm'rs of Orange, at this-term, cited and approved.)</p>

Civil Action) for a penalty, originally commencing in (lie Court of a Justice of the Peace, was carried, before his Honor, Judge MitoheU, at Chambers, in Catawba county, and heard 29th of May, 1875, upon the following CASE AGREED. “ This was an action of debt, brought by the plaintiff to recover the sum of four dollars from the defendant, for failing to work on Clark’s and Maiden’s creek, under the act of Assembly, passed at the session of 1873 — ’74, public laws, chap. 102,…

Civil ActioN, tried before Watts J. at Fall Term, 1875, qf tbe Superior Court of Wake county. Tbe complaint alleges substantially tbe following facts : That tbe plaintiffs, Gideon Perry, Joel Evans, Abram Nicbols, Hilliard Williams and Ed. Jones, are tbe trustees of tbe Second Baptist Cbureb of. tbe City of Ealeigb, duly elected according to tbe usage of said cburch.

PetitioN to rehear the case between the same parties, decided at the last term, and reported in 73 N. C. Rep., 310 ; in which report a full statement of all the facts of the case are set out. The grounds relied upon for a re-hearing are stated in the opinion of the court.

This was a Civil Actiok, for the recovery of damages, tried before Henry J. at December (Special) Term, 1875, of New IIawovee Superior Court. The complaint alleges : That the plaintiff is the administrator of the estate of Arnold Hardy, deceased.

Tiiis was a Contboveesy, submitted without action, to his Honor Judge Sohenok, at the Spring Term, 1875, of the Superior Court of MeokleNbubg county, and determined upon the following facts: Certain persons, citizens and residents of the city of Charlotte, who are tax payers, being advised that they are not subject to be taxed on account of debts and securities for money held by them, and lately demanded for the year 1875, having proposed to the Board of Aldermen of said…

This was a MotioN to vacate an injunction, heard before his Honor Judge McKay, at Chambers in New HaNOVER county on-of January, 1875. The plaintiff instituted an action against the defendants at Spring Term, 1874, of New Hanover Superior Court, in his complaint alleging: He is the owner of a tract of land in said county, on which there are about one hundred acres of very fertile swamp land, most of which is cleared and well adapted to cultivation.

Civil Actiok for the recovery of money only, originally institnted in a court of a Justice of the Peace, and carried thence on appeal to the Superior Court of Halifax county, where it was tried before Moore, J., at December (Special) Term, 1875. The action was brought to recover certain moneys paid by the plaintiffs on account of drafts drawn upon them by the defendant.

This was a Bill nr Equity, (under [the old system,) tried before McKay, J., at Ball Term, 1875, of the Superior Court of ONSlow county. The case was before this court at January Term, 1871, when certain issues were made up from the pleadings and ordered to be submitted to a jury. At January Term, 1874, the defendants moved this court to dismiss the bill on the ground that the court had not jurisdiction thereof. The case is reported in 70 N. C. Rep., 280.

This was a Spboial PbooeemNG, to enforce an agricultural lien under the statute, heard before Buxton, J., at Fall Term, 1875, of the Superior Court of RichmoND county. The proceeding was instituted before the Clerk of the Superior Court, no summons or other notice having been served upon the defendant.

Civir, ACTION, in the nature of Ejectment tried before Furches, J., at the Fall Term, 1875, of Iredell Superior Court.

Civil ActioN in the nature of a Bill in Equity, heard upon exceptions to the report of the Clerk of this court, to whom the ease was referred at the last (June) Term.