Volume 75 — North Carolina Reports

Petition for an Injunetiion, heard before Eure, J., at Chambers, in Pasquotank County, October 25th, 1876. The plaintiff, G. W. Cobb, suing in behalf of himself and the other tax-payers of the town of Elizabeth City, filed his ■complaint alleging substantially as follows 1.

Civil ActioN, tried before Moore, J., at May Term, 1876* of Edgecombe Superior Court. A jury being waived Ms Honor found the folowing facts: The plaintiff insured his life in the defendant company in the sum of $2,000, and held a policy for that amount, the continued obligation of which was dependent upon the regular annual payment to defendant of a premium of $54.40.

IndictmeNt for Rape, tried before Moore, J., at Spring Term, 1876, of Ed&ecombe Superior Court. A tales juror was drawn, and challenged for cause, by the' State. The juror swore that all of his real estate was under mortgage, but that he was in possession thereof. The prisoner insisted that the juror was a freeholder. The Court allowed the challenge upon the ground that the juror was not a freeholder. There was a verdict of guilty. Motion for a venire de novo.

<p>, INDICTMENT for an Assault, tried before Buxton, J., at the. Spring Term, 1876, of Moore Superior Court.</p> <p>The facts necessary to an understanding of the case as decided, are stated in the opinion of the Court.</p> <p>. There ivas a verdict of “ guilty,” and judgment thereupon. The defendant appealed.</p>

‘'Civil ActioN, originally commencing in the Court of a •Justice of the Peace, was thence carried by appeal to the Superior Court of Hertford County, where it was tried before, his Honor, Judge Moore, at Spring-Term, 1876. On the trial in the Court below, before the jury was em-pannelled, the defendant ashed leave to add the plea of the Statute of Limitations to the defence set up in the Justice’s Court, which being refused, the defendant excepted.

Civil ActioN, ¡on a money demand, commenced by summons, and tried before Eure, J.,.atthe February Term, 1876, •of Pasquotank Superior Court. The summons in this case was issued against both defendants on the 9th day of June, 1875; .and on the same day, proceedings were had before the Cleric of the Court, in respect to issuing an .attachment against the defendant, K. E. !Cobb, founded on the following affidavit! “ Wm.

INDICTMENT for an attempt io- commit burglary, tried before Moore, J., at December (Special) Term, 1875, of Halifax Superior Court.' The bill of indictment charges that the defendant “ did attempt to commit an offence prohibited by law, to wit: did feloniously, burglariously, maliciously and secretly attempt to break and enter the dwelling house of one Spier Whitaker, there situate, in the night time of the day aforesaid,, by being then and there in the porch of said…

Civil Action in the nature of Ejectment, tried before before Moore, J., at Spring Term, 1876, Beaufort Superior Court. The facts necessary to an understanding of the case as decided, are fully stated in the opinion of the Court. There was a verdict and judgment for the plaintiff, whereupon the defendant appealed.

Civil Action, tried before Schenck, J., at Spring Term, 1876, of Mecklenburg Superior Court. The case was before this Court at June Term, 1874, and is reported in 71 N. C. Rep. 356. The case was heard at this term upon the following CASE AGREED Í It was in evidence that John PI. Sloan, one of the original plaintiffs, died since the commencement of this action and the case was prosecuted in the name of A. M. Sloan, surviving partner.

<p>'When infant defendants, in a civil action or special proceeding, liave lit) general or testamentary guardian, before a guardian ad litem can be appointed, a summons must be served upon such infants, and a copy of the complaint also be served or filed according to law. After the guardian ad litem is thus appointed in a special proceeding, a copy of the complaint, with the summons, must be served on such guardian.</p> <p>•An administrator filed his ¡petition to sell the lands of his intestate for assets, and had the widow appointed guardian ad litem, before the infants were in court by the service of any summons upon them; the widow answered for such infants only, and not in her own right — the attorney for the petitioning administrator drafting and filing her answer ; a decree was obtained, and under it the lands were sold. Afterwards the widow became apprized of facts which constituted her equitable right to one of the tracts of land sold under said decree, and she thereupon moved in the cause still pending, to set aside the decree and sale: Held, that the decree thus obtained was irregular, and not binding either upon ■the infants'Or widow., and .that the sale 'Under such decree should be set aside.</p> <p>(■The cases of Allen v. Shields, VS N. C. Rep. 504; and Wolfe v Davis, 74 .N. C. Rep. 597, cited and approved. White v. Albertson, 3 Dev. 841, cited ■and distinguished from this, and approved.)</p>

Civil ActioN upon a bond, tried before Kerr, J., at Spring Term, 1876, of Alamance Superior Court. The defendants relied upon the plea of usury, the bond bearing interest at 8 per cent, upon its face, and not setting forth that the consideration thereof was money loaned. The Court rendered judgment in favor of the plaintiff for the amount of the bond, with interest from the date of the judgment until paid. From this judgment the plaintiff appealed.

Civil Action, upon a bond, heard before his Honor, Judge ScheNck, at Spring Term, 1876, of Mecklenburg Superior Court. The plaintiff moved for judgment upon the ground that the answer filed was frivolous and irrelevant. The facts necessary to an understanding of the case are substantially stated in the opinion of the Court. The motion was overruled and th% plaintiff appealed.

Civil Action, for the claim and delivery of personal property, tried before Furches, J., at Spring Term, 1876, of Wilices Superior Court. The plaintiff was the executor of Lewis Barker, deceased, and the defendant was his widow. It was in evidence that the testator of the plaintiff died on the 27th of July, 1874, possessed of the property, the subject of this action.

<p>A borrowed oí B a süm of money for the purpose of paying for a lot, the title to which was ma'de to A and his wife. In action against A for the the money borrowed: Held, that the money so borrowed was no lien on the lot so purchased, and that A was entitled to his homestead therein.</p> <p>{The case of Whitaker v. Elliott, 73 ISP. C. .Rep. 186, cited, distinguished from this, and approved.)</p>

This was a Civil ActioN, to recover damages for negligence, tried by his Honor, Judge Moore, at the Spring Term, 1876, of Edgecombe Superior Court.

IndictmeNt, for Murder, tried before Watts, J., at Spring-Term, 1876, of Madison Superior Court. There was a verdict of “guilt}*-,” whereupon the prisoner moved in arrest of judgment. The motion was overruled, and judgment pronounced, and the prisoner appealed. The other facts necessary to an understanding of the case, as decided in this Court, are found in the opinion of Justice Bynum.

Civil Action tried before Eure, J., at February Term, 1876, of WASHINGTON Superior Court. The action was brought to recover a balance alleged to be due upon a bond, secured by a deed in trust upon certain real property, executed by B. D. Bunnell to the plaintiff and to subject a store house, a part of the property conveyed by the deed in trust, which had been removed from the premises to the payment of said balance.

This was an action of Ejectment instituted prior to the adoption of the C. C. P., and tried before Buxton, J., at Spring Term, 1876, of the Superior Court of Montgomeey County. The record is voluminous, the declaration containing many counts, and a great deal of evidence was introduced. The facts necessary to an understanding of the case as decided are stated in the opinion of the Court. There was a verdict and judgment in favor of the plaintiff, and the defendant appealed.

Civil Action, -originally commenced by Crawley, tried oh ■a motion in the cause, before Judge Kerr at Fall Term, 3875, of Randolph Superior Court. The Court permitted, on a proper cause shown, Crawley, he testator of the plaintiff, to sue in forma pauperis. After the action had been pending in Court for several terms, it was submitted to referees.

Civil Action -Trespass on the case, brought before the enactment of the- Code of Civil Procedure, and tried before his Honor, Judge--, at-Term, 187-, of the Superior Court of Rowan County.

Civil ActioN for Divorce and Alimony, heard upon motion of the plaintiff that she be allowed alimony pendente litet before Cloud, J., at Spring Term, 1876, of Rowan Superior Court.

Indictment, for an Assault, with, intent to kill, tried before Kerr, J., at Spring Term, 1876, of Randolph Superior Court. At the conclusion of the evidence, his Honor remarked that he would hear but one of the prisoner’s counsel, he being represented by three.

Civil Action, tried before Mooee, J., at November (Special) Term, 1875, of Halifax Superior Court. The cause was heard in this Court Upon the following CASE AGEEED Í This action was instituted in a Court of a Justice of the Peace to recover the value of a bale of cotton alleged to have been converted to his own use by the defendant. The plaintiff claimed title to the property under a mortgage executed to him by Wesley Thorne and Turner Thorne.

Civil ActioN, tried before Furches, J:, at Spring Term,. 1876, of Alleghany Superior Court. The complaint alleges substantially the following facts .- That the plaintiff is the owner of the locus in quo, consisting of about five hundred acres of land. Said land was sold under execution against one Archibald Edwards, who was the owner thereof at the time of said sale, and was purchased by the plaintiff.

Civil ActioN, tried before Kebr, J., at Spring Term, 1876, 'of Wilson Superior Court, upon exceptions by the plaintiffs-to the report of the referee, to whom the case had been referred under the provisions of the Code of Civil Procedure.

Civil Action in the nature of Ejectment, tried before Furches, J., at Spring Term, 1876, of AlexaNder Superior Court* The plaintiffs are the children and heirs at law of Hannah Marley, who was the wife of John Marley and the daughter of Jehu Barnes. Barnes was in possession of the locus in quo at the time of his death, which occurred in 1820 or 1821.

Case Agreed, heard before Heery, J., at Spring Term, 1876, of Granville Superior Court. On the 2nd day of October, 1872, the late Calvin Betts was Clerk of the Superior Court of Granville County, and the defendants were sureties upon his bond, executed to secure the faithful performance of his duty as Clerk as aforesaid.

This was a Motion to the Court, in the cause heretofore dismissed at the instance of the appellee for want of an appeal bond. The facts pertinent to the point decided are fully set ou.t in the opinion of Justice RodmaN.

T-his was a Petition to re-bear the same cause, between the same parties, heretofore decided in this Court, to-wit.: at January Term, 1875. The grounds upon which a re-hearing ¡is now asked will he found in the opinion delivered by -Justice Bynum ; and the ■facts of the case are fully stated in the report of the same in 7.2 N. C. Rep., 536.

Indictment, for Murder, tried before Moore, J., at Spring Term, 1876, of Bertie Superior Court. The facts, necessary to an understanding of the case, are stated in the opinion of the Court. There was a verdict of guilty, and judgment thereupon. The prisoner appealed.

Civil ActioN to surcharge and falsify an account, tried before Kerr, J., at Spring Term, 1876, of WilsoN Superior Court. The facts necessary to an understanding of the case as decided are fully stated in the opinion of the Court. There was judgment for the plaintiffs, and; the- defendants appealed.

Civil Action, upon a bond, tried before McKay, J., at Fall Term, 1875, of Carteret Superior Court. The husband of the defendant was indebted to the plaintiff in 1862, in the sum of $2,500, for which he gave his note. The defendant joined him in giving a mortgage upon certain property, represented as her separate property, to secure the payment of the note. The mortgaged property really belonged to the mother of the defendant.

This was a Civil ActioN on contract, tried at the January Term, 1876, of Cumberland -Superior Court, before his Honor, Judge Buxton.

MotioN heard before his Honor, Judge Kerr, at Fall Term, .1875, of RockiNGHAm Superior Court. The motion was made in behalf of W. W. Pegram, who was a witness for the State in the case of the State v. John W. Thomas. An indictment for perjury was found against the defendant at Fall Term, 1869, # of Guilford Superior Court, and the cause was removed to Rockingham for trial. W. B. March was, by order of the Court, endorsed upon the hill as prosecutor.

INDICTMENT, for Larceny and receiving stolen goods, tried before Cloud, J., at Spring Term, 1876, of Forsyth Superior Court. At the preceding term, the defendant was put upon trial upon the same bill of indictment, and the jury failing to agree upon a verdict, his Honor ordered a juror to he withdrawn and a mistrial entered, and remanded the prisoner.

Civil ActioN in the nature of Ejectment, tried before Furches, J., at Spring Term, 1876, of Ashe Superior Court. At Fail Term, 1875, the death of the original plaintiff was suggested, and the heirs at law were made parties plaintiff. The only question considered in this Court was the construction of a deed, under which the plaintiffs claim by mense conveyance.

<p>INDICTMENT for Burglary, tried before Buxton, J., at Spring Term, 1876, of Cumberland Superior “Court.</p> <p>The prisoner’s counsel requested the Court to charge the-jury : “ That according to the evidence, they should in no-event convict the prisoner of the crime of burglary, for the reason that the store-house was not a dwelling house in the-sense contemplated by the law relating to burglary; nor was it a dwelling house of John Davis, for he did not occupy it himself. Nor was it occupied by his clerk or servant, or by any member of his family or household, but merely by a person employed to sleep there, to watch the premises and goods.”</p> <p>His Honor declined the instruction, and charged the jury “ If you believe from the evidence that John Davis, the' prosecutor, had partitioned off a little room in his store for a sleeping room ; had put a bed in there and fitted it up for a sleeping apartment, and had employed John A. Lamb to sleep there for the sole purpose of protection to the premises and goods, and that he had slept there for a month for that purpose only; and that the little room had been regularly as a sleeping room for that purpose only for four years by John Davis or others employed by him for that purpose; then in the eye of the law the store-house was a dwelling house, in reference to which the capital crime of burglary could be committed ; and it was a dwelling house of John Davis, although John Á. Lamb was not his clerk, nor servant, nor a member of his family or household, ©r in any way connected with him except as an employee, employed by him to sleep there as a guard, for the protection of the premises and goods.”</p> <p>To the refusal of his Honor to charge as requested, and to the charge of his Honor, the prisoner excepted.</p> <p>There was a verdict of “guilty,” and thereupon the prisoner moved for a new trial and venire de novo. Rule discharged. Judgment, and appeal by prisoner.</p>

Civil Actiost, to recover damages, tried before Moore, J., at May Term, 1876, of Edgecombe Superior Court. ■In March, 1867, the intestate of the defendant converted, to his own use, a quantity of fodder, the property of the plaintiff. The -defendant relied upon the Statute of Limitations as a defence to the action. The summons was issued December 30th, 1872.

Indictment for an Assault and Battery, tried before Moore,, J., at Spring Term, 1876,. of Martin Superior Court. The defendants and the prosecutrix were members of a, benevolent society in Hamiton, N. C;, known as the “ Good Samaritans,” which Society had certain rules and ceremonies known as the ceremonies of initiation' into and expulsion from the Society.

<p>The Governor, under sec. 14, Art. IV, of the Constitution, can require a Judge of the Superior Court to hold a term of the court in a county not within his own district. And when the Governor so authorizes and empowers a Judge to hold such court, expressing in the commission that it is done with his consent, and under that authority, the Judge holds the court, as between the Judge and the suitors in the court, the consent .and authority granted by the Governor is equivalent to a command.</p> <p>(The case of Myers v. Hamilton, 65 N. C. Bep., 567, cited and commented on.)</p>

Appeal by the State from the ruling of the Superior Court of GRANVILLE County, at Spring Term, 1876, his; Honor Judge Watts presiding, upon a motion, to quash a Peace Warrant.

Ikdictment, under the statute, for cheating by false tokens, tried before Buxton, J., at Fall Term, 1875, of Cumberland Superior Court.

MotioN to vacate an attachment, heard before Buxton, J., at Spring Term, 1876, of Montgomery Superior Court. The Board of Commissioners of Montgomery County commenced an action against the defendant, Peter C. Riley, former sheriff of said county, upon his official bond to recover the sum of $2,500, the amount of county and poor taxes collected for the year 1868, which it was alleged he had failed to account for and pay over.

<p>A made Ms promissory note payable to B or bearer, as the consideration for the purchase of a tract of land; subsequently the contract as to the sale of the land was rescinded, A giving up B’s bond for title, and B returning a paper, purporting to bo the note for the purchase of said land, • to A, and which A at once destroyed; the paper returned by B to A was not the note B said it was, and, at the time, A believed it to be; afterwards B deposited the said note given by A as above set forth with one 0, as collateral security, C having no notice of the recission of the contract concerning the sale of the land. In an action by C against A, to recover the amount due upon the note: It was held, that when Agave up to B, his, B’s bond to make title to said land, and B gave up to A a paper purporting to be his note, which he destroyed, the liability of A on said note was as much discharged as if he had paid it in money; and further, that C was not entitled to recover in this action.</p> <p>{Thigpen v. Home, 1 Ired. Eq., 20; Lindsey v. Wilson, 2 Dev. & Bat. Eq., 83; Moody v. Susson, 2 Ired. Eq., 382; Kingv. Lindsey, S Ired. Eq. 77, and 7 Ired. Eq., 70, cited and approved.)</p>

<p>Summary Proceeding, in the nature of Ejectment, under the Landlord and Tenact Act, heard before Buxton, J., at Spring Term, 1876, of UnioN Superior Court, upon appeal from a Court of a Justice of the Peace.</p> <p>The facts necessary to an understanding of the case as decided are stated in the opinion of the Court.</p> <p>There was judgment for the plaintiff and the defendant appealed.</p>

MotioN heard before BuxtoN, J., at Spring Term, 1876, of Union Superior Court. The facts necessary to an understanding of the case are fully stated in the opinion of the Court. The motion was overruled and the plaintiffs appealed.

MotioN, in the cause heard before Schenck, J., at Fall Term, 1875, of Mecklenburg Superior Court. The record upon appeal discloses the following CASE AGREED : James H. Davis, late of Mecklenburg County, died in the year 1867, intestate, and at October Term of said year the defendant administered upon his estate.

Civil ActioN, .tried before CANNON, J., at Spring Term, 1876, of Haywood Superior Court. The action was brought upon a bond given by J. R. Love to J. C. Palmer, dated June 5th, 1865. Upon the-trial the. plaintiff offered to prove the consideration of the note, and its value by parol testimony. The Court received the evidence and the defendants excepted.

Motion heard before Kerr, J., at Spring Term, 1876, of Wilson Superior Court. The motion was based upon the following affidavits ■: W. T. Dortch maketh oath, ***** That this affiant was retained as attorney for said Petway, and entered the words “time to plead for Adm.” That afterwards these words were stricken out, and “judgment” written over them without the consent of this affiant.

Civil Action for Divorce, tried before Schenck, J., at August Term, 1875, of Mecklenburg Superior Court. The complaint substantially alleged : That the plaintiff and defendant were residents of Meck-lenburg County. That they were legally married and lived together as man and wife until the 27th of July, 1873, when the- plaintiff quit ihe bed and board of the defendant.

This was a Civil ActioN, to recover a penalty upon the •official bond of the Register of Deeds, tried before -his Honor, Judge Furches, at the Fall Term, 1875, of Ashe Superior Court. The plaintiff alleged in his complaint, that the defendant Ray is the Register of Deeds in and for the County of Ashe, and that the other defendants are the sureties on his official bond, in the penal sum of five thousand dollars.

Civil Action, upon a promissory note, tried before Cloud, J., at Spring Term, 1876, of Davie Superior Court. All the facts necessary to an understanding of the case, as decided in this Court, are stated in the opinion delivered by Justice Bynum. There was a verdict for the plaintiff, and the defendant appealed.

Indictment for an Assault and Battery, tried before Fukches, J., at Spring Term, 1876, of Wilkes Superior Court. The facts necessary to an understanding of the case are stated‘in the opinion of the Court. There was a verdict of guilty. Rule for a new trial. Rule discharged. Judgment was pronounced and the defendant appealed.

, presiding, construing the last will and testament of W. U. Davenport, deceased.

Civil Action, originally brought to subject land to the payment of debts, tried before Eure, J., at Spring Term, 1876, of PasquotANK Superior Court. The facts of the case have been heretofore fully set out in the several reports thereof, to be found in the 68 N. C. Rep., 316; 71 N. C. Rep., 66; and 73 N. C. Rep., 157.

Summary Proceeding in Ejectment, under the Landlord and Tenant Act, tried before BuxtoN, J., at Spring Term, 187G, of Montgomery Superior Court, upon appeal from a Court of a Justice of the Peace. The affidavit of a tenancy and holding over was made by the plaintiff, who claims the possession of the premises as the assignee of P. 0. Riley. The affidavit was made January 20th, 1876, and the term of the defendant was alleged to have expired December 31st, 1875.

<p>Civil Actiok, to recover two acres of land, tried before Seymour, J., at the January Term, 1876, of the Superior Court of WayNE County.</p> <p>All the facts pertinent to the case, as decided in this Court, are fully set out in the opinion of Justice Rodman.</p> <p>On the trial in the Court below, his Honor refused to receive certain evidence (detailed in the opinion of the Court) •offered by the defendant, and gave judgment absolutely for the plaintiff. ,</p> <p>From this judgment defendant appealed.</p>

Civil ActiON tried before Kerb,, J., at the Spring Term, 1876, of Alamance Superior Court.

This was a Special Proceeding originally commenced in the Probate Court and transferred to the Superior Court of Jones County, where it was tried before Seymour, J., at Spring Term, 1876. The following issue was submitted to the jury : “ Did Council Gooding endorse the note mentioned in the proceedings ?” All other facts necessary to an understanding of the case are stated in the opinion of the Court.

<p>Owners of executory bequests and other contingent interests cannot re cover damages for waste already committed. They are entitled, however, to have their interest protected from threatened waste or destruc tion by injunctive relief.</p> <p>{Braswell v. Moreheacl, Bush. Eq., S3 ; DoutJiet v. Bodenhammer, 4 Jones Eq., 444 ; Watson v. Watson, 3 Jones Eq., 400, cited and approved.)</p>

Petition for Partition, tried before Sci-ienck, J., at Spring Term, 1876, of the Superior Court of Richmond. The facts necessary to an understanding of the case are stated in the opinion of the Court. There was judgment for the plaintiff, and the defendants appealed.

INDICTMENT for Murder, tried before Moore, J., at Fall Term, 1875, of Beaufort Superior Court. The bill was found in Edgecombe Superior Court and the ■cause was thence removed to Beaufort County. Upon the trial the State offered in eviden'ce the declarations of Nathan Grimes, the deceased, made in the presence of the defendant. The counsel for the defendant objected. The declarations offered in evidence were made on the morning of November 1st, 1874.

<p>A andB agreed that A was to place in the possession of B a hog; that the hog was to be fattened by B, and the meat equally divided between them, when the hog was killed. Upon the trial of an indictment for the larceny of the hog: It was held, (1.) That the agreement constituted a bailment to B, the bailee, to have the exclusive possession until the hog was killed; and (2.) That the property was well charged in the bill of indictment, as the property of B.</p>

MotioN in the cause, heard before Schence, J., at Spring Term, 1S76, of Meciclenburg Superior Court. The defendant was convicted upon an indictment for murder at Spring Term, 1875, and sentenced to be hanged. From that judgment he appealed to this Court, where the judgment was affirmed. Subsequently the defendant was pardoned. Thereupon a capias was issued, and the defendant appeared in Court and moved the Court that he be-discharged.

PetitioN for an Injunction, heard before Seymour, J., at Fall Term, 1874, of the Superior Court of Greene County. The facts necessary to an understanding of the case as decided, are fully stated in the opinion of Justice RodmaN. Upon the hearing, the Court below rendered judgment, dissolving the injunction, whereupon the plaintiffs appealed.

<p>The declarations of an alleged conspirator, made in the absence of his co-conspirators, after the transaction, are not competent evidence against any one, except the party making such declarations.</p>

This wa-s'a Proceeding in Bastardy, heard before Watts, J., at Spring Term, 1878, of Johnston Superior Court. The facts in the case are fully stated in the opinion of the Court. There was judgment against the defendant, and 'thereupon he appealed.

Case Agrees, hoard before Cloud, J., at Fall Term, 1875, of YadkiN Superior Court. The following are the facts: Jamos A. Claywell, James L. Blackwell and William Masten entered into partnership for the purpose of merchandizing in the town of Wilkes-boro’ in 1853, for the term of three years. They continued in business only two years, when they eeased to transact business under the written articles of eo-partnership.

Civil Action tried before Watts, J., at Spring Term, 1876, of Nash Superior Court. The action was instituted to recover damages for a breach of contract. The plaintiff alleged: That the defendant employed him on the 29th of December, 1874, to clerk in his store during the year 1875, for the sum of $25 per month. That he entered upon the discharge of his duties as clerk on the 6th day of January, 1875.

at Spring Term, 1876, of Montgomery Superior Court. The plaintiff is the administrator of Thomas Stokes, who died intestate in 1874. Proceedings were regularly instituted in the Probate Court for the sale of the intestate’s land to make assets, and the plaintiff was directed by the Court to sell said land upon a credit.

This was a Criminal Action, commencing in a Justice Court, and thence carried by appeal to the Superior Court of Ashe County, where it was tried by his Honor, Judge Eurches, at Spring Term, 1876.

<p>Civil Action tried before Seymour, J., at Spring Term, 1875, of Lenoir Superior Court.</p> <p>The action was instituted for the purpose of having the défendant declared a trustee of certain lands, for the benefit of the plaintiffs. There was evidence tending to show that the land was purchased at a sale, under execution against the plaintiff by Council Wooten in 1867, and was in January, 1872, sold by Wooten to the defendant for the sum of $800, of which $200 was paid in cash and three notes given for the balance, to-wit: one for $300, one for $150, payable on the 1st day of January, 1873, and another for $150, payable January 1st, 1874. All of these notes were paid by the defendant before the commencement of this action.</p> <p>There was also evidence tending to prove that the defendant bought the land in consequence of an agreement to the effect that?he should buy the land from Wooten in order to befriend Davis, and that when Davis repaid the purchase money, the defendant was to convey the land to the feme plaintiff and her children.</p> <p>Evidence was offered on behalf of the 'defendant, tending to prove that there was no such agreement.</p> <p>The following issue was submitted to the jury: Did the defendant purchase the land described in the pleadings, in trust for the wife of the plaintiff, Thomas, and her children ?.</p> <p>To this the jury responded in the negative.</p> <p>Upon the argument one of the counsel for the plaintiffs stated that a witness’for defendant, one B. F. Sutton*, had testified as to the terms of the contract, according to< their views of the same. The counsel for the defendant interrupted him and stated that he was misrepresenting the testimony. Upon reference to his notes his Honor found, that the witness had testified as stated by the defendant’s counsel, and so stated. The counsel for the-plaintiff insisted' that his view of the testimony was correct, and that he unsupported by his associates. Thereupon his Honor recalled the witness and examined him himself upon the point: in question, taking down his testimony verbatim, and read the same to the witness, in order' that he might correct it if erroneous. The counsel for the plaintiff aga-in resumed his argument, and insisted that the witness had given the same evidence when recalled as he had claimed that he had given, and proceeded to state what he had at first claimed to be the testimony, and then what he claimed to have been his testimony when recalled. The Court being of the opinion that the counsel had given an incorrect statement of what the witness had said upon being recalled, interrupted him and so stated, and read the evidence of the witness to the jury. Counsel for the-plaintiff insisted that he had a right to.argue'to the jury his vefsi'on of the' la’st statement of the witness,- and that what the Witness- testified’ Was a mattéí for the jury. The Court held that th'e' c’ótfnsel cOuld not further'argu'e1 the' matter to the jury nor contend before' them' that" the witness' when recalled had made a different statement from that which his Honor h&d reduced to writing. The counsel excepted.</p> <p>Concerning the testimony of this' w'itaebs- his Honor' ■charged the jury : That while it was the duty of the Judge' ■■to narrate to them the evidence, they Were not bound by his .-statement of it, but were sole judges of What was the testimony.</p> <p>Upon the verdict of the jur}r the Court rendered judgment ¡for the defendants and the plaintiffs appealed.</p>

<p>The general words of the Amnesty Acts of 1872 and -1874 include the hand of outlaws, known as the “ Lowery hand.”</p> <p>The prisoner, who was a member of that hand, was convicted and sentenced to he hung in 1870; while the cause was pending upon appeal in ;this Court, he made his escape. Upon the hearing of the appeal, this Court decided there was no error on the trial below; and in 3875, the prisoner was brought to the bar of the court below, and judgment was prayed in accordance with the decision of this Court. Thereupon the prisoner moved the court that he be discharged, upon the ground that he had been granted amnesty and pardon by the General Assembly: Held, that the effect of the appeal was to vacate the sentence pronounced in 1870; and that the decision of this Court was no.t a sentence or judgment, but simply an order to the court below to proceed to sentence and judgment; and that therefore the prisoner was entitled to Ms discharge.</p> <p>IndictmeNt for Murder, tried before McKay, J., at Fall Term, 1875, of Columbus Superior Court.</p> <p>The case was before this Court at June Term, 3870, and is reported in 64 N. C. Rep.</p> <p>At Fall Term, 1875, in pursuance of the decision of this Court, the prisoner was again brought to the bar of the Court and. the Solicitor prayed the judgment of the Court. Upon being asked by the Court what he had to say why sentence of death should not be pronounced against him,, the prisoner, through his counsel, answered that amnesty, and pardon had been granted him by an Act of the General Assembly of North Car, lina, ratified the 8th day of December, 1874, and prayed the Court that he might be discharged. The Court refused the motion, and the prisoner-appealed.</p>

Civil ActioN, tried before Furches, J., at Fall Term, 1875, of Wilkes Superior Court, upon appeal from a Justice's Court. The facts necessary to an understanding of the case as decided are stated in the opinion of the Court. There was a verdict and judgment for the plaintiff and the defendant appealed.

This was a Civil Action, for the recovery of the value of certain cotton seed, tried before Euke, J., at Fall Term, 1875, of Chowan Superior Court. The following are substantially the facts as contained in the statement of the case accompanying the record : The defendants rented of the plaintiffs, for “ the full term of two years ” from and after the 1st day of January, 1874, “Strawberry Hill” farm, at $1,200 a year.

PROCEEDING in Bastardy tried before Watts, J., at Spring Term, 1876, of Johnson Superior Court. The defendant was recognised to appear at Spring Term, 1876, When he moved the Court to quash the proceeding, and in support of the motion introduced evidence showing that at the time of the birth of the child the prosecutrix was a married woman. The Court allowed the motion and the State appealed.

Case Agreed, heard before Cannon, J., at Spring Term 1875, of Jackson County. The following are the facts: In 1872, one Bagless Henderson was indicted for murder in the County of Macon, and committed to the jail of said county. Upon the affidavit of the prisoner, the cause was removed to the County of Jackson, and the Sheriff of Macon County was ordered to deliver the prisoner into the custody of the Sheriff of said county.

CONTROVERSY submitted without action, to his Honor, Judge Eure, at the Fall Term, 1875, of Chowan Superior Court, upon the following CASE AGREEDC At the Fall Term, 1861, of Chowan Superior Court, judgment was rendered against Hudgins, the intestate of the defendant, for #506.63, with interest from January, 1860.

This was an Indictment for an Assault and Battery, tried before his Honor, Judge Moore, at the Spring Term, 1876, of the Superior Court of Pitt County. On the trial below, the jury returned the following special verdict, to-wit: (1.) That the¡ defendant did arrest the prosecutor, Robert Starkey, and against his consent put him in the “ lock-up,” at Marlboro*, and released him as soon as he became sober.

Civil ActioN, tried before Seymoue, J., at January Term, 1876, of WayNE Superior Court. The action is brought against the administrator of Coley on a note made by B. T. Bardin, as principal, and by Coley and another, who is now dead, as his sureties. The note was payable to the guardian of the plaintiff, who is now dead, and was assigned by the guardian to the plaintiff after lie came of age.

Indictment for Larceny, tried before Schenck, J., at Spring Term, 1876, of Anson Superior Court. The case was decided upon appeal in this Court at January Term, 1876, and is reported in 74 N. 0. Rep. The cause coming on to be heard upon the certificate of this Court, at Spring Term, 1876, the prisoner’s counsel moved the Court to arrest the judgment upon the ground that his Honor Judge Schencio had no authority to hold that term of the Court.

This was an Indictment for Larceny, tried before his Honor, Judge 'Cannon, at the Spring Term, 1876, of the Superior Court of Jackson County. The defendant was charged with stealing a bill of the fractional currency of the government of the value of fifty cents, the indictment concluding at common law;, and not against the statute.

Civil’Action, tried before bis Honor, Judge Watts and a jury, at Fall Term, 1875, of Warren Superior Court. The necessary facts to an understanding of the case as-decided, are stated in the opinion of the Court. There was a verdict and judgment in favor of the plaintiffs, and the defendants appealed.

This was a Civil Action, for the recovery of land, tried in the Superior Court of Cumberland County, at Spring-Term, 1876, before his Honor, Judge Buxton. The case was decided in this Court, upon only one of the exceptions taken by the appellants in the Court below, where it was heard fully upon its merits; and the facts pertinent to the point decided here, are fully stated in the opinion of the Court.

Civil Action, tried before Watts, J., at January Term, 1876, of Wake Superior Court.

Civil ActioN, heard before Watts, J., at January Term, 1876, of Wake Superior Court. The facts are substantially the same as in the preceding case between the same parties. There was judgment in favor of the plaintiff according to the prayer of the complaint, and the defendant appealed.

Ciyil Action, tried before Watts, J., at January Term., 1876, of Wake Superior Court. The points raised by this case were decided in the case of W. H. & R. S. TucJcer v. 1 he Oity of Raleigh, ante. There was judgment in favor of the plaintiff, and the defendant appealed.

Civil Action, tried before Watts, J., at January Term, 1876, of Wake Superior Court. The same points were involved in the case of Tuclcer v. The Oity of Raleigh, ante. There was judgment in favor of the plaintiff, according to the prayer of the complaint, and the defendant appealed.

<p>INDICTMENT for Manslaughter, tried before Moore, J., at January Term, 1876, of Edgecombe Superior Court.</p> <p>The facts, necessary to an understanding of the case, as-decided, are fully set out in the opinion of the Court.</p> <p>There was a verdict of guilty, and judgment thereupon.. The prisoner appealed.</p>

Indictmemt, for a Misdemeanor', tried at Spring Term, 1876, of Cumberland Superior Court, before his Honor, Judge Buxton, and a jury. Upon the trial in the Court below, the jury returned the following special verdict, to-wit: 1.

Motion in the cause heard before Eure, J., at Spring Term, 1875, of Perquimans Superior Court. The defendants moved to set aside a judgment theretofore rendered against them. The defendants resided in the City of Charlotte, and the plaintiff resided in Perquimans County. When the action commenced, but before the trial of the cause, he had removed to Hertford county, where he now resides.

<p>Civil Action, tried before Moore, J., at Spring Term, 1876, of Pitt Superior -Court.</p> <p>The action was brought to recover upon certain promissory notes. The record sets out the evidence in the cause, but it is not necessary to an understanding of the case, as decided, that the same should be stated.</p> <p>The following issue was submitted to the jury.: •“ Have the notes sued on been paid ?”</p> <p>Counsel for the defendant insisted that, as the defendant had to maintain the affirmative of this issue, he was entitled to open and close the argument. The Court ruled otherwise, and the defendant excepted.</p> <p>His Honor charged the jury : “ That both the witnesses were gentlemen, and that it was a pure matter of memory. That it was the duty of the defendant to make out the fact of payment.”</p> <p>There was a verdict and judgment in favor of the plaintiff, and the defendant appealed.</p>

This was a Civil Action heard before Cloud, J., at Cham - Tiers, in Forsythe County, on .the 24th day of May, 1876. The summons was issued on the 12th day of May, 1876, returnable to the Superior Court of Rowan County. On that day the-plaintiff 'filed an affidavit substantially as follows : 1. That the defendant is a corporate body duly created -under an Act of the General Assembly of North Carolina. 2.

■ Civil ActioN, in the nature of Ejectment, tried before BuxtoN, J., at Spring Term, 1876, of LINCOLN Superior Court. The plaintiff filed a complaint in the ordinary form against the defendants to recover the possession of the locus in quo.

PROCEEDING in Bastardy, tried before Moore, J., at Spring Term, 1876, of Martin Superior Court. The defendant offered to prove that just nine months prior to the birth of the child, the prosecutrix had illicit intercourse with another man, and that on one occasion about that time they were caught in the act. The State objecting to the evidence, it was ruled out by the court, and the defendant excepted.

INDictment, for Forgery, tried beforejSEYMOTJR, J., at Spring Term, 1876, of Craven Superior Court, having been removed from the Superior Court of Jones County. The facts necessary to an understanding of the case, as decided, are fully stated in the opinion of the Court. There was a verdict of guilty and judgment thereupon, and. the prisoner appealed.

Civil Action, tried before Cannon, J., at Fall Term, 1875, of the Superior Court of Transylvania County. The facts pertinent to the decision of this Court are set out in the opinion of Justice Rodman. There was judgment for the defendant, and the plaintiff appealed.

Civil ActioN, tried before Henry, J., at Spring Term, 1876, of MoDowell Superior Court. The case is this: Plaintiffs bought of defendant a tract of land on time, executed notes for the purchase money, and took bond for title.

Ikdictment, for Lwrceny, tried before Cloud, J., at Spring Term, 1876, of-Davie Superior Court. On the trial below, the State introduced one Gus. Hairs-ton, the prosecutor, who upon cross-examination was asked if he had not taken out a warrant before a Justice of the Peace, and had not had two jury trials as to the ownership of the pig, which was alleged to have been stolen. He replied in the affirmative.

This was a Civil Action for an account and settlement, tried before Kerr, J., at the Spring Term, 1876, of the Superior Court of Caswell County, upon complaint and demurrer. . The facts of the case are found in the pleadings, which, are fully set out under the direction of Justice Rodman.

Civil Action, upon a special contract, with a count in the nature of a quantum valebat, tried before Schenck, J., at Spring Term, 1876, of Mecklenburg Superior Court. The plaintiff ought to recover of the defendant $462.80 for a lot of castings, upon a special contract, with a count in the nature of a quantum valebat, under the suggestion of this Court, in a former report of the case. See 70 N. C. Rep., 559.

This was a Civil Action, in the nature of a quo warranto, tried before his Honor, Judge Buxton, at the Spring Term, 1876, of the Superior Court of Harnett County. When the case was called for trial in the court below, it was agreed by both plaintiff and defendant, to waive a trial by jury, and that his Honor should try and determine all questions and issues, both of law and fact.

This was a Civil Action, in the nature of Ejectment, originally commenced in the Superior Court of Jones County, and thence removed by consent to Carteret County, where it was tried before his Honor,… Held: that anything occurring at the sale, going to prove that the sheriff sold under the- execution of Aycock, or any other material fact which occurred at the sale, might be proved by parol.

<p>Special Proceeding, instituted in the Probate Court of Greene County, to sell land for assets, and transferred to the Superior Court of said County, and there tried before his Honor, Judge Seymour, at Spring Term, 1876.</p> <p>The petition was filed against Patrick, the administrator of the deceased debtor, and against others, who it was alleged, bad received the land attempted to be sold, under a fraudulent conveyance, and who bad conveyed the same by like conveyance. Issues as to the alleged fraud being raised, it was sent to the Superior Court for trial.</p> <p>On the trial in the Court below, it appeared that in 1867, S. T. Stilly, the intestate, by deed of bargain and sale, conveyed the land, the subject of this controversy, to his brother, the defendant Marshall Stilley, for the expressed consideration of $600 ; and Marshall Stilley on the same day, by deed with warranty, and in consideration of love and affection, conveyed the same to Louisa Stilly, wife of the said S. T. Stilly, now Louisa Cameron, defendant. Both deeds were written and witnessed by the defendant Patrick, and one W. T. Lewis, no relation of the family.</p> <p>The intestate, S. T. Stilly, had no issue, and the deeds-above alluded to were executed in his last sickness, and about ten days before his death. No money, or other consideration, was actually paid by said Marshall Stilly for the land. He gave a note for the $600, and has never seen nor heard of it since; he was a creditor of the intestate for about $800, which has never been paid.</p> <p>The plaintiffs introduced Marshall Stilly as a witness, to prove the transactions and conversations connected with the sale of said land, between the intestate and himself, the witness. This proposed evidence the defendants objected to, on the ground that section 343, C. C. P., rendered him, the proposed witness, incompetent. His Honor overruled the objection, and permitted the witness to be examined. Defendants excepted. No other witness to prove said transactions and conversations was introduced.</p> <p>There was a verdict and judgment for the plaintiffs. Defendants appealed.</p>

Civil ActioN, tried before his Honor, Judge Kerr, at Spring Term, 1876, of Alamance Superior Court. The defendant, McLean, is the Register of Deeds in Ala-mance County, and the other defendants are the sureties on his official bond. The parties are sued by the plantifl for an alleged breach of said bond, in that McLean, as Register, issued a license for the marriage of the plaintiff’s daughter, Alice Jane, with one Wm.

Civil ActioN, tried at the Spring Term, 1876, of RaN-dolph Superior Court, before Kerr, J., upon the following case agreed: I. “ In the year 1868, the gross amount of taxes levied for-County purposes, was $9,051.32, and that the tax books, including both the State, which was $4,059.91, and County taxes for that year, were put into the hands of Z. T. Rush, then sheriff. II.

In a petition for a Certiorari, where the counsel on opposing sides make sworn, contradictory statements to each other, the Supreme Court will not decide between them; and taking no notice whatever of any pretended agreement between the counsel in the Court below, not appearing upon the record, this Court will hold the parties strictly to the provisions of the Code of Civil Procedure.

This was a Civil Action, in the nature of Ejectment, tried before his Honor, Judge Cloud, in the Superior Court of Davie County, at its Spring Terra, 1876. The following are substantially the facts, sent to this Court as a statement of the case by his Honor, the presiding Judge.

Civil Action, in the nature of Ejectment, tried before Buxton, J., at January Term, 1876, of Cumberland Superior Court. The summons in this case issued 8th November, 1871. The land, which is the subject of the action, is a town lot in Fayetteville, three quarters of an acre on Munford street. The defendant, Adaline Little, admitted that she was in possession by her tenants, John Waddell & Co., but denies the right of the plaintiff to recover.

INDICTMENT for Perjury, tried before Kerr, J., at Spring-Term, 1876, of Guilford Court.

This was a Civil ActioN, involving the construction of a will, submitted to and decided by Watts, J., at Chambers in the County of Franklin, January 31st, 1876, upon the following CASE AGREED i (1.) David Thomas died in the County of Franklin, in the month of October, 1864, leaving a last will and testament, in words and figures following, to-wit:. “ la the name of God, Amen I, David Thomas, of the Comity of Franklin and State of North Carolina, do make, publish and declare…

This was a Petition to Rehear, filed at this term by the plaintiff, the case between the same parties, decided at January Term last of this court, and reported in 74 N. C. Rep., in which the facts of the case are fully set out. The errors assigned in the petition, alleged as a cause of rehearing, are stated in the opinion of Chief Justice Pear-SON.

This was an IndictmeNT for Murder, tried at the Spring Term, 1876, of Iredell Superior Court, before his Honor, Judge Furches. The prisoner was charged with the wilful murder of his mother-in-law, an old woman of seventy-two or three years of age, by name Sarah Heilig, in the County of Rowan, in May, 1875. His trial was removed from Rowan to Cabarrus upon his own affidavit, and thence to Iredell, and there tried as above stated.

' This was a MotioN by the defendant for the plaintiff to-increase his injunction bond, heard before Heney, J., at the December (Special) Term, 1875, of New Hanover Superior Court, All the facts of the case are fully stated in the opinion of ■Justice Rodman. His Honor ordered the plaintiffs to increase their injunction bond by addtng to it $10,000, from which order the plaintiffs appealed.

Motion by the plaintiffs to dismiss an appeal from the judgment of a Justice of the Peace, and counter motion by defendant, to be allowed to file proper undertakings, heard before Henry, J., at Spring Term, 1876, of Wake Superior Court.

This was a Civil Action, tried before his Honor Judge Cannon, at Fall Term, 1875, of the Superior Court of Haywood County, upon exceptions by plaintiff to the report of referees, to whom it had been referred to take certain accounts.

Civil ActioN, tried before Schenck, J., at Chambers in Cleaveland County, May 10th, 1875. The complaint alleges: That the plaintiffs are citizens of the State of Maryland, aud are wholesale merchants in the City of Baltimore. That during the year 1873 they sold and delivered to John L. Moore, the intestate of the defendant, goods, wares aud merchandize to the amount of $267.51, which amount with interest, is still due and owing to them, and which said Moore promised to pay.

Civil ActioN, tried before his Honor Judge Moore, at Spring Term, 1876, of Edgecombe Superior Court. The action was begun in the Superior Court of Martin County and removed to the Superior Court of Edgecombe, upon affidavit by defendant. The following evidence was offered on the trial in behalf of the plaintiffs as appears from the record in the case.

<p>When the “statement of the case ” or any part thereof on an appeal to this-. Court, conflicts with the record paper, the latter must prevail, because its imports absolute verity. The “ statement of the case” is not a part of the record proper.</p> <p>Where in an action to recover the' value of a tract of land from the purchaser, an issue was submitted to the jury as to its value,' and the jury responded “ we find all issues in favor of the plaintiff, and assess his damage at $2,000”: Reid, that said amount hears interest from the time it fell due by the contract of sale.</p> <p>{Judge v. Houston, 12 Ired. 108, cited and approved.)</p>

This was a Civil ActioN for the recovery of the price of a steam saw mill, according to contract, tried before his Honor Judge Kerr, at Spring Term, 1876, of WayNe Superior Court.

This was a Civil Action, for the possession of a tract of land, sold by the Sheriff under a ven. exp., tried before Henry, J., at Spring Term, 1876, of the Superior Court of Granville County. The following facts were agreed, and his Honor determined the case upon a due consideration thereof, after argument. * On the 16th December, 1868, judgment was given in a JusticeV. Court, in favor of B-.

Civil Actiok, for the recovery of the possession of a tract of land, tried before Seymour, J., at Fall Term, 1874, of the Superior Court of GreeNE County, upon the following statement of facts agreed: I. Joseph Rasberry, by deed bearing date June 25th, 1847, (a copy of which is attached) conveyed the lands in controversy to his son, Joseph J. A. Rasberry; that the latter died intestate and without issue on the 10th day of April, 1858. II.

Civil Action tried before his Honor Judge Moore, at Spring Term, 1876, of Edgecombe Superior Court. This action was brought to recover the price of a Turbine-Water Wheel and fixtures, the transaction in regard to the purchase of which will appear in the following correspondence, the immaterial portions of the same being omitted: “ Tarboro’, June 13,1873. Messrs. Poole & Hunt, Baltimore, Md.: Gentlemen: — Please send us circular and catalogue of your Turbine wheels.

<p>Civil Action, on an open account, tried before big Honor Judge Syemour, and a jury, at Spring Term, 1876, of Lenoir Superior Court.</p> <p>The action was brought to recover of the defendants three hundred and eighty-eight 53-100 dollars, the price of certain bricks and lumber, sold and delivered by plaintiff.</p> <p>The plaintiff, on his own behalf, testified that in the latter part of the year 1860, one Dr. Lewis Miller came to his house to purchase brick for the church. He wanted to buy about forty thousand. Plaintiff told him, that if he would become personally responsible for the brick, he would let him have them on his individual account.</p> <p>Miller stated to plaintiff that he was one of the trustees of the church, and had been authorized to purchase the brick for the church, refusing to become personally responsible. Afterwards the plaintiff agreed to furnish the brick to said church on account of the church solely; and thereupon he delivered to the church in Kinston, during the years 1860-61, 45,400 brick, at $8.25 per thousand.</p> <p>Plaintiff further stated that he furnished said church $13.98 worth of lumber, by order from the church; that neither the brick nor the lumber has been paid for, and that both were subsequently used in building said church.</p> <p>One Sympkins testified that he delivered some of the brick in question for the plaintiff at the said church; the plaintiff’s team hauled them; that witness was employed as a mason to work on said church, and that he contracted to work with Miller, and was paid partly by note, signed by said Miller, Mr. Griffen and Mr. Hay, who all signed as trustees, and partly by an order on Mr. Griffen, signed by the same parties. Witness further stated that he carried out a bill for lumber to plaintiff’s saw mill, and that the lumber came to the church in the plaintiff’s wagon.</p> <p>One Rouse, for the plaintiff, testified that he was employed by the plaintiff in the year 1860, at his saw mill, and received a bill for lumber made out for said church; he sawed 923 feet of lumber, and it was delivered to the church; witness charged the same to the church, on the mill book, which he exhibited, and the charge found.</p> <p>On the part of the defence, one Webb stated that in I860-the trustees of said church were Dr. Lewis Miller, R. C. Hay, E. G. Griffen and himself; that the building committee of the church were Miller, Griffen and Hay.</p> <p>To this witness the defendants’ counsel proposed to ask the following question : “ State a conversation between yourself and the other trustees in regard to the brick which were to be used in building said church ? ” To this question plaintiff objected, on the ground that there was some .evidence of an agency, either actual or implied, vested in Miller by the church; and the private instruction, not intended to be communicated to the plaintiff, should be excluded, as not affecting the plaintiff’s right to recover— the counsel at the same time stating that by this question he proposed to prove from this conversation that Miller had no authority from the trustees to purchase said brick to be charged to the church, but that he agreed to furnish them himself.</p> <p>Objection sustained, and the question excluded ; defendants excepted.</p> <p>The counsel then proposed to ask the same question, stating that the defendants expected to show thereby that in said conversation the trustees refused to buy the brick, and that Miller then and there stated that he would buy the brick himself and give them to the church.</p> <p>Objected to on the same grounds as the preceding; question again excluded, and the defendants excepted.</p> <p>The defendants then introduced as witnesses on their behalf, the said Hay, Griff en and Webb. Each testified, that neither collectively nor individually,, had they or either of them, authorized Miller to purchase the brick and lumber sued for. They each further stated, that they have had no notice or knowledge that said brick or lumber were charged to the church, until within the last two or three years— shortly before the bringing this suit. They further testified that said building committee was authorized to contract for the wood work only.</p> <p>In his charge his Honor stated, that if the jury believed the evidence, Dr. Miller was one of the four trustees, and one of the members of this building committee of the church; that Miller ordered certain materials for the church, of the plaintiff, who delivered the same as ordered, and they were received and used in the church building; that the materials were charged by the plaintiff to the church, — all of which facts are evidence tending to show agency on the part of Miller, to the plaintiff.</p> <p>That it was not necessary to render the defendants liable for Miller’s acts, that he should have had any authority by a vote of the trustees; or that he should have had any authority as one of the building committee; or that the committee itself should have had authority to contract for brick work; and that the facts that none of the other trustees, or members of the building committee joined in the order; that they had not authorized the purchase, and were not aware that the materials ordered had been charged to the church, were not sufficient to overcome the apparent agency of Miller.</p> <p>Upon this intimation of his Honor’s opinion, the defendants submitted to a verdict for the amount claimed by plaintiff. Judgment in accordance therewith; from which-judgment the defendants appealed.</p>

<p>The reversionary interest in a homestead cannot he sold by an administrator in a petition to make real estate assets, during the minority of one of the children of the intestate.</p> <p>(Poe v. Ila/rdie, 65 N. 0. Rep., 447, cited and approved.)</p>

<p>During the pendency of an action against a guardian and the sureties on his bond, by his ward, for an account and settlement, and while the same is under reference, and before the report of the referee is complete and finally acted on, and before any of the ward’s estate is in possession of the Court, the Superior Court has no power to order the guardian and his sureties to pay a certain sum into Court for the ward’s maintenance and support pendente lite, and a further sum for her attorney.</p> <p>It it is made to appear to the Court, pending the action, that a fund belong, ing to the ward is in possession of the guardian removed, the Judge may by process of contempt, compel its payment into Court, where it will be subject to such orders and disposition as the necessities of the ward may require. But until it is so paid into Court, it is not subject to the protection and control of the Court.</p> <p>In order to obtain an allowance for maintenance, it must be shown that there is a present income belonging absolutely to the infant, and that the allowance will be for his benefit.</p> <p>(The case of Daniel v. Owen, 72 N. C. Rep., 340, cited and approved.)</p>

<p>A sold to B a tract of land, executing and delivering therefor a deed in fee simple, and taking from B a note for value received, and in which it is stated, “ the land I have sold to B is bound for this note;” afterwards B sold the land to the defendant, and in the meantime A transferred the note to tiie plaintiff, who obtained judgment thereon, and caused said land to he levied on and sold as the land of B, the obligor in the note, he, the plaintiff, purchasing the same at the sheriff’s sale and taking the sheriff’s- deed therefor: Held, in an action to enforce said lien, and recover possession of said land, that had the terms of the note been incorporated in tiie deed and been duly registered, it might have constituted a lien or trust, attached to the land and accompanying its transfer to the defendant, who would have taken it cum onere.</p> <p>If such note, in connection with the deed, could have had the force of a mortgage, on registration, it can have no validity whatever until so registered, and then it could take effect only from and after registration. Under the act of 1829, Bat. Rev., chap. 35, sec. 12, no notice to the purchaser, (the defendant,) however full and formal, will supply the place of registration.</p> <p>[Latham v. Skinner, Phill. Eq., 292; Robinson v. Willoughby, 70 N. C. Rep., 358; Fleming y. Burgin, 2 Ired. Eq., 584; LeggetY. Bullock, Bush,, 283; Miller v. Miller, Phill. Eq., 85, and WombleY. Battle, 3 Ired. Eq., 182, cited and approved.)</p>

This was an Indictment for an Assault with intent to commit Rape, tried at Spring Term, 1876, of Chowan Superior Court, before his Honor Judge Eure and a jury. The material question arising on the trial in the Superior Court, and the only point decided in this Court, was as to the exclusion of certain evidence.

INDICTMENT for Extortion,, tried at the Spring Term, 1876, of Catawba Superior Court, before his Plonor Judge Furches. t The defendant was charged in the bill of indictment with the taking unlawful fees in his office of Justice of the Peace from one Joshua Hefner.

This was a Civil ActioN, for injunction and other relief, heard before His Honor, Judge BuxtoN, at Chambers, in CUMBERLAND County, on the 20th day of November, 1875.

The pleadings and facts of this case are the same as those in the preceding case, between the same parties, with this exception: In this case, the tax complained of was levied under the Revenue Act of 1874, in which the shares of stock in the National banks in this State are not in express terms required to be listed. In all other respects the facts are the same. His Honor, upon the hearing, granted the injunction upon the plaintiff’s giving the bond required by law.

<p>The act of 1781, abolishing' the Jits aeareseencli in joint estates, for the benefit of the heir, &c., of the deceased joint tenants, does not apply to joint tenants for life.</p> <p>Therefore, where a testator, after giving land to his daughter for life, devised in respect to it as follows: “at her death my executor is to put in possession of my three grandsons, Joseph, Richard and David, for them to use it during their natural lives, for it is not to be subject to be parted with under no consideration, and at their death, give it to their children in fee:” Held, that, Joseph and David having died without issue, Ricliar¿ had a life estate in the whole of the land; and that at his death, without children, it will revert to the heirs at law of the testator.</p>

Summary Proceedings in Ejectment, commenced in Magistrate’s Court; taken by appeal to Superior Court by defendant, and tried by BuxtoN, J., at Spring Term, 1874, of Cumberland Superior Court. The following statement of the case is sufficient to present the points decided by the Court. There were other points raised in the case, but as a venire de novo was ordered for error in the Court below in excluding evidence, they are not touched upon in the opinion. Jno.

This was a Civil ActioN for injunction and other relief, brought to Spring Term, 1876, of the Superior Court of CUMBERLAND County, and heard before his Honor, Judge Buxton, at Chambers, May 23d, 1876.

Civil ActioN for the recovery of the possession of a tract of land, tried before his Honor Judge Seymour, at Spring Term, 1875, of Wilson Superior Court. At June Term, 1874, of this Court, a new trial was granted in the case on appeal by plaintiff. The case was also before the Court at June Term, 1872, It will be found reported in 67 N. C. Rep., 93, and in 71 N. C. Rep., 14.

This was a PetitioN for an Account and Settlement, commenced in the Probate Court of Catawba County, and thence transferred t'o the Superior Court, and'there heard on exceptions to the report of the referee, before Furches, J., at Spring Term, 1876. The plaintiffs are the next of kin of the testatrix of the -defendant.

This was a Civil Action demanding the cancellation of a ■deed and other relief, tried before his Honor Judge McKov, at Fall Term, 1875, of Carteret Superior Court.

This was a Civil ActioN. Application for an Injunction, Iheard before his Honor Judge Seymour, at February Term, 1876, of Carteret Superior Court.

<p>The Act of 1872-73, chap. 144, limiting the power of cities and towns to tax, to one and one-half per cent, on the value of the real and personal property within their limits, applies to the city of Wilmingeon, the power of taxing not being limited in its charter; subject, however, to the qualification, that it does not operate to limit the power to tax for the payment of any valid debt contracted before the passage of’ the Act, 3d March, 1873.</p> <p>The Constitution, while it requires taxation to be uniform on all property within the city, and requires the observance of a certain proportion between the tax on the polls and on property, contains no limitation on the amount of tax which cities and towns may impose, tinder the Act of 1871-72, chap. 27, p. 32, the corporate authorities may levy a tax over and above the limits of one and one-half per cent, for the purpose of raising a Sinking Fund, to be applied to the payment of any valid indebtedness incurred before the 3d day of March, 1873.</p> <p>(Trull v. Commissioners of Madison, 72 N. C. Rep. 388; and French v. Commissioners of New Hanover, 74 N. C. Rep.-, 692, cited and approved.)</p>

Petition for a Habeas Corpus, heard by his Honor Judge Buxton, at Chambers, in the County of Cumberland, on the 13th day of August, 1875. This case was originally brought to the Superior Court of Cumberland, to recover the amount of a promissory note, for which judgment was rendered at January Term, 1875, for the sum of $423.80, with interest on $382 54 from the 25th day of January, 1875.

MotioN, for a writ of possession, beard before Henry, J., at Chambers, in Madison County, May-, 1875. The facts necessary to an understanding of the case, are fully stated in the opinion of the Court. There was judgment in favor of the plaintiff, and ¡the defendant appealed.

Civil ActioN, tried before ScheNCK, J., and a Jury, at Spring Term, 1876, of MeckleNburg Superior Court. The action was instituted to recover upon a promissory note, alleged to have been executed by W. H. EL Elouston & Co. as principal and W. J. Black as surety. The defendant filed a sworn answer, denying the execution of the note.

This was a Motion for an Injunction, heard before his Honor, Judge Buxton, at Chambers, in the County of CUMBERLAND, July 15th, 1875. The leading facts in this case are almost identically the same as those in Mills & Wife and others v. 1 he Salisbury Building & Loan Association, ante, page 292, and therefore need not be stated. On the hearing by his Honor below, he continued the restraining order theretofore granted, from which order, the defendant appealed.

Civil Action tried before Kerr, J., at December Term, 1874, of the Superior Court of Guilford. The action was brought against the defendant as trustee under a deed in trust, executed by the plaintiff in 1858, for an account and settlement, &c. It was referred to Ralph Gorrell, Esq., and heard upon exceptions by both parties to a report and supplemental report filed by him.

<p>Civil ActiON for recovery of land, tried at Spring Term, 1876, of the Superior Court of Cumberland, before his Honor, Judge Buxton.</p> <p>The complaint describes the land as lying “ on the waters of Big Rockfish, Buffalo and Juniper creeks. Beginning at a stake,” (with courses, &c.,) “ including two thousand acres known as the Gilchrist lands and the lands formerly owned .by Neill McCramey, and all the lands formerly owned by the said McRae within said boundaries, being about three thousand acres.” The plaintiff claimed under sheriff’s deed as purchaser at sale under execution against the defendant; said deed was dated August 9th, 1870; and recites- a judgment in favor of Alex. Johnson, to use of T. 8. Lutterloh, v, Neill McFadgen, Dugald McFadgen and John McRaean execution issued and levied on the lands of said McRae and returned to Court; a ven. ex. issued on the 4th of September, 1869, directing a sale of said lands- to satisfy the sum of $840.54, amount of debt, together with costs; a sale under said ven. ex., November 1st, 1869, to E, L. Pemberton as purchaser, at thirty cents per acre, being $900' for the whole.</p> <p>The defendant denied the plaintiff’s title, on the following grounds, among others; that the levy was void for uncertainty ; that the lands embraced in the description in the complaint contained about 5,000 acres, instead of 3,000; and the sheriff, selling by the acre, should have- laid off 3,000 acres by survey, and that no homestead was allotted to him.</p> <p>Evidence was offered showing that the defendant’s lands at the time of the alleged levy and sale consisted of two tracts — the Gilchrist tract, within the boundaries of which defendant levied, containing 4,951 acres, lying on the north side of Big Rockfish Creek ; and the McCraney tract, lying on the other side of the creek, and containing about 400 acres. The boundaries in the sheriff's deed included both tracts.</p> <p>The plaintiff offered the executions recited in the sheriff’s deed in evidence, with the endorsements thereon. The original fi.fa. was issued December 22, 1867, returnable to Spring Term, 1868. A deputy sheriff who had the fi. fa. in hand testified that on January 12,1868, he made the following entry in his memorandum book : “January 12th, 1868. —This day I have levied on the property of John McRae ; 3,000 acres of land, lying on the west side of Big Rockfish ; joins McDiarmid and others; pine lands — to satisfy execution in my hands for collection. Signed, R. W. Hardie) sheriff, by D. McKennon, deputy sheriff.</p> <p>He further testified that hé kept the levy back “ until orders from headquarters to return papers with levies on them, without sale,” and returned the execution after the general election held on the 21st, 22d and 23d of April, 1868 ; and the endorsement for levy, from the memorandum book, was then made on the execution.</p> <p>The jury found a verdict “ in favor of the plaintiffs, in accordance with the levy made by R. W. Hardie, sheriff, by the deputy, Daniel McKennon, for 3,000 acres, lying on the west side of Big Rockfish, joining McDiarmid and others— pine land — excluding the home place of John McRae; the 3,000 acres to be taken from the Gilchrist land.” Therefore, the defendent moved for judgment non obstante veredicto. Motion overruled. Rule for a new trial was discharged, and his Honor rendered a judgment in favor of plaintiff, and appointed two surveyors commissioners to survey and allot to the plaintiff 3,000 acres of the lands described in the pleadings and in the verdict, and report their proceedings to the pext Term of the Court, to the end that upon confirmation of their report a writ of possession might issue.</p> <p>Defendant thereupon appealed.</p>

MotioN, for Summary Judgment, after notice, against the Clerk of the Superior Court of Beatjeobt County, and the sureties on his official bond, heard before Mooee, J., at Spring Term, 1876, of said Court. At Fall Term, 1872, a decree was made in the above entitled cause, ordering the sale of certain property in the town of Washington, for partition, and George L. Windley was appointed Commissioner to sell and report to the following Term.

Civil ActioN, heard before ScheNCK, J., at Fall Term, 1875, of the Superior Court of GastoN County. The facts necessary to an understanding of the case are stated in the opinion of the Court. There was judgment in favor of the plaintiff, and the defendants appealed.

Civil ActioN, for recovery of land, tried before Moore,. J., at May Term, 1876, of the Superior Court of Edgecombe. The plaintiff claimed under a deed from one Elizabeth Anderson to him, dated March 22d, 1873, and expressed to be made in execution of a power of sale-vested in her by a deed of trust, executed to her by one Bennet Melton, May 15th, 1857, to indemnify her as surety on a note to one* Griffin for $100, dated October 15th, 1853.

This was a Civil ActioN, on a bond given by a deputy to his principal, tried before bis Honor, Judge CANNON, upon exceptions to the report of a referee, at Spring Term, 1875, of Cherokee Superior Court. The plaintiff was Sheriff of Cherokee County in 1868, and in August, of that year, appointed one J. W. fi- Piercy his deputy, taking from him a bond in the penal sum of $8,000, with the defendants as sureties.

Civil ActioN to recover the price paid for a bond of the city of Wilmington, tried by Moore, J., at May Term, 1876 f of Edgecombe Superior Court, This suit was commenced May 22d, 1871.

This was a Civil ActioN to recover the amount due on a bond, tried before his Honor Judge Moore, at June Term, 1875, of Granville Superior Court. The bond upon which the suit is brought is as follows : “ $500.00. With interest from the date, we, Augustin Landis, principal, and William A. Philpot and A. Landis, Jr., sureties, promise to pay to R. H. Kingsbury, trustee for Mrs. S. J. Kingsbury, five hundred dollars for value received.

<p>If a principal constitutes an agent to do a business which obviously or reasonably cannot be done by the agent except through a sub-agent ; or if there is, in relation to that business, a known and established usage oí substitution, in cither case the principal would be held to have expected and authorized such substitution.</p>

This was a Motion, by defendants, to set aside a judgment obtained at Fall Term, 1870, of Cumberland Superior Court, heard before his Honor, Judge Buxton, at January Term, 1876,. of said Court.

<p>Civil ActioN, tried before Buxton, J., at Spring Term, 1876, of the Superior Court of Lincoln.</p> <p>The defendant Froneberger was duly appointed guardian of the plaintiffs and three other wards, and gave bond as such, with one E. B. Jennings and others as sureties. One Joshua Beam had been the guardian of said wards, and, in settlement of his guardianship with the defendant Frone-berger, conveyed to him a tract of land, whereupon Frone-berger gave him a receipt in full of his indebtedness to said wards. Defendant Froneberger settled with three of his wards, and this action was brought by the other two to subject said land to the payment of the amount due them.</p> <p>The plaintiff J. F. Beam liad sued Froneberger and the sureties on his guardian bond, and recovered judgment against them. An execution was issued and returned by the sheriff, with the plaintiffs’ receipt for $300, expressed to he in full of Jennings’s liability under the execution, and discharging him therefrom.</p> <p>• The Solicitor for the District had prosecuted another action on said bond, for the benefit of the other plaintiff, D. A. Beam, to judgment; execution was issued, and the sheriff returned it with receipt of D. A. Beam, also expressed to be in discharge of Jennings, one of the sureties on the bond as aforesaid.</p> <p>Before the recovery of these judgments the land in controversy had been sold under execution against Froneber-ger, and purchased by the First National Bank of Charlotte, one of his creditors, without actual notice of the plaintiff’s claim upon the laud. The Bank executed a bond for title to the other defendants, Wm. Tiddy and Richard Tiddy, before the commencement of this action, and they had no actual notice of the plaintiffs’ claim, but they had paid no part of the purchase money.</p> <p>The plaintiffs, in their complaint, demanded judgment: 1st. That the Bank be declared trustee of said land for their use. 2d. That the Bank and W. & R. Tiddy deliver possession to them, and account for use and occupation of the land. 3d. That the land be sold and the proceeds applied' to payment of the plaintiffs’ debt, and the surplus, if any’ paid to the Bank. 4th. For other relief.</p> <p>The jury found a verdict on the issues, under instructions from the Court, establishing the facts as above, and the plaintiffs thereupon asked for a sale of the land. This was refused, and a judgment rendered, ordering the sale of two-fifths of the land, and the application of the proceeds to the payment of plaintiffs’debt and costs; the surplus, if any to be paid to the Bank.</p> <p>Both parties thereupon appealed.</p>

Civil Action, praying .an Injunction against the Public Treasurer, heard before Watts, J., at Chambers in the County of Wake, March 29th, 1875. • Upon hearing the preliminary restraining order and the complaint and affidavit, no answer having been filed, his Honor continued the injunction until the final hearing. Prom this judgment the defendant appealed. All the facts relating to the points decided in this Court are fully stated in the opinion of Justice Rodman.

Civil ActioN, praying an Injunction against the Public Treasurer, restraining the collection of a certain judgment, theretofore obtained, heard before Watts, J., at Chambers in the County of Wake, 15th April, 1875. Upon the hearing of the complaint and affidavit, no answer being filed, his Honor continued the Injunction until the final hearing.

Civil ActioN for the specific performance of a contract to convey land, tried before Seymour, J., and a jury, at January (special) Term, 1876, of the Superior Court of WayNE. The action was brought to Fall Term, 1874, and was before this Court at its June Term, 1875.

<p>The act of 9th March, 1870, (Bat. Rev., chap. 85, sec. 3?,) concerning conveyances to persons while slaves, does not apply to a case where one having himself no title made a parol conveyance of land to a slave, and put the slave in possession more than ten years "before the passage of the act. That act extends only to cases where the alleged donor or vendor had title himself/</p> <p>As the act of March 33d 1875, (Laws 1874-75, chap. 3, sec. 6,) affects the remedy of parties only, it does not interfere with vested rights, and is not unconstitutional or void.</p> <p>In an action to recover real estate it is not error to allow a deed for other land than that in controversy to be read in evidence to corroborate statements of witnesses.</p>

This was a Civil Action, for breach of contract, tried ■before his Honor Judge Buxton, at the Spring Term, 1876, of the Superior Court of Union County. The summons in this suit issued 5th March, 1870, returnable to the Sup&rior Court of Cleaveland county, from whence it was removed, on affidavit, to the county of Gas-ton, and there tried (Fall Term, 1871), when the jury rendered a verdict in favor of the plaintiff, and he had judgment; from which judgment defendants appealed.

This was a Civil ActioN, heard and determined before his Honor Judge Seymour, at the Fall Term, 1875, of the Superior Court of WilsoN County. The plaintiff sued 'upon a judgment obtained at Fall Term, 1862, of Wilson Superior Court, in the name of T. H. Mallison, to the use of Benjamin Bynum, against A. J. Barefoot. The defendant admitted the rendition of the judgment, but alleged that the same had been paid and satisfied and pleaded no assets.

Civil ActioN, for the recovery of two acres of land, tried before his Honor, Judge Schenck, at Spring Term, 1875, of the Superior Court of CleavelaND County. A jury trial was waived, and the whole matter was tried by the Court. The plaintiff introdued a deed', properly registered from one Beam to himself, dated 12th September, 1863, for forty acres of land, including the locus in quo.

Civil ActioN, for the proper construction of a will, commenced on the 9th day of April, 1873, in the Superior Court of New Hanover County, and thence removed to Columbus County, upon the affidavit of plaintiffs, and there tried before McKoy, J., at Spring Term, 1876. The suit was instituted to recover a certain storehouse and lot on Front street, in the eity of Wilmington, claimed by plaintiffs as tenants in common, and damages for its detention.

Justices Reade and Rodman dissenting from the opinion of the majority of the Court in this case, which was reported; ‘74 N. C. Rep., 402, and before the dissenting opinion of Judge Rodman was received, it is now published as part of that case, 74 N. C. Rep., 402.