Volume 76 — North Carolina Reports

Rape — Married Woman — Consent obtained by fraud. . .INDICTMENT, for au assault with intent- to commit rape,, tried before Fitrches, .71, at Fall Term, 1876, of UNION Superior Court. During the argument, defendant’s counsel asked 1 he Court to charge the jury, that there was not sufficient evidence of intent to justify a verdict of guilty. This the Court refused, to do, hut- left the question of intent to the jury.

Negligenee — Liability of Master. PETITION to rehear, by the defendant. (See 74 N. C. 734.) The petition was heard at June Term, 1876, and the opinion -delivered, but not heretofore reported.

Jurisdiction -- Justice of the Peace. Civil ActioN brought in a Justice’s Court in the county of Bladen, in which the plaintiff recovered of defendant company, the value of a cow which was killed by an employee of the company, while running an engine and cars on its road.

<p>Peace Officer — Assault on— Violation of Town Ordinance.</p> <p>INDICTMENT., for assault pud battery, tried at ■ Fall Term, 3876, of Union Superior Court, before Furches J.</p> <p>The indictment was drawn in the-usual form and charged, the defendant -with an assault on one "Weill. There was-evidence tending to show that Weill was a policeman in the-town of Monroe, acting under its corporate authority ; and that the defendant was violating the laws of the town at the-time the difficulty occurred, and resisted the policeman who-arrested him.</p> <p>The Solicitor for the State contended, that any resistance-on the part of the defendant, would he, an assault on the-officer; hut the Court being of a’ different opinion, intimated that as the indictment did .not set out the office or authority-of Weill, the defendant and. Weill .should be put-on an equal footing.</p> <p>Upon this intimation, certain questions were submitted to-, the jury, and upon their findings in reply as in a special-verdict, the substance of 'which is stated in the opinion, the-Coui’t gave judgment for the defendant and the Solicitor for-the State appealed.</p>

Jurisdiction — Town Ordinances — By whom executed. • INDICTMENT for misdemeanor tried at Spring Term, 1876, of Halifax Superior Court, before Watts, J. The defendant was charged with selling spirtuous liquors on Sunday, in the town of Scotland Neck, in violation of an ordinance of said town.-' On the trial in the Court below, the defendant moved to quash the bill of indictment for want of jurisdiction, which motion was allowed, and the State appealed.

Jurisdiction — Violation of Municipal Laws. INdictment for misdemeanor under cli. Ill, § 31, Battle’s IRevisal, tried at Fall Term, 1875, of Anson Superior Court, ’before Buxton, J. The indictment charged defendant with selling spirituous 1-liquors, in violation of an ordinance of the town of Wades-boro. The facts, necessary to an understanding of the case, -are sufficiently stated in the opinion of this Court.

Indictment — Murder. This was an Indictment against Allen Carter for the murder of Bushrod W. Lilly, removed from Stanly county, and tried before Furches, X, at Fall Term, 1870, of Richmond Superior Court.

Contract — Agricultural Supplies — Promise to pay debt of another:. Civil Action:, tried at Fall Term, 1876, of AnsoN Superior-Court, before Furches, J. The action was commenced before a Justice of the Peace.,, and brought by appeal to the Superior Court. The plaintiff declared upon a store account of $56.09. which was charged to the defendant, and $100, which was*, charged to one Treadaway who was a cropper of the defendant.

<p>1. An answer which sets out. “that no allegation of the complaint is true” is insufficient. It is necessary that the defendant shall separately answer each allegation of the complaint, by a general denial either of the whole allegation (not the whole complaint) or by a specific denial of some selected and specific part of the allegation.</p> <p>2. In a proceeding before a Justice of the Peace under the Landlord and Tenant Act, (Laws 1868 — ’09, ch. 156,) a defendant who does not deny having entered as the tenant of the plaintiff, is estopped from setting up a superior title existing at the date of the lease or subsequently acquired from a third person.</p> <p>( Calloway v. Hamby, 65 N C. 631 ; Turner v Lowe, 66 N. 0. 413; Flack v. Dawson, 69 N. C. 42; Abbott v. Cromariie, 72 N. 0. 292 and Forsythe v Bullock, 74 N. 0. 135, cited, distinguished and approved. )</p>

Jurisdiction— Conflict of Municipal and Stcite Law. CRIMINAL ACTION, tried at Fall Term 1876 of Beauf jrt' Superior Court, before Moore, J. This was an appeal by the defendant from the judgment of the Intendant of Police of the Town of Washington, sentencing him to jail for violation of an ordinance, of which the following is a copy : “No. 21. All persons are prohibited from injuring or damaging the pumps, bridges or any other public property.

Indictment — Burglary — Challenge to. Jurors — Wife’s Separate Property — Verdict. INDICTMENT for burglary, tried at Fall Term, 1876, of Robeson Superior Court, before McKoy, J. The material facts in the ease together with the causes-assigned for a new tidal and arrest of j udgment are sufficiently stated by Mr. Justice Rodman in delivering the-opinion of this Court. Under the instructions of His Honor in the Court below,, the jury rendered a verdict of guilty. Judgment.

Indictment — Burglary—Wife’s Separate Property. INDICTMENT for Burglary, tried at Spring Term, 1876, of Robeson Superior Court, before McKoy, J. The bill of indictment charged the defendant and Andy Wincroft with breaking and entering into the dwelling house of Joseph G-. Baxley, with intent to commit a felony. The defendants were tried separately, and the facts in this case are substantially the same as in the preceding case.

Executory Contract — Implied Promise. ActioN for money had and received, tried in a Justice’s-Court of Wayne County, where judgment was given for plaintiff for $113.35.

<p> Damages— Warranty. </p> <p>Civil AoxioN, for damages tried at Fall Term, 1876, of Rowak Superior Court, before Cloud, J.</p> <p>The plaintiff alleged that in October, 1870, she purchased a. house and lot in Salisbury of the defendant and took from him a deed with full covenants of warranty; that afterwards one Delane, claiming title thereto, brought an acción and evicted her by title paramount; that by reason thereof she was damaged to the amount of $700.</p> <p>The defendant denied that Delane had any title to the premises before or since the execution of his deed to plaintiff ; and the evidence tended to show that prior to July, 1869, the plaintiff negotiated with one TIenry Cox for the purchase of said premises at the price of $700, which was paid by plaintiff; that to make up said amount plaintiff borrowed $200* of defendant, and it was agreed that Cox should execute the dee’d to defendant to secure the $200, and upon payment of the same the defendant should make a quit claim deed to plaintiff. On the 10th of October, 1870, said sum was paid and a deed executed in pursuance of said agreement; that covenants of general warranty were inadvertent^ inserted in the deed (a printed form being used) contrary to an express understanding of the parties; that the only object of the defendant was to pass the legal title on payment of the money. Under the instructions of the Court, the jury rendered a verdict in favor of plaintiff' for .$700 and interest.</p> <p>Rule for new trial. Rule discharged. Judgment. Appeal by defendant.</p>

Supreme Court,— Orders'.— Rules. Civil actioN for specific performance of a contract, (see 75 N. C., 551,) in which the defendants appeal from an order made at Fall Term, 1876, of WayNE Superior Court, by Seymour, J. The order of Ilis Honor was made on its appearing that plaintiff had deposited in the office of the Clerk, for the-use of defendants, the purchase money for the premises in suit; and it required the defendants to execute deeds, to be ap-approved of by the Clerk,…

Special Proceedings — Practice. Appeal, from an order made at Fall Term, 1876, of WayNE Superior Court, by Seymour J. The following is a copy of the order : “This action is remanded to the Clerk of this Court, for 'the plaintiff 13. M. Isler and the defendant D. A. Murphy, Executor of J. T. II. Murphy, to file the complaint and other pleadings herein, required by the statute in such cases.

Criminal Trials — Presence of Prisoner. INDICTMENT for larceny, tried at Eall Term, 1876, of Edge-combe Superior Court, before Moore, J. The jury, under the instructions of the Court, rendered a. verdict of guilty, which was received by the Clerk during-the recess of the Court, in the absence of the prisoner and without any instructions from the Court; whereupon the* counsel for the prisoner moved in arrest of judgment, which, motion was allowed by the Court, and the…

Ejectment -- Lappage — Praetiee. Civil ActioN for recovery of land, tried at January Term, 1876, of Cumberland Superior Court, before Buxton, J. Plaintiff claimed title and possession of three tracts of land situated on Lock’s Creek, Cumberland county, containing 200, 83 and 50 acres respectively. Defendant disclaimed as to all outside of certain lines, within which were included, as plaintiff claimed, parts of each of the said three tracts.

Indictment — Trial — Continuation of Term. INDICTMENT, for murder tried at Fall Te'rm, 1876, of' Beau-tort Superior Court, before Moore, J. The trial commenced on Wednesday of the second week of the term, and between eleven and twelve o’clock on Saturday night following, the jury having failed to agree, His Honor continued the term until Monday morning at ten o’clock of the following week, and on that day, the jury rendered a verdict of guilty and were discharged without the…

<p>1. A call for the line of another fcraet of land is “a natural boundary”" and controls course and distance.</p> <p>2. Such a call excludes the question, whether marked lines and corners: not called for can control course and distance.</p> <p>5. In running the call, the line must be run straight so as to strike the line called for, making as small a departure as may be from the course: and distance called for in the grant.</p> <p>4. Where there are two lines answering the call, the jury in determining which is meant, may consider the circumstance, that lines were run by the surveyor and corners made at the "time of the survey, loading to» one of them.</p> <p>6. Marked line trees and corners not called for, may control an obvious: mistake in regard to cours.e, but distances must be run unless controlled by a natural boundary.</p> <p>6. The terms of a written instrument cannot be varied by parol evidence; the only exception is made in questions of boundary where there being-no natural boundary called for, parol evidence corroborated by natural evidence of trees marked at the time, although not called for, is allowed to correct or explain a mistake in-the courses of a grant.</p> <p>(Clarke v Wagner, 74 N. C. 791, cited and approved.)</p>

<p>Penalty for refusing to aeeept offiee — Constitutionality of Statute — Justice’s Court — Praetiee therein. '</p> <p>Civil ActioN, commenced in a Justice’s Court in the County of Chatham and heard at Chambers on the 15th of June, 1876', before Kerr, J.</p> <p>This action was brought before a Justice of the Peace, to> recover the penalty of $25 given by Bat. Rev. Ch. Ill, § 25, against every person duly elected or appointed Town Constable, &e., who after being duly notified, shall neglect or-refuse to qualify and pei’form the duties of his office or appointment.</p> <p>The Justice gave judgment.against the defendant who appealed to the Superior Court, where the Judge reversed the judgment of the Justice, and gave judgment for the defendant for costs, from which, the plaintiff appealed to this Court.</p>

Clerk of Superior Court -- Breach of Official-Bond. Held: that there was a breach of the oficial bond and that defendants were liable. Defendants excepted. The jury rendered a verdict for the plaintiff. Judgment, and appeal by defendants.

Fraud— Execution Sale — Bona fide Purchaser for Value. Civil Actios, tried at Pall Term, 1876, of IIaRnett Superior Court, before Fitrches, J. This was a proceeding to sell land for assets commenced in. the Probate Court of Moore County, and transferred to -the Superior Court to try issues involving the title to the land. Upon affidavit of the defendant Caddell, the case was removed to the County of Harnett.

<p>1. Before the adoption of the Code of Civil Procedure, the levy of a senior-execution on land did not prevent a levy and sale under a junior execution and a purchaser at such sale obtained a good title. The Code' has constituted a docketed judgment a lian on the real property of the judgment debtor, and a purchaser at a sale under a junior docketed judgment acquires the estate subject to the lien of any prior docketed judgment.</p> <p>2. A judgment obtained before the adoption of the Code, if docketed within a reasonable time thereafter, acquired a lion upon the real estate of the judgment debtor. Such judgments were not prejudiced byth$-adoption of the Code.</p> <p>3. The “minimum” price at a sale for taxes under the U. S. Revenue Laws, is the least price which, in the opinion of the Collector, the prop-<rty ought fairly to bring.</p> <p>4. Where A, with intent to defraud his creditors, furnished money.to his-daughters (being indebted to them at the time) with which-to purchase his land at execution sale, they not being parties to his fraudulent purpose and not buying for his use, and the daughters purchased the- land for a fair value ; H Id, that the daughters obtained a good title.</p> <p>Hervey v. Edmunds, 38 N. 0., 243 ; Woodley v. Gilliam. 64 N. C., 649 Isler v. Colgrove, 75 N. C., 334 ; Worthy v. Gaddell at this term, cited distinguished and approved.)</p>

Mortgage — Power of Sale. Appeal, from a Decretal Order made on the 26th of February, 1876, at Chambers, by McKoy, J. In January, 1874, the intestate of plaintiff executed a mortgage deed to the defendant, conveying certain lands in Duplin and Wayne counties to secure the payment of a note for $1,815.00, with a power to sell the land in default of payment. It was alleged that the note was usurious, but. denied in the defendant’s answer.

Mortgage — Power of Sale — Purchase by Mortgagee. Civil Action for the recovery of land, tried at Fall Term, 1876, of Pitt Superior Court, before Moore, J. The defendant executed a mortgage deed to J. W. May, conveying the laud in controversy. May assigned the note secured by the mortgage to the plaintiff, Whitehead. The plaintiff sold the land under a power contained in the deed and •without a decree of foreclosure, and one Bernard bought as •the agent of plaintiff.

Statute Conflict of, with Constitution. Civil AotioN, tried at Fall Term, 1876, of AlamaNce Superior Court, before Kerr, J. The plaintiffs alleged, that they were entitled to all the dividends declared by any corporation chartered under the .laws of this State, which have not been recovered or claimed by the parties entitled thereto, for five years after said dividends were, declared, by virtue of the provisions of Chapter-236, Laws 1874-’5; that the defendant company had,…

<p>1. Where A dies leavirig a last will'and testament, appointing B and C‘ his Executors, “ with discretionary powers to settle my estate as they’ judge best for the interests of my heirs at lawHeld, That the Executors have no power to sell the lands of the testator.</p> <p>2. To confer a power to sell land under a will, plain and express words-are necessary; or the power must be implied by the imposition of duties on the Executor, which cannot be performed except by a sale.</p>

Notary Public — Affidavit for Order of Arrest. MOTION to vacate an Order of Arrest obtained in an aetiou brought in Cumberland Superior Court, heard at Chambers on the 26th of December, 1876, before Buxton, J. The plaintiff firm, doing business in the city of New York, sold a bill of goods to the defendant to a considerable amount and claimed that there was still due the sum of $1,741.76.

Officers of State — Salaries exempt from attachment. Civil ActioN, tried at June Term, 1876, of Wake Superior Court, before Watts, J. The plaintiff recovered a judgment against the defendant for $1,368. An execution was issued and returned nulla bona.

Indictment — Removing fence, &c. • Ikdictmekt .under the Statute (Bat. Rev. cb. 32, § 93,) for removing a fence surrounding a cultivated field, tried at Fall Terra, 1876, of LINCOLN Superior Court, before Schenck, ■J. It appeared that the prosecutor owned a store near Ore Bank in Lincoln County and a small parcel of land adjoining, which he had in cultivation.

Charge to Jury — Manner of. INDICTMENT, for Fornication and Adultery, tried at Fall Term, 1876, of Yadkin Superior Court, before Kerr, J. The facts in the case and the exception to His Honor’s charge to the jury, are sufficiently stated in the opinion of this Court. There was a verdict of guilty and judgment,, from which the defendant appealed.

Indictment — Larceny — Evidence. INDICTMENT for Larceny, tried at Pall Term, 1876, of ALEXANDER Superior Court, before Buxton, J. The facts are stated by Mr. Justice Reade in delivering the opinion of this Court. Verdict of guilty. Judgment. Appeal by defendant.

Arrest — Liability of Partners. MotioN to vacate an Order of Arrest, made at Fall Tet m, 1876, of Eowan Superior Court, before Cloud, J. . No statement of the facts is necessary to an understanding of the opinion. ITis Honor allowed the motion to vacate, and the plaintiff appealed.

Township Trustees — Assessment of Taxes. Appeal from an Order confirming the decision of the Board, of Commissioners of UNION County, made at Pall Term,. 1876, of the Superior Court of said county, by Buxton, J. The question presented for the decision of this Court is sufficiently stated' in its opinion.

False Representations — Contract. This was a PROCEEDING for the sale of land, for the purpose of reinvesting the fund arising therefrom, heard at Fall Term, 1876, of Surry Superior Court, before Cloud, J. The plaintiffs originally filed an ex parte petition tor the sale of certain lands in Surry County, and Edwin H. Banner was appointed a Commissioner to make the sale, which, was accordingly done, and the defendant became the purchaser in the sum of $8,000.

Trusts and Trustees — Aeeount. Civil ActioN, tried at Fall Term, 1876, of Chatham Superior Court, before Cloud, J. The plaintiff claimed certain lauds in the county of Chat-ham, formerly owned by the defendant. The Sheriff’ sold the same by virtue of sundry executions against the defendant and the plaintiff became the purchaser in the sum of $200, and upon payment of the money, obtained a deed from the Sheriff.

<p> Landlord and Tenant — Jurisdiction. </p> <p>Civil ACTION tried at Pall Term, I87d, of Davie Superior-Court before Kerr, J. The plaintiff claimed certain crops*,, us due him from the defendant, for rent of a plantation fertile year 1874. There was evidence tending to show that: -defendant rented the plantation of plaintiff and that he; was to pajr rent in.kind, and that one-third of the crop was? the customary rent. The jury however upon this issue being submitted found that the defendant did not agree to-pay one-third of tbe crop in kind ; and there was no evidence-that the defendant agreed to pay money rent. The jury found as a further fact, that the value of the rent of the land for 1874 was $177.75 ; this sum being ascertained by calculating the value of - the com, wheat, &c , raised thereon, during said year.</p> <p>Ilis Honor thereupon . gave judgment in favor of the plaintiff for the value of the rent and costs of action, from .which the defendant appealed.</p>

Statute — Construction of. Civil action tried at Chambers on the 18th of October, 1875, before McKoy, J. The plaintiff was one of the Registrars of voters at the election which was authorized to be held in defendant city, under § 8, Ch. 43, Private Laws 1874-’5, and performed the duties required He brought this action in a 'Justice’s Court for ■compensation allowed by § 9, of said Act and the Justice ■dismissed the action on the ground that said Act was wholly…

Liability of Administrator — Amendments to Pleadings. Civil ACTION, tried at Fall Term, 1876, of RANDOLPH Superior Court, before Kerr, J. Ilis Honor, by consent of the parties, found the facts to-be as follows: In 1864 or 1865, the County of Randolph became indebted to sundry citizens of Alamance County, including the Sheriff, Jailor and Cleric of the Superior Court,, in the sum of $441.85 for costs and jail fees, incurred'by the removal of the case of State v. Modlin and…

<p> Partnership — General and Speeial. </p> <p>Civil ACTION tried at Fall Term, 1876, of Cabaskus Superior Court, before Schenek, J.</p> <p>■ The action was brought by the plaintiffs against the defendant as one of the firm of Bernheim & Waring, for goods sold and delivered to Waring, the other member of the firm.</p> <p>The points raised and decided in this Court upon the facts in the case and the objections to the charge of Iiis Honor in the Court below, are so fully stated in the opinion delivered by Mr. -Justice Reade, as to render any further statement unnecessary. Verdict for defendant. Judgment. Appeal by plaintiffs.</p>

<p>1. Possession of land retained by a grantor not indebted, is evidence’ either that he did not execute the alleged deed inconsistent with such possession, or that if he did, it was upon a secret trust for himself.</p> <p>2. When the fact of possession of land is competent evidence, any acts or declarations of the possessor are also competent as characterizing his. possession.</p> <p>3. One who has been in business as a Clerk and also been Clerk of Court, and Sheriff, and who testilies that he has been frequently called on to. examine signatures, is a competent witness as an expert in the matter of handwriting</p> <p>4. Where on the trial below such witness was permitted to compare the signature of a subscribing witness to an alleged deed, with the signature of such subscribing witness to a deposition admitted to be genuine, and thereupon testified that the signature to the deed was not genuine. Held, not to be error.</p> <p>{Kirby v. Hasten, 70 JSÍ. C. 540; Horton v. Green, 64 N. O. 64; S‘'i,te V. Gheelc, 13 Tre. 114; States. Jacobs, 6 Jones. 284; Outlaws. Hurdle^ 1 Jones, 150, cited and approved.)</p>

<p> Practice — Taxation of Costs -- Fees of Referees. </p> <p>Civil ActioN, on an Administrator’s Bond, tried-at Fall. Term, 1876, of Richmond Superior Court, before Burches, J.</p> <p>The facts are substantially as follows : One John P. Cov-ington died in Richmond County in 1857, leaving the plaintiffs Virginia Covington, (now Stewart,) 11. B. Covington and John P. Covington (a minor) his heirs at law and distribu-tees. Soon after his death, the defendant James A. Coving-Ton was appointed aud qualified as his administrator and executed a'bond with one John W. Leak (testator of the other defendant) as surety.</p> <p>This suit was brought on said, bond by Wall and Leak Executors of one Mial Wall, (who was the former guardian of the children of said John P.'Covington deceased) and the other plaintiffs'above named.</p> <p>An order was made in the case, directing D. Stewart the-Clerk of said Court to state an account, which was subsequently returned and confirmed and judgment entered accordingly in favor of the plaintiffs. It was further ordered that said Clerk be allowed $250 for stating said account, one half to be paid by defendants and the other half by plaintiffs. The plaintiffs insisted that they were not chargeable with any part of the costs, and that said allowance should therefore be taxed against defendants. His Honor ruled otherwise and the plaintiffs appealed.</p>

■County Commissioners ~ Necessary Expenses of County — Parties. This was a CONTROVERSY submitted without action under the Code of Civil Procedure and heard on the 17th of October, 1876, at Chambers, before Moore, J. Upon application of citizens of Washington and Choco-Avinity Townships in Beaufort county, the defendant Board of Commissioners declared that a free bridge across Pamlico river at the town of Washington, was a public necessity and a proper charge of said county.

Jurisdiction— Overseer of Western Turnpike Road— Neglect'of Duty. INDICTMENT for Misdemeanor, tried at Fall Term, 1876, of Jackson Superior Court, before Gannon, J The defendant was overseer of a public road and charged with neglect of duty. Laws 1868-’9, ch. 81, § 4.

Ejeetment — Execution Sale — Evidenee — Practiee —Deed— Covenants. ' Civil ActioN, for the recovery of possession of real estate tried at Eall Term, 1875, of AlamaNce Superior Court, before Kerr, J. The facts are sufficiently stated by Mr, Justice Rodman, in delivering the opinion of this Court.

Will — Abatement of Legacies. Special PROCEEDING commenced in the Probate Court of Halifax County, and hoard on appeal ou the 18th day of… Held: that all the legacies in the 1st and 5th clauses of said will should abate ratably until a fund sufficient to pay the debts be raised and that the defendants . \legatees) divide ratably with the plaintiff Martlia the fund provided in the 1st clause, reduced by its .proper assessment to pay debts, in the same proportion as if there…

<p> Evidenee — Explanation of paper writing. </p> <p>’ Civil.Action, tried at Fall Term, 1876, of Craven Superior Court, before Seymour, J.</p> <p>The plaintiff alleged that the defendant was indebted to* him in the sum of $298, and to establish his claim, relied.on» .an instrument of writing, of which the following is a copy : “ For and in consideration of the sum of $298 I hereby transfer and assign to N Beckwith a certain judgment obtained d>y A. Wade plaintiff against B. A. Easley (and others) in the County Court of Craven at March Term, 186 l, and authorize said Beckwith to settle with the trustees of B. A. Easley therefor. The amount of said judgment at its date was $5,156, of which $±,700 was principal money, the same being the amount of a debt specified in a certain deed of trust from B. A. Easley to E. II Sanderson and t>. B. Gibbs, Rated February 18, 1861, among the first-class of creditors.” .Signed A. Wade, by D M.. Carter, his attorney, and dated March 8, 1873.</p> <p>There was evidence tending to show that plaintiff had a suit .against M.-s. Easley for a house in the city of Newbern and also held a judgment against her husband ; that plaintiff ■employed defendant to get a release from her of said house .-and authorized him to release said judgment; that the money paid by B ckwith was not in consideration of the assignment, but was money arising from the trust fund and belonged to all the creditors, the plaintiff being one of them; that upon the release of said judgment and payment of the money by Beckwith, lie (Beckwith) transferred to Mrs. Eusley, his interest in the real estate bought by him at a sale by her trustees; that said judgment was worthless except about $30 its pro rata share in said trust fund. The Court charged the jury, that if they believed from the evidence that the m >aey was paid to defendant- for the purchase -of the judgment of Wade, the plaintiff would be entitled to ;-a verdict. Th it if Beckwith paid to defendant the money belonging to, the trust fund, they should find for the defendant. That in making up their minds upon that subject they would consider the assignors it, signed by defendant, but -that that assignment was not conclusive. The plaintiff excepted. The jury rendered a verdict for the defendant.. Judgment. Appeal by plaintiff.</p>

Evidence ~ Character — Legitimacy. ■ Civil ACTION, tried at Fall Term, 1876, of Catawba Superior Court, before Buxton, J. Tbe ease substantially states the following : E. T. Warlick the beneficial plaintiff claimed title to an undivided half of a tract of land which formerly belonged to Joseph Carpenter, deceased. Plaintiff claimed as assignee of Mrs. Catharine Eaton, the sister and only heir-at-law of said Carpenter.

Mandamus — County Commissioners -- Canvass of Votes. PetitioN for a writ of Mandamus against the Commissioners of GRANVILLE County, heard at Chambers in Erank-linton on the 29th day of November, 1876, before Watts, J. The summons was issued on the 27th day of November, 1876, against Richard D. Jones, Charles B. Cole Andrew Williams, Albert Wycheand Braxton Hunt, Commissioners, and James B Crews, John Morgan, James B. Hobgood and Elijah C. Montague.

Mandamus — Canvass of Votes — Restraining Order. Appeal from a Restraining Order made at Chambers in Franklin ton on the 14th day of December, 1876, by Watts, X Thq defendant Cómmissioners declared the defendant James B. Crews elected Sheriff of Granville ( ounty at an election held on the 7th day of November, 1876, and the defendants James B Hobgood, John Morgan and Elijah C.. Montague, each elected to the office of ( ounty ('ommissioner at said election.

Restraining order -- Bond. Appeal from an Order made at Chambers in Eranklinton on the 14th day of December, 1876, by Watts, J. Upon granting the restraining order as stated in the preceding case Ilis Honor also required the plaintiffs to execute a bond for costs, damages, &e. to the defendants, from •which the plaintiffs appealed.

Homestead — Assessment. Civil ActioN tried at Fall Term, J 875, of IIalieax Superior Court, before Watts, J. The plaintiff recovered a judgment against the defendants, execution issued thereon and the homestead of the judgment debtor was laid off.

Partition — Tenant ly the eurtesy. Special Proceeding commenced before the Clerk of the Superior Court of Randolph County, and heard at Pall Term, 1876, of said Court, before Kerr, J. 'William Rains died in Randolph County in 1864. Pie devised bis lands by will to his wife Milly for life, remainder to America and Caroline, his daughters. America married the defendant, O. C. Siler.

Indictment — Master and Servant. INDICTMENT for Misdemeanor, tried at Fall Term, 1876, of Row AN Superior Court, before Cloud, J. The counsel for the defendant in the Court below moved to quash the bill of indictment, on the ground that the recitals therein did not constitute an indictable offence, either at common law or by statute. His Honor allowed the motion and the Solicitor for the State appealed.

Jurisdiction — Indictment. INDICTMENT for stealing corn growing and remaining un-gathered iu a certain field, tried at Pall Term, 1876, of An-son Superior Court, before Furches, J. The counsel for defendant in the Court below moved to dismiss the case upon the ground that the Superior Court fiad no jurisdiction of the offence charged in the bill of indictment. His Honor overruled the motion and the defendant appealed.

Indietment — Constable — Negleet of duty. INDICTMENT for Misdemeanor under the statute (Bat. Rev. ch. 32, § 107,i tried at Fall Term, 1876, of Yancey Superior Court, before Henry. J. Upon affidavit before a Justice, a Peace Warrant was issued and placed in the hands of defendant, a Constable, directing him to execute it upon one Austin.

Statute — Repeal of — Claim Against the State. Claim against The State heard at January Term, 1877, ■of the Supreme Court, under Art. IY, § 9 of the Constitution.

' Pleading — Discharge in Bankruptcy. MotioN in the canse heard at Eall Term, 1876, of Gran-ville Superior Court, before Watts, J. The defenclaut Samuel R. Hunt was adjudged a bankrupt in 1868 and on the 21st May, 1869, obtained his discharge in bankruptcy. At Fall Term, 1875, of said Court he moved that he be allowed to plead his discharge, which motion was continued from term to term and heard at Eall Term, 1876.

Indietment — Fcrnieation and Adultery — Witness. IkdictmeNt against the defendant and Margaret Locklear for Fornication and Adultery, tried at Fall Term, 1876, of GuileoRD Superior Court, before Kerr, J. On the trial of the case, the Solicitor for the State entered a noil. pros. as to Margaret Locklear and introduced her as a witness against the defendant who objected on the ground that she was incompetent.

Practice — Supreme Court — Record. Civil ActioN to recover possession of land, tried at Eall Term, 1876, of Polii Superior Court, before Schenck, J. In consequence of an imperfect record there was no decision upon the merits and the case was rema..ded to the Court below.

Contract— Principal ancl Surety — Agreement to Forbear. Civil ActioN tried at Fall Term, 1876, of CabarRüs Superior Court, before Schenck, J. The plaintiff demanded payment of a note for $1,100 made payable to himself and signed by Julius Israel, principal, and R. S. Harris and I). Gr. Holbrooks, sureties. The note was dated Nov. 2, 1872, bearing interest thirty days after date at eight per cent.

Indictment — Attempt to Commit Rape. INDICTMENT for Rape, tried at Fall Term, 1876, of Meck-lenburg Superior Court, before Schenck, J. The ease is so fully discussed by Mr. Justice Reade in delivering the opinion of this Court, that any farther statement is deemed' unnecessary. cited, State v. Sam, 1 Winst. 300; State v. Burgess, 74 N. C. 272 ; State v. Farmer, 4 Ire. 224, and East. 435.

Grant — Construction of — Taxation. PETITION to' remit the tax assessed by defendants upon the real estate of plaintiffs, heard at Eall Term, 1876, of Alamance Superior Court, before Kerr, J. The plaintiff company in their petition alleged that they were the lessees of the North Carolina Railroad Company, and as such were entitled to all the rights and privileges granted in the charter of the last named company ; that the Board of Trustees of Graham Township in said County…

Evidence — General Reputation. IndxctmbNT for Rape, tried at Eall Term, 1876, of Caldwell Superior Court, before Buxton J. The only question decided by this Court was one of evidence which arose in consequence of the admission of testimony relating to the character of defendant.

Praetiee — Statute of limitations. Civil ActioN, tried at Fall Term, 1876, of Hedele Superior Court, before Buxton, J. This suit was commenced in the lifetime of John J. Shuford the intestate of defendant.

Indictment — Larceny — Evidence — Witness. INDICTMENT for Larceny, tried at Eall Term, 1876, of Beau-KOR.T Superior Court, before Moore, J. The defendant was charged with stealing seed cotton belonging to one Ilenry R. Woodard. It appeared from .the; evidence of Woodard and one Jackson, that the day after the cotton was lost, Woodard the prosecutor traced seed cotton along a private path leading from his house to that of defendant, up to 150 yards of defendant’s house.

Contract — Negotiable Instrument -- Certificate of Deposit. Civil Action tried at Fall Term, 1876, of Davidson Superior Court, before Cloud, J. The action was brought on, a Certificate of Deposit, the-material part of which is as follows : “This is to certify that Johu E. Shoup has deposited in the Greensboro Mutual Life Insurance and Trust Company three hundred and fifty dollars which will be paid to him on ten days notice with interest, &c. in current funds on the return…

<p>"¡The' term ■ “Conviction” in Art. Ill, § 6, of the Constitution denotes a verdict of guilty rendered by a jury ; Therefore, when the defendant, after verdict and judgment in the Court below, appealed to this Court ¡and pending such appeal was pardoned by the Governor; Held, that such pardon is authorized by the Constitution and is valid. i£(Pe ARSON, C. J Dissenting.)</p> <p>/¡(State v. Melntire, 1 Jones 1, cited, distinguished and approved.)</p>

INDICTMENT for Receiving Stolen Goods, tried at Spring Term, 1876, of Cabarrus Superior Court, before Schenck, J. The jury rendered a verdict of guilty and the defendant was sentenced to imprisonment in the Penitentiary for a term of two years at hard labor. The defendant appealed, and during the pendency of the appeal, filed a plea of Pardon granted by Gov. Brogden on the 30th of October, 1876.

INDICTMENT for Staying an Election, (Bat. Rev. ch. 32, § 39,) tried at Spring Term, 1876,' of Columbus Superior Court, before McKoy, J. The Bill of Indictment was found in New Hanover, and the case was removed to Brunswick, thence to Columbus. The jury rendered a verdict of' guilty. Judgment that defendant be imprisoned in the common jail of Columbus County for three months. There were no exceptions to the ruling of the Court.

Indictment for Riot against the defendant and. twelve others, removed from New Hanover County , and tried at lEall Term, 1876, of Columbus Superior Court, before Mc-.Koy, J. The jury rendered a verdict of guilty and the Court gave judgment that the defendant be imprisoned in the Penitentiary at hard labor for a term of three years and pay a fine of five hundred dollars. .

<p>1. A mairiage, solemnized in a State whose laws permit such marriage,' between a negro and a white person domiciled in such State, is valid in. this State.</p> <p>2. The domieil of the husband becomes that also of the wife upon marriage.</p> <p>3. In an indictment for fornication and adultery where the feme defendant (a white woman) left this State for the purpose of evading its laws; in consummating a marriage with her co-defendant (a negro) but with no intent to return, and afterwards both of them came to this State tc> reside; field, that the defendants were not guilty.</p> <p>{Reade and Bynum, JJ. Dissenting.)</p> <p>(Hides v. Skinner, 71 N. 0. 539; same case, 72 N. 0. 1 ; Williams v Oates.., 5 Ire. 535 ; cited, distinguished and approved.)</p>

<p>A marriage, solemnized in a State whose laws permit such marriage, between a negro and a white person domiciled in this State and who leave it for the purpose of evading its laws and with intent to return, is not valid in this State.</p> <p>((Williams v. Oates, 5 Ire. 535, cited and approved.)</p>

Indictment r- Overseer of Road — Ineurribent of OJfiee,. INDICTMENT against the defendant as Overseer of a Public Road, tried at Fall Term, 1876, of Alexander Superior Court, before Buxton, J. The bill charging that the defendant had neglected to> keep the road over which he was overseer in good repair (Bat.

Evidence — Confessions. INDICTMENT for Larceny tried at Fall Term, 1876, of Guil-EoRD Superior Court, before Kerr, J. The confessions of the defendant were proved by the State as having been made under the following circumstances: The witness (a Deputy Sheriff) accompanied by three other persons, arrested the defendant near the city of Greensboro about 9 o’clock at night and carried him before a Justice of the Peace about a mile from the place of arrest.

<p>1. In an indictment for cheating by false pretences where the defendant,, for “value obtained, delivered cotton to the prosecutrix falsely representing it to bo of the grade of “good middlingHeld, that it is not; an indictable offence, for</p> <p>2. In such case the rule of caveat emptor applies.</p> <p>(Statev. Phifer, 6> N. 0. 321; State v Jones, 7.) N C. 71, cited, distinguished and approved.)</p>

Indictment — Larceny — Euidenee. INDICTMENT for Larceny, tried at Fall Terra, 1876, of Ire-dell Superior Court, before Buxton, J. The bill of indictment charged the defendant with stealing “ one dressed calf skin” and the evidence was that the article-, stolen was a “ kip skin.” The defendant insisted that the variance was fatal but the Court held otherwise. Verdict of guilty. Judgment. Appeal by defendant.

<p>1. When in an action for the recovery of real estate, both the plaintiff" and a third party claim to be the landlord of the defendant, the latter has a right upon affidavit to be let in as a party defendant to the .action.</p> <p>2. In such case if a judgment by default is taken against the tenant,, no writ of possession can issue until the determination of the controversy between the plaintiff and the interpleading defendant.</p> <p>3. If such application to be made a party is denied, the applicant is a. “party aggrieved” for all the purposes of an appeal, under § 299, 0. C. P.</p> <p>(Wise v. Wheeler, 6 Ire. 196 ; Harhey v. Houston. 65 N. 0.137, cited and approved.)</p>

Aetion to Recover Real Estate--Eviction of Tenant — Practise. Civil ActioN; to recover possession of Real Estate tried at Eall Term, 1875, of Buncombe Superior Court, before Henry, J. The facts in this case are the same as in the preceding case.

Landlord and Tenant Aet — Appeal from Justice’s Court — Practice. Civil Action to recover possession of Real Estate, tried at Fall term, 1875, of BüNcombe Superior Court, before Henry, J. The facts in this ease are the same as in the case of P; Hollins v. Ham Rollins, ante. • ,

Judgment — Vacation of — Inexcusable Negleet. MotioN, to vacate a Judgment taken by default, made by the defendants and heard at Chambers in Asheville on the^ 29th day of December, 1876, .before Henry J. Upon the facts which sufficiently appear in the opinion». His Honor adjudged that the motion be allowed to the end that the defendants might file an answer and defend the/ action at the ensuing term of the Court. From this judgment the plaintiff appealed.

Taxation — County Commissioners — Duties and Powers — Contract by County.

Negligence — Liability of County -- Judge’s Charge. Civil ActioN for Damages, tried at Spring Term, 1876, of WilsoN Superior Court, before Kerr, J. The action was brought to the Superior Court of Greene .and removed to Wilson. The plaintiff claimed damages of the defendants for injuries received in consequence of their •failure to construct and keep in repair a public bridge across Nahunta Creek in Greene County.

Court of Equity--Practice-- Usurious Contracts. MotioN to dissolve an Injunction, heard at Chambers on the 10th day of November, 1876, before Cloud, J. . The plaintiffs alleged that in January, 1874, they executed a note for $321.52, with interest at 10 per cent, to Thomas E. Brown one of the defendants, and to secure the payment thereof executed a mortgage deed to defendant Bingham conveying certain lands in Rowan County, being the homestead of plaintiffs.

County Court of Granville — Sale of Land for Partition. Civil ActioN to recover possession of Real Estate, tried! at August Special Term, 1876, of G-raNVIlle Superior Court,, before Seymour, J. The plaintiffs are heirs at law of one Charles Allen, who-died intestate in the year 1858, in possession of the land in-controversy.

Homestead — Failure of Lien. Civil Action, for the recovery of Land, tried at Fall Term,, 1876, of Wayne Superior Court, before Seymour, J. The action was brought to the Superior Court of Duplim County and removed to Wayne. The plaintiff claimed under a deed executed by the Sheriff of Duplin, and introduced a transcript of a judgment;, rendered at Fall Term, 1867, of the Superior Court of saidl County in an action wherein Jere.

<p>1. In an action against several defendants whose liability is joint and whose interest in the action is identical, the defendants will not be permitted to sever in their defence.</p> <p>!2. A demurrer, which in order to sustain itself invokes the aid of a fact not appearing upon the complaint must be overruled.</p> <p>{Suggestions by Pearson, O. J, to Clerks of the Superior Courts upon the manner of making up records on appeal to the Supreme Court.)</p> <p>(Von Glahn v. Harris, 73 N. C. 323, cited and approved )</p>

Practice — New Trial — Absence of Witness. Civil Actioh, tried at August Special Term, 1876, of '«G-RANVILle Superior Court, before Seymour, J. On the trial in the Court below the plaintiff read his complaint and the defendant his answer and each rested his «■case. Under instructions of the Court the jury found a special yerdict in favor of plaintiff for $562.16 subject to the opinion ■of His Honor.

Braining Wet Lands — Constitutionality of Aet. This was a PROCEEDING under the Act concerning “Draining Wet Lands” (Bat. Rev. ch. 39.) heard at Pali Term,. 1876, of Rowan Superior Court, before Cloud, J. The action was instituted before the County Commissioners and brought by appeal to the Superior Court.

Administrator — Sale of Land for Assets — Special Proceeding. This was a Special PROCEEDING! had before the Clerk of the Superior Court of CraveN County the object of which was to obtain an order to sell real estate for assets.

Arbitration and Award — Praetiee. Civil ActioN, tried at a Special Term of Halifax Superior Court (held in June, 1876,)-before Watts, J. The plaintiffs, residents of the City of Baltimore, were engaged in the manufacture of commercial fertilizers and the defendant a merchant residing in said County had been acting as their agent for the sale of the same.

<p>1. Where a debtor whose real estate is encumbered with a judgment lien sells a portion of it. a judgment creditor who has a lien upon the whole land is compelled to exhaust the unsold portion for the satisfaction of his judgment before resorting to that which has been sold.</p> <p>2. This however is nut to be done when it trenches upon the rights or operates to the prejudice of such judgment creditor.</p> <p>3. So where A obtained judgment against two partners and under execution issued thereon certain real estate (alleged to be the property of the partners', which allegation was not sufficiently denied in the answer) was sold by the Sheriff who held the proceeds of sale; Held, in an action by B (who had purchased from the partners certain other real estate <m which the lien of A’s judgment rested) to restrain A from selling under his execution the land purchased by plaintiff, that A should be restrained from selling until an account could be taken of the fund in the hands of the Sheriff and a distribution made of the same, so as to ascertain whether or not A’s judgment would be satisfied therefrom.</p> <p>(Roberts v. Oldham, (13 N 0. 297, cited and approved )</p>

Purchaser for Value Without Notice. Civil ActioN, tried at Fall Term, 1875, of ANSON Superior Court before Buxton, J. By consent of parties Ilis Honor found the facts to be substantially as follows: The plaintiff executed a lease to defendant, Francis Lynch, on the 25th of November, 1861.

Usury — Compound interest r- Evidence. Civil ActioN, tried at Spring Term, 1876, of RANDOLPH Superior Court, before Kerr, J. The plaintiff demanded payment of $2,696.99, due by several notes. The defendant admitted the execution of the notes, but resisted payment upon the ground that the contract was usurious.

County — Liability for Board of Jury — for Pay of Witnesses. Civil Action, commenced before a Justice of the Peace in BüNCOMBE County and taken by appeal to the Superior ■'Court, heard at Chambers on the 23rd of January, 1877, before Ifenry, J. 1. During a trial for a capital felony at Spring Term, 1876, • ■of said Court the plaintiff furnished the jury with board for -six days.

Contract — Seale — Confederate Curreney. Civil ActioN, tried at Fall Term, 1875, of WilsoN Superior Court, before Seymour, J. This action was commenced in a Justice’s Court by the plaintiff against the defendants for the recovery of $158 and earned by appeal to the Superior Court. The plaintiff held a note against one D. W. Eure for said sum dated September 20th, IS JO.

Negligence — Liability of Master — Judge’s Charge? Civil ActioN, tried at Eall Term, 1876, of Forsythe Superior Court before Kerr, J. The plaintiff was a brakesman on that portion of defendant’s road known as the North Western N. C. Rail Road,, and while in the discharge of his duty as such was badly and permanently crippled by a defective engine and road bed of defendant company. This action was brought to recover damages for the injuries so received.

Practice in Supreme Court — Feigned Issue. Civil ActioN, tried at Fall Term, 1875, of Wake Superior Court before Henry, J. The action was commenced in a Justice’s Court and taken by appeal to the Superior Court and the facts wrere found to be as follows: That the plaintiff in June, 1874, entered into an agreement with defendant, to-wit; “ For and in consideration of' one dollar paid by said Askew to said Blake and in farther consideration of the mutual promise herein set…

<p>.1. Where an administrator loans money belonging to the estate of his intestate to the husband of one of the next of kin, and takes a note with the understanding that it' is to be accepted as part of his wife’s distributive share on final settlement; Held, that there is no presumption of law that the transaction is fraudulent.</p> <p>-2. The practice of granting judgment non obstante veredicto is very restricted and is confined to cases where a plea confesses a'cause of action and the mutter relied upon in avoidance is insufficient.</p> <p>,,(Arrington v. Yarborough, 1 Jones Eq, 72, cited and approved.)</p>

<p>a. Whore a parent conveyed to his child by a deed of gift certain personal property, the deed setting out that it was “an absolute gift and intended as an advancement and was not to be accounted for in the distribution of his estate, ” and afterwards died intestate; Held, that the value of said property is not to be accounted for as an advancement in the distribution of the parent’s estate.</p> <p>2. A deed of gift made by a husband (who dies intestate) with intent to •defeat the right of his wife to a distributive share of his personal estate is not void.</p>

Mortgage of Personal Property — Possession of Mortgagor — Presumptive Fraud. Held: that Hawkins & Co. were entitled to retain the money paid under order of Court in the case of said Young & Co. against Harris and others, and adjudged that the defendants in this case recover their costs. From which judgment the plaintiff appealed.

<p>1. When a bank receives a check for collection and retains it for four days without presenting it for payment or making any effort for its collection or giving any notice to the depositor of its 'non-payment, the bank is liable if loss thereby ensues.</p> <p>2. In such case a promise thereafter made by the depositor to pay to the bank the amount due by reason of the loss, is nudum pactum.</p> <p>S. When paper is placed in the hands of a bank for collection, the bank must take the necessary steps to secure its prompt pajnaent by presentation at maturity. If it is not paid, the bank, in order to fix the liabili- ■ ty of the drawer, must have it protested and due notice of its dishonor ■given to the depositor. If it is not presented, the fact that if it had been presented it would not have been paid, does not excuse the liability of the bank.</p> <p>4. When one voluntarily assumes an agency or trust to manage the interests of another, such agent will not be allowed to sacrifice the interests of his principal to his own; Therefore, when a bank received a check upon itself for collection, being at the same time a large creditor of the drawer, and failed without excuse to notify the depositor of the non-payment of the chock ; Held, to be in law, negligence.</p> <p>5. In such case the bank made the check its own and is fixed with its full amount. •</p> <p>(Costin v. Rankin, 3 Jones, 387 ; Stowe v Bank of Cape Fear, 3 Dev. 408, cited and approved.)</p>

Construction of Bond — Parol Evidence Inadmissible to Vary Written Contract. Civil ActioN, tried at Fall Term, 1875, of MecKleNbüRG Superior Court; before Schenck, J. The suit was brought to sell land for. partition among the parties, plaintiffs and defendants, as tenants in common. By-virtue of a decree in the cause the land was sold and a part of it was bought by the defendant T. T. Sandifer, who gave notes for the purchase money.

Slander— Damages. Civil Actios, tried at Pall Term, 1876, of Forsythe Superior Court, before Kerr, J. ' This was an actiou of Slander to recover damages for injury to the plaintiff’s character and the material -facts are as follows; The defendant on the 4th day of August, 1870, said of the plaintiff’. “He is a perjured man.

■Judge’s Charge — Prayer for Instructions. Civil Action, tried at Eall Term, 1876, of Forsythe Superior Court, before Kerr, J- The plaintiff demanded payment of $300, balance' due ora. a bond given for the purchase money of a tract of land.

Contract — Liability of One Maliciously Causing Breach of. Civil Action, tried at Fall Term, 1875, of Craven Supe, xior Court-, before Seymour, J. The suit was brought 'to recover damages of the defendant for breach of contract. The facts necessary to an understanding of the points decided are sufficiently stated in the opinion of this Court. The jury tendered a verdict for the plaintiff for $3,000 upon which judgment was entered.

Contract against the Policy of the Law. Civil AotioN, tried at Fall Term, 1876, of Davie Superior Court, before Kerr, J. This action was brought in a Justice’s Court and taken by appeal to the Superior Court. The plaintiff alleged that the defendant had promised to pay him $25.00 per month for a specified time, “ while the plaintiff continued to carry on a distillery.” The distillery was a licensed one.

Evidence — Judge’s Charge -- Challenges to Jury. Civil ActioN, to recover the Value of a Note given by defendant on the 10th day of September, 1862, tried at Spring Term, 1876, of Nash Superior Court, before Watts, J. It was in evidence that in January, 1862, the plaintiff W. T. Bryan sold to one John W. Earl a tract of land for $3,300 under a verbal contract that Earl was to pay for the same In cotton at ten cents a pound (so far as the amount he had ■on hand would go) and…

Parties— Aetion to Recover Real Estate. MotioN in an Action to recover the possession of Real! Estate brought by I). I). Colgrove against the defendant Koonce, the party in possession, to the Superior Court, of Jones County, heard by Seymour, J. and transmitted to~ this Court in obedience to an order for a Certiorari datéd June 10, 1876.

<p>Administrator — Aeeount. and Settlement — Praetiee.</p> <p>Civil Actios, brought by plaintiff against defendaut as Surety upon the Bond of one John Gf. Uillihay, Administrator de bonis non of George T. Fulcher, tried at Fall Terra, 1876, of PERSON Superior Court, before Kerr, J.</p> <p>The facts appear in the opinion. The defendant filed a demurrer to the plaintiffs complaint, which Ilis Honor sustained and gave judgment that the action be dismissed. Appeal by plaintiff.</p>

Praetiee — Former Judgment. Civil AotioN, tried at Spring Term, 1876, of NORTHAMPTON Superior Court, before Watts, J. The subject matter of this controversy was a tract of land which belonged to Green Stancell who died in said County in the year 1862, leaving a last will and testament.

Parties — Aetion by Guardian. Civil ActioN, tried at Fall Term, 1876, of Cabarrus Superior Court, before Schenck, J. The action was brought on a G-uardian Bond executed by the intestate of defendant, to which the plaintiff guardian was one of the sureties.

Parties — Action ly Personal Representative. Civil ActioN, tried at Spring Term, 1876, of Rutherford. Superior Court, before Schenck, J. The plaintiffs are tlie widow and heirs at law of one William Blankenship, who previous to his death executed a deed for certain lands to the defendant in consideration of about. $1,500, the greater part of which remains due and unpaid, as appears by notes of defendant.

Parties — Appearanee — Trustee and Cestui que Trust. Civil Actior, tried at Fall Terra, 1876, of LINCOLN StT perior Court, before Schench, J. The plaintiff brought this action to recover a tract of land which had belonged to one Marcus Iiarvy. James J. Sample the agent of said Harvy conveyed the same by deed to John B. Harvy, the grantor of the plaintiff.

Attachment — Order of Publication — Serviee of Summons, ATTACHMENT, granted December 27, 1875, at Chambers im Eranklinton, by Watts, J. The plaintiffs alleged that the defendant was indebted to-them in the sum of $381.43 and had removed from this State; to Canada to avoid the serviee of legal process. For irregularities in the proceedings in the Court below the substance; of which is stated in the opinion, the case was not decided upon its merits.

Attachment — Costs and Expenses of — Incompetency of Witness. Civil Action, to recover Damages, tried at January Special Term, 1876, of Cumberland Superior Court, before Bux-ton, J. This action-was commenced on the 6th of June, 1870, by one Moses Haywood, the intestate of plaintiff. The complaint alleged that the defendant, Sheriff of said County, had seized and sold .certain goods of said intestate.

Mortgage Deed — Power of Sale. Motion to dissolve an Injunction, heard at Chambers in Baleioh, on the 13th of October, 1876, before Watts, J. The action was commenced in the Superior Court of Warren County, and the plaintiff obtained an order restraining the defendant from selling certain lands under a power contained in a mortgage deed. The facts stated by the Chief Justioe in delivering the opinion of this Court are sufficient to an understanding of the points decided.

Praetiee — Sale Under Decree of Court — Description of Land — Joinder of Action.

Practice — Report of Referee. Civil ActioN, tried at Fall Term, 1876, of Henderson; Superior Court, before Henry, J. The plaintifl’ demanded the payment of $446.88 and interest, alleged to be due by defendants for merchandise sold •-.and delivered at the request of defendant Nathan McMinn to the other defendants who assumed the payment of said (sum. An answer was filed denying the amount of the debt and 1-an order made to refer the case to M. M. Patton to state an ••account.

Prcietice — Verdict of Jury on Issue■ of Forgery. Civil ActioN, to recover an interest in Land, tried at Eall Term, 1876, of AlexaNder Superior Court, before Buxton, J. The case ivas removed from Wilkes County, and the facts* necessary to an understanding of the opinion, are sufficiently-stated by Mr. Justice Reade. Upon the issues submitted and under the instructions, off the Court below, the jury rendered a verdict for the defendant. Judgment. Appeal by the plaintiff*.

Praetice — Vacation of Judgment. MotioN to set aside a Judgment, heard on the 26th of September, 1876, at Chambersjin Asheville, before Henry, J The plaintiff recovered!judgment against the defendant and others in a Justice’s Court on the 11th of July, 1874, for $137.60, and on the 22nd of said month the defendant gave written notice ©f appeal.

<p>Praetice — Claim and Delivery — Action iy Bailee.</p> <p>Civil ActioN, tried at Fall Term, 1876, of Cleavelakd Superior Court, before Schenck, J.</p> <p>The action was brought to recover possession of a mule or-the price thereof. The plaintiff testified in his own behalf that he lived in South Carolina and in August, 1875, loaned his father the mule to drive to Shelby in said County ; that, the mule was worth $110 and that he had demanded possession of the same before the commencement of this action.</p> <p>lie further testified on cross-examination, that he got the-, mule of one Brown who was his landlord in the Spring of* 1875, and in the ensuing Fall was to pay Brown $30 for the; hire of the mule, or $110 and keep the mule. The amount, paid by plaintiff under this contract was $30.</p> <p>Brown corroborated the statement of plaintiff, and further testified, that the' plaintiff was not to have any right' or title to the mule until he paid for it, if paid for within a-year; that after the mule was taken by defendants, he went to Shelby, claimed the property, demanded possession and made an ineffectual effort to compromise the matter ; that apon his return to his home in South Carolina, he took plaintiff’s note for $110 less $80 (paid as aforesaid' and also took a mortgage on t-lie mule to secure tbe payment of the note.</p> <p>The defendants admitted the taking, dcm md and refusal.</p> <p>TJpon the issue submitted and under the instructions of the Court the jury found “that the plaintiff did not own the mule in controversy in August, 1875.”</p> <p>Judgment for defendants. Appeal by plaintiff. *</p> <p>cited Story on Bailments 93, 91; 2 Kent Com, 5S5; Nicholls v. Bastard, 2 C. M. & R. 659, and Pomeroy on Remedies, &c. 662.</p> <p>cited Greach v. McBae, 5 Jones 122 ; Houston v. Bibbf Ibid, 83 ; Banoick v. Barwick, 11 Ire. 80; Fowue v. Eubank 10 Ire. 421; She yard v H boards, 2 Il.iy. 186; C. C. P. § § 55,177.</p>

Praetiee — Taxation of Costs. MotioN to retax Costs, heard at Fall Term, 1876, of Ons-low Superior Court, before McKoy, J. In a Special Proceeding before the Clerk of said Court to-make the lands of the plaintiff’s intestate, John Mills, assets-for the payments of his debts, the defendants set up title to-said land and were made parties. On the trial of the question of title the jury found that the deed under which defendants claimed was fraudulent.

Practice — Injunction. MotioN to continue an Injunction,' beard on the 28th of December, 1876, at Chambers, before Schenck, J. The plaintiffs are the heirs at law of one John Ilarty. Thomas H. Brem the deceased ancestor of the defendants was administrator of said Ilarty and as such came into possession of a certain amount of money, a part of which was invested in the purchase of a lot in the City of Charlotte for ¡the use and benefit of plaintiffs.

Praetiee — Arbitration — Reference of Action by Attorney. MOTION to confirm an Award as to valuation of land, heard at Fall Term, 1876, of Cabarrus Superior Court, be-fere Schenck, J. The facts bearing on the points decided are; that one James R. Campbell after his marriage with the defendant Sarah E. Gilmer, employed Paul B. Means, Esq. as counsel to represent his interest and that of his wife in this action, which was instituted to obtain a construction of a will in which…

Practice — Amendment of Record -- 'Security for Costs.. Civil , ACTION, tried at a Special Term of the Superior-Court of G-uileórd County (held in December, 1876,) before Kerr, J. The point decided in this Court involved the exercise of' discretionary- power by His Honor in refusing1 to allow the motion of defendants for additional security for the prosecution of the suit. The facts appear in the opinion. The defendants appealed from the ruling of the Court below.

Practice — Records of a Court — Amendment of. MotioN by defendants to restore and amend the Record of the late Coart of Equity, beard at Spring Term, 1876, of' Onslow Superior Court, before McKoy, J. The original proceeding upon which this motion was. based was a petition filed by one A. J. Murrill, wife and others, in the late Court of Equity of said County, asking for the sale and partition of certain lands known as the “Am-brose lands ” In answer to a writ of Certiorari…

Practice — Joinder of Actions — Demurrer. Civil Action, tried at Spring Term, 1876, of Ruthereori> Superior Court, before Schenck, J. The plaintiff's in this ease are R. W. Logan and George W. Logan, and the defendants are three in number, to-wit, A. D. X.'Wallis, W. 0. Wallis, and R. J. Williams. The complaint states five causes of action in respect to which it demanded relief. 1. Eor the rent of a house at Chimney Rock which George W. Logan demised to A. I). X. Wallis. 2.

<p>Practice — Judgment Against■ Municipal Corporation — ImpeaehmewC of — Taxation by City or Town — Extending^Streets Thereof — Charter of Town of Henderson.</p> <p>Civil Action, tried at a Special Term of Granville Superior Court, (held in. August, 1876,) before Seymour, J.</p> <p>The Commissioners of the Town of Henderson caused at street to be opened in said Town and for that purpose condemned a portion of the land belonging to one George B-Reavis. A committee of appraisers reported that the value -of the land so condemned was $50, which was tendered to and refused by said Reavis. The amount was then deposited in the office of the Clerk of said Court for the use of said Reavis, who appealed from the action of the Commissioners to the Superior Court. At Rail Term, 1873, the case -was referred by consent to John W. Hays, Esq., and in accordance with his report filed at'^Spring Term, 1874,^ judgment was rendered in favor of said Reavis and against said Town for $450. At Spring Term, 1875, upon petition of said Reavis a peremptory mandamus was granted commanding the Commissioners of said Town to levy and collect a tax for the purpose of paying said $450 and interest and costs, and thereupon said Commissioners appointed a Board of three Assessors to value the real estate in said Town. On the 24th of May, 1876, upon such valuation, a tax of 75 cents •on the $100 worth of real estate was levied, which was greater in amount than that levied by the Township Trustees •on the same property. They also levied a tax of 25 cents on •each $100 worth of merchandise purchased for twelve months prior to May 1st,' 1876, and $2.00 on the poll.</p> <p>Oa the 8th of June, 1876, the plaintiffs suing in their own ‘behalf and also in behalf of other citizens and tax-payers of «aid town, obtained from IIis Honor,'Judge Watts, an order restraining the defendants from proceeding in the collection ■of the taxes levied as aforesaid.</p> <p>At the August Term of the Court, His Honor, Judge Seymour, on motion of defendants, vacated the restraining order •of Judge Watts, except as to the tax of 75 cents on the $100 worth of real estate, and as to that ordered that the defendants collect a tax of 75 cents on the $100 as valued by the Board of Township Trustees. Erom this judgment the plaintiff’s appealed.</p>

Statute of Limitations — New Pomise. Civil AotioN, tried at Fall Term, 1876, of WayNE Supe-Tior Court, before Seymour, J. The suit was brought to recover the amount of a medical ■bill against the testator of defendant, running from 1854 to 1861. The defendant relied on the statute of limitations. {See 72 N. C. 405.) ITis Honor held that the statute was no bar to any part of plaintiff's claim. Judgment. Appeal by defendant.

Bond — Evidenee — Confederate Currency. Civil Actiok, to recover tbe Value of a Note, tiled at-December Term, 1876, of Guilford Superior Court, before-Kerr, J. (Eor the facts in this case, see same case, reported in 72. N. C. 519.)

Attachment — Sufficiency of Affidavit. MotioN to vacate a 'Warrant of Attachment, heard at Fall Term, 1876, of SuRRY Superior Court, before Cloud, J. The motion was made by the defendant upon the ground ■ of insufficiency of the affidavit of plaintiff. The affidavit is . as follows: “W. A. Moore agent of the plaintiffs above named being ■ duly sworn says ; 1. That defendant Thomas M. Brower is indebted to plaintiffs in the sum of $780.60 due by bonds. 2.

Homestead — Purchase at Execution Sale. Civil AotioN to recover the possession of Real Estate,, tried at Spring Term, 1876, of Moose Superior Court, before-.

<p> Divorce — A mensa et thoro — Suffieieney of Euidenee. </p> <p>Civil ActioN for Divorce a mensa et thoro, brought by the plaintiff against the defendant and tried at Spring Term, 1876, of ITeb,tk>R,d Superior Court, before Moore, J.</p> <p>Upon the facts in the cRse, which are sufficiently stated in the opinion, ITis Honor held that admitting them to-be true they did not constitute a sufficient cause for Divorce a men-sa et thoro, and thereupon the plaintiff submitted to anon-suit and appealed.</p>

Contract — Confederate Currency. Civil ActioN, tried at Spring Term, 1876, of Yadkin Superior Court, before Glond, J. This action was commenced in a Justice’s Court and was founded upon an instrument of writing of which the following is a copy: “Twelve months after date, we, or either of us promise to pay Samuel Johnson the sum of one hundred and ninety-nine dollars and fifty-two cents, in the common currency of •the country, that which will pay tax, for value received of…

Contingent Remainder — Power of Court to Sell Land. Civil ActioN, tried at Eall Term, 1876, of Craves Superior Court, before Seymour, J. • The action was brought to obtain an order to sell a certain house and lot in the City of Newbern.

<p>1. Whether a gift by a parent is an “advancement” or not. depends upon the intention of the parent at the time the gift is made.</p> <p>2. A gift, absolute when it is made, cannot be convertel into an advancement b3' any subsequent statement of a wish to that effect by the parent, short of a legally executed will.</p> <p>3. As a general rule money expended in the education of a child is presumed not to bean “advancement ”</p> <p>(Meadows v. Meadoios, 11 ire 148, cited and approved )</p>

<p>Evidence — Negotiable Instrument — Action by Endorsee — Date — Possession by Endorsee.</p> <p>Civil ActioN, brought by the plaintiff as Endorsee of a Promissory Note, tried at a Special Term of GRANville Superior Court, (August, 1876) before Seymour, J.</p> <p>By consent of the parties, His Honor found the facts (iVhich are substantially set out by Mr. Justice Bynum in 'delivering the opinion of this Court) and adjudged;</p> <p>1. That plaintiff was the owner of and entitled to maintain this action upon the note sued on.</p> <p>2. That said note in the hands of plaintiff is not subject to any acuities between defendant and the payee thereof.</p> <p>3. That plaintiff have judgment for $625.00 and interest and costs.</p> <p>From this judgment the defendant Cozart appealed.</p>

Negligence— Failure of Sail Road Company to Provide Brahes — Injury to Stoeh — Contributory Negligence. Civil Action to recover Damages of the defendant Company for killing two mules belonging to the plaintiff, tried at Eall Term, 1876, of CRAVEN Superior Court, before Seymour, J. The defendant admitted that the mules were killed by a-freight train as alleged, but insisted that the accident was-unavoidable.

County Commissioners — Levy of Taxes. Civil ActioN, tried at Fall Term, 1876, of Burke Superior Court, before Henry, J. His Honor made an order restraining the defendants, Sheriff and Board of Commissioners of said County, from the collection of taxes assessed upon the land described in the complaint and alleged to be due. The facts are sufficiently stated by Mr. Justice RodmaN in delivering the opinion of this Court. The defendants appealed from said order.

JEjectment — Natural Boundaries — Conflict of in Grant. Civil AciioN to recover possession of Real Estate, tried at Eall Term, 1876, of IREdell Superior Court, before Bux-ton, J. The facts are stated in Clarke v. Wagner, 74 N. C. 791. Verdict and judgment for defendants.- Appeal by plaintiff.

Trustee — Possession of Land by Equitable Owner.- Civil ActioN to recover possession of Real Estate, tried at Eall Term, 1875, of Cabarrus Superior Court, before j&chenck, J. The plaintiff claimed as… Held: that plaintiff was the owner •of the legal estate subject to the equities of the cestui que trusts under the Camman deed.

Himestead — Waiver by Husband. Civil ActioN, tried at Spring Term, 1875, of Franklin Superior Court, before Watts, J. The complaint states substantially that the plaintiff J. 13.

Deed — Not Valid Without Registration. Civil Actiok, tried at Spring Term, 1876, of Hertford 'Superior Court before Moore, J. In February, 1866, the plaintiff’s intestate, John H. Jerni-gan, bought of one Jacob Sharpe a water mill for the sum ■of $6,850 and obtained a deed in fee simple. He took possession oí the same and expended in repairs, &c., about $1200 of his own funds.

Entry and Grant — Waiver of Entry. Case AGREED, beard at Spring Term, 1876, of Mitohell.-Superior Court, before Henry, J. The following are the material facts in this case, viz The defendant and one E. A. Hall (deceased ancestor of plaintiffs) had an entry made for a tract of land on the books of the Entry Taker in Mitchell County in their joint names, the defendant paying the Entry Taker’s fee and Hall agreeing to reimburse him one half of fees, which he never did.

■ Action for Diverting Water — Evidence. Civil Aotion for Damages, tried at Fall Term, 1876, of Moore Superior Court, before Furches, J. This action was instituted in Cumberland and on affidavit of plaintiff removed to Moore.

<p>Contract of Sale — Vendee’s Interest Therein — Trustee — Misapplication of Trust Fund — Liability of One Who Participates.</p> <p>Civil ActioN, tried at Fall Term, 1876, of Guilfokd Superior Court, before Kerr, J.</p> <p>The plaintiffs alleged that theretofore the firm of Shields- & Co. owned certain premises (mentioned in the complaint,) and were conducting a licensed distillery thereon. They became indebted to the government for taxes and said premises were sold at public auction for cash on the 27th of May, 1871, when the defendant Owen became the purchaser in the sum of $2700. In order to raise the money to> pay his bid he borrowed said amount of the plaintiff, upon the execution of an instrument of writing, of which the following is a copy: ,</p> <p>“This instrument witnesseth, that whereas on the 27th of May, 1871, the premises of the ‘Greensboro Steam Distillery’ — about five acres of land with improvements, steam-engine, boilers, &c. — were sold by order of C. S. Winstead r Collector of Internal Revenue, on account of taxes assessed . upon Shields & Co., the proprietors and owners of said property ; and whereas, Thomas M. Owen became the purchaser .at $2700 ; and whereas, the Bank of Greensboro did advance and lend to me, for the purpose of payiug for said property,, the said sum of §2700, as per my note of this date ; Therefore, I do hereby assign, transfer and make over to said. Rank, my bid for, and right, title and interest in said property, as a guaranty for the payment of said note. And said Collector or his successor in office is hereby empowered, and requested to make a deed at the twelve months maturity, to the said Bank instead of to me. This instrument to be void in case I discharge said note to the satisfaction of said Bank.</p> <p>Thomas M. Owen.</p> <p>June 1st, 1871.”</p> <p>Knowing that Shields & Co. had the right to redeem their property at any time within twelve months, the defendant Owen, in order more effectually to secure the plaintiff, executed another instrument, of which the following is a copy :</p> <p>“To Mr. O. S. Winstead, Collector, &c. In case Shields- & Co. should redeem the property sold by Thomas M. Owen, Dep. Collector and bought by me, I will thank you to pay the said money to the Bank of Greensboro, as I borrowed the purchase money from the Bank and gave them an instrument transferring my bid ffir and iuterest in said property to secure the payment of my note to said Bank for said purchase money. June 5th, 1871. Thomas M. Owen.”</p> <p>Shields & Co. failed to redeem and thereupon the plaintiff applied to the Collector for a deed but was informed that $835.40 of the purchase money had not been paid by defendant Owen, and that no deed would be executed until it was paid. So the plaintiff paid the amount on the 25th of January, 1875, and obtained' a deed.</p> <p>The plaintiff' insists that it is entitled to hold said property as a security for both of said amounts, $2,700 and $835.40, and demands a sale of the premises to satisfy the same.</p> <p>The defendant Clapp alleged, that under a decree of Court 'in another action whereiu the Executors of one Summers were plaintiffs, and Mrs. Wright and Mrs. Cobb, femes ■covert, were defendants, his co-defendant Owen had been appointed trustee for said femes covert. In that action it was adjudged that the defendants Wright and Cobb, the heirs of said Summers, were entitled to a sum of money to be paid by •said Executors, and that said Owen their trustee should ■execute a deed in trust to the defendant Clapp, who was then the Clerk of said Court, to secure and protect the estate of said femes covert. Accordingly Owen executed the deed to Clapp on the 23d day of May, 1872, conveying the premises hereinbefore mentioned, to the end that such funds as should come into his hands as trustee aforesaid, might be-•secured.</p> <p>The said deed from Owen to Clapp was regisleied on the 11th of September, 1872, and the said instrument from Owen to plaintiff was not registered until the 2d of March, 1876.</p> <p>After the execution of said deed to Clapp, the money to which the said femes covert were entitled as heirs of Summers, was paid to said Owen as their trustee, who still held it by virtue of his appointment as trustee and by his conveying said premises in trust to secure the payment thereof.</p> <p>The defendant Owen paid to plaintiff' an amount sufficient to discharge the said note for $2,700, but the money was not applied to said note as directed by Owen. It was also alleged that the plaintiff contracted for and took from said Owen, usurious interest.</p> <p>The defendant Clapp insisted that said premises should be sold and the proceeds applied to the payment of the amount due from said Owen to said femes covert.</p> <p>The other facts material to the points decided are stated hy the Chief Justioe in delivering the opinion of this Court.</p> <p>The jury rendered a verdict in favor of the plaintiff. Judgment. Appeal by defendants.</p>

Municipal Bonds — Conditions Precedent — Action by Purchaser for Value — Injunction by Tax Payer — Retrospective Statute -- Judge’s Charge — Evidence. This was an ACTION for a Mandamus, to compel the defendants to provide for the payment of certain bonds alleged to have been issued pursuant to law by the County of Eor-.sytlie, tried at Spring Term, 1876, of Davidsok Superior Court, before Cloud, J. The action was commenced in Eorsythe and removed to Davidson.