Volume 77 — North Carolina Reports

CONTROVERSY, submitted without action under C. C. P. § 315, and heard at Fall Term, 1876, of Wayne Superior Court, before Seymour, J. The plaintiffs are the Mayor, Commissioners and Tax-Collector of the Town of Goldsboro. The defendants are lawyers and physicians residing in said Town, and resisted the payment of a monthly tax assessed by the plaintiffs under the power granted in the charter of said Town.

The application of the plaintiffs for an injunction -was* based upon an affidavit stating that they were merchants- is the Town of Goldsboro, and were dealing in a general! variety of groceries including fresh beef; that the defendant commissioners had adopted a town ordinance forbidding the sale of fresh meat except under certain restrictions, t®> the injury of plaintiffs • that the}1- were arrested and fined for a violation of said ordinance and were compelled to suspend'…

Civil ActioN tried at Fall Term, 1876, of AlamaNce Superior Court, before Kerr, J. The facts iri this case are substantially the same as stated in JR. $ JD. ft. JR. Co. v. Com’rs of Alamance, 76 N. C. 212 ; the plaintiffs demanding that certain taxes, illegally paid, be refunded, and the defendants refusing to comply therewith. The judgment given by His Honor in the Court below was in favor of the plaintiffs and the defendants appealed.

On the 19th of July, 1872, the plaintiff bought of the defendant a photographic gallery and fixtures, and an unexpired lease on certain rooms in the City of Charlotte, and the custom and good will of the defendant in his business of photography, for the sum of $1500.

Civil Action, tried at Fall Term, 1876, of Chowan Superior Court, before Eure, J. Richard Paxton died in 1868, in said County, leaving a last will and testament to which the plaintiff, Mrs. E. B. Paxton, qualified as executrix. She is the widow of Richard Paxton .and equally interested with her children, the other plaintiffs, as legatee under said will.

<p>Civil ACTION, in the nature of a Quo Warranto, tried at’• Spring Term, 1877, of New Hanovek Superior Court, before' Seymour, J.</p> <p>The jury found a special verdict as follows: “That said James Heaton, Clerk of the Superior Court and Judge of Probate for the County of New Hanover, was, on Monday the 12th of March, 1877, as specified in the complaint in this1 action, absent from his office in the City of Wilmington and was not present therein at any time between the hours of 9' a. m. and 4 p. m. of that day, the same being the regular office of said Clerk and Probate Judge ; that his failure to attend at said office was not caused by sickness; that during’ said hours, said James Heaton was present in a different-' part of the City at an election there held; that during said, hours the doors of his said office were open and one William JT. G-erken, his Deputy, was pi’esent therein, excepting on© hour from about 1 to 2 p. m; that instructions were left at .said office with said Deputy to the effect following, to-wit i that if any person desired Mr. Heaton to attend to any probate business, be, the deputy, should send for him, or if such person preferred, he, the person desiring to transact business, should be directed to the place where said Heafon, the Clerk, &e. then was; that said Heaton made arrangements for the use of a room during the day for the transaction of probate business, and that various persons who had gone to his office were directed to said room, and that said Heaton there took the acknowledgment of divers deeds, and transacted such probate business as was brought before him; that such persons were informed, that if they desired it, said Heaton should be sent for, hut preferred them to go to the place where he was. Whether the said Heaton has forfeited his office as averred in the plaintiff’s complaint, the jury are ignorant and pray the advice of the Court,-&c.</p> <p>Hpon this special verdict His Honor gave' judgment for the defendant and the plaintiff appealed.</p>

Civil Action, for the Possession of Land, tried at Spring Term, 1877, of Franklin Superior Court, before Buxton, J. On the 16th of April, 1866, one Thomas EC Thomas executed a fee simple deed to a corporation known as the Portia Gold Mining Company, conveying a tract of land and describing it by metes and bounds, and as situated in the County of Franklin.

Civil Action tried at January Term, 1877, of Wayne Superior Court, before Seymour, J. This action was instituted to establish a parol trust and to recover the rents and profits of certain lands mentioned in the pleadings, but as a new trial lias been ordered upon the ground that the case does not set out all the evidence touching the controversy, a statement of the facts is unnecessary. Judgment for the plaintiffs. Appeal by the defendants.

Special ProceediN6, commenced, in the Probate Court of' Lincoln County and removed to and tried at. Eall Term, 1876., .of Catawba Superior Court, before Buxton, J. * The plaintiffs, creditors, filed a petition to sell the land of Henry Canslerl the inféstate, for assets to pay debts.

Motion to dismiss an Appeal from a Justice’s Court, heard. at Spring Term, 1877, of Mecklenburg Superior Court, before Cloud, J. In 1876, the plaintiff brought an action against the defendant before a Justice of the Peace. The summons was returned “executed,” and judgment rendered .in favor of plaintiff. No execution was issued upon the judgment. The defendant failed to appeal foi a considerable time after the ten days which elapsed after the rendition of judgment.

Civil ActioN for Damages tried at Spring Term, 1877, of STANLEY Superior Court, before McKoy, J. It was alleged tliat James, John aud Henry Baker, (minors) were in the employment of the plaintiff by virtue of a contract with their mother, and that the defendant had seduced them from the service of the plaintiff. Issues were submitted upon the evidence, and the jury found ; 1. That the plaintiff did contract for the service of said minors. 2.

Civil ActioN, tried at Spring Term, 1877, of DavidsoN Superior Court, before Kerr, J. At the request of the defendant, the plaintiff and one-Charles Hoover became sureties on a bond given by the defendant to one Mendenhall on the 19th of December, I860,, for the sum of $700, and to indemnify . his sureties from all-loss, the defendant executed to them a mortgage on a tract of land, dated the 15th of February, 1861.

<p>Special Proceeding — Practice —Issues.</p> <p>1. Where, in a Special Proceeding to make real estate assets instituted before a Superior Court Clerk, there ivas a demurrer filed to the complaint ; jBeld, That the issue of law thereby raised should be certified to the Judge at Chambers; Held farther, That it was error in the Judge after overruling the demurrer to direct that an order issue to the plaintiff to sell the land.</p> <p>2. In such case the decision of the Judge should be transmitted to the Clerk, with leave for the defendant to answer be'ore the Clerk, if so advised.</p> <p>3. In a Special Proceeding, if the answer of the defendant raises an issue of fact, the Clerk should transfer a copy of the pleadings to the civil issue docket for trial at term time : if it raises issues of law and fact, a similar transfer should be made, the issues of fact to be tried before a jury and the issues of law to be eliminated by the Judge and decided by him at the same time.</p> <p>4. Upon the determination of the issues, if the result makes it necessary, a procedendo should issue to the Probate Court.</p> <p>(McBryde v. Patterson, 78 N C. 478, cited and approved.)</p>

SPECIAL PROCEEDING, hoard at Spring Term, 1877, of Cas-well Superior Court, before Cox, J. The plaintiff’s intestate, Thomas L. Gatewood, died in 1855, and Wiley Jones was appointed his administrator, and upon his death, the defendant was appointed administrator d. b. n. and qualified as such in 1876.

MotioN in the cause, heard at Fall Term, 1876, of Guil-ford Superior Court, before Kerr, J. The plaintiffs brought this -action in behalf of themselves- and all other bill'holders of the Bank of Lexington, (bills-payable at the Bank of Graham,) who would come in and contribute to the expenses of the suit. The complaint was filed at Spring Term, 1873, and the defendants demurred.

Civil ActioN, tried at Spring Term, 1877, of Harnett Superior Court, before MeKoy, J. This was an appeal, from a Justice’s judgment, and the aetion was founded upon a note of which the following is a copy: _ _ “On or before February 15th, 1876, we or either, of us promise to pay X. Murchison, Guardian of M. Y. McNeill?, one hundred and’ eighty-three dollars, for rent of the land on the east side of the Cape Fear River with the exception-of the piece bid off by Miss.G.”…

Civil ActioN tried at Eall Term, 1876, of Carteret Superior Court, before McKoy, J. This action was brought, for the cancellation of a deed made by plaintiff to defendant, upon the ground of the fraudulent misrepresentation of a fact by the defendant to induce the plaintiff to execute the deed ; and this was the issue submitted to the jury.

<p>Civil Action for Damages tried at Spring Term, 1877,. -of Row AN Superior Court, before KeRR, J.</p> <p>It appeared that there was .a difficulty between the plaintiff and the defendant, Click, in regard to an injury to a valuable hog of the defendant, alleged to have been received while the hog was in a field cultivated by plaintiff. Click .and the other defendants went to the plaintiff's house and ..demanded pay for the hog. Upon that occasion it was alleged that their manner and conduct so greatly frightened the plaintiff as to cause paralysis from which she suffered ■for three months. There was much evidence as tn the -cause of the disease which is sufficiently stated by Mr. Justice Bynum in delivering the opinion of this Court.</p> <p>Under the ruling of His Honor in the Court below the jury rendered a verdict for plaintiff. Judgment. Appeal .by defendants.</p>

Civil ActioN removed from New Hanover and tried at: 'Spring Term, 1877, of BeuNswick Superior Court, before 4Seymour, J. The plaintiff claimed title to a certain kiln of brick conveyed to him by mortgage from one Stacy Van A-mringe in November, 1873. The defendant as Sheriff of New Hanover 'County, alleging that said mortgage was fraudulent and void as against creditors, sold said brick to satisfy executions in his hands against Van Amringe.

<p>Evidence — Impeachment of Judgment — Witness—Competency of Party Interested — Statute of Limitations — Aetion hy Next of Kin Agaijist Administrator.</p> <p>1. It is not competent to impeach a regular judgment of a Court collaterally ; Therefore, when, in an action by distributees against an administrator to recover their share of the decedent’s estate, the record of a-judgment in favor of the administrator was put in evidence ; Reld, That evidence offered to show that apart of such judgment consisted of funds-derived from the sale of property belonging to the remaindermea and not to the administrator, was properly rejected.</p> <p>2. A defendant having an interest in the event of an action is not permitted under O. C. P. §343, to testify in his own behalf, for the purpose of' contradicting a former witness whose evidence tended to show that the defendant fraudulently procured an assignment from a person deceased</p> <p>3. The statute of limitations does not run in favor of an administrator against an action by tne next of kin for their distributive shares.</p>

Civil ActioN tried at Spring Term, 1877,.of ChowaN Superior Court, before Cannon, J. The. defendants demurred to the complaint. His Honor -overruled the demurrer and gave judgment for plaintiff and tfche defendants appealed.

Civil Action, for Specific Performance of a Contract, tried at Spring Term, 1877, of Rowan Superior Court, before Kerr, J. ■ The plaintiffs offered in evidence a paper writing purporting to be the last will and testament of William J. Pendle-ton, deceased. This evidence was objected to by the defendant, and excluded by the Court upon the ground that it had not been proved in the Probate Court pursuant to the law of this State, as a devise of real estate.

SUPPLEMENTAL Proceeding, heard at Chambers on the 28th. of October, 1875, before Buxton, J. The facts are sufficiently stated by Mr. Justice Haircloth. The defendant appealed from the judgment of the Court below.

MotioN to set aside a Judgment in favor-of the defendant' upon a counter-claim set up in his answer in an action-by the plaintiff, heard at Spring Term, 1877, of Bow an: Superior Court, before Kerr, J. At Spring Term, 1876, of said Court, one Mauney brought' an action against the defendant and one Howes, upon certain drafts of Howes, alleging that Coit was a secret partner of Howes, and that Howes was the agent of Coit.

Civil Action tried at January Special Term, 1877, of Wake Superior Court, before Schenck, J. The plaintiff instituted this action to recover a balance due from the defendant on a contract for building a cotton gin, &c., and claimed a lien upon the same and the land •whereon it was situated by virtue of the following notice of lien: “P. J. WRAY, YS. James H. Harms. i Mechanics lien.

<p>Praetiee — Jurisdiction—Splitting Accounts.</p> <p>1. A creditor cannot “ split up ” an account so as to give a -Justice of the-Peace jurisdiction, when the dealing between himself and the debtor was continuous, and nothing appears on the face of it, or in the account rendered, indicating that either party intended that each item should constitute a separate transaction.</p> <p>2. An account for a bill of goods purchased on one day is to be taken as one entire transaction, in the absence of evidence of a contrary intention between the parties.</p> <p>(Waldo v. Jolly, 4 Jones, 173 ; Caldwell v. Beatty, 69 N. C. 365, cited, dis--tinguished and approved.)</p>

Civil Action for Specific Performance tried at Spring Term, 1877, of New IIaNoveR Superior Court, before Seymour, J. 'The plaintiffs are Mayer & Morgan and Feist Mayer. The defendants are Adrian & Vollers and The Bank of New Hanover.

Civil Action tried at January Special Term, 1877, of Wake Superior Court, before Schenck, J. This action was brought to recover the value of a certain ■number of cords of wood alleged to have been delivered to defendant company under a verbal contract, in which the plaintiff agreed that the defendant might cut off of his land, along and near the defendant’s road as many cords of wood as the defendant had cut off of a certain tract of its own.

<p>Appeal from a Justice’s Court tried at January Special Term, 1877, of-Wake Superior Court, before Schenck, J.</p> <p>The title of the action in the Justice’s Court was, “ II. T. Clawson v. W. 0. Wolfe and J. W. Watson,” and on the face of the summons was, “yon are hereby commanded to summon J. O. Wolfe, &c.” When the case was called for trial (the first time after it was docketed) the defendant moved upon the face of the papers to set aside the judgment rendered by the J ustiee of the Peace against him and to dismiss the action, for the reason that it appeared affirmatively' that no summons issued to or was served on W. 0. Wolfe,, the defendant, and that the return of -the Constable was defective.</p> <p>The plaintiff resisted the motion and offered to prove by the Constable that it was served on this defendant, and asked that the return be amended; and further, that the" defendant had waived all irregularity in the proceeding by giving the Justice notice of appeal, after judgment upon the alleged defective summons had been rendered and exécution issued thereon. His Honor being of opinion with the d&~ fendant, gave judgment accordingly and the plaintiff appealed.</p>

.P.btitioN for a Writ of Recorclari beard at- Spring Term;, 1877, of Wake Superior Court, before Buxton, J. ■ In an action heretofore had before a Justice of the Peace., in which J. D. Whitaker was plaintiff and tí. W. Perry and W. R. Perry were defendants, a judgment was rendered for plaintiff on the 21st of December, 1875. .'The plaintiff says; in his petition that he has a good defence to the notes upon which said judgment was rendered.

Civil ActioN tried at Spring Term, 1877, of Richmond Superior Court, before McKoy, J. The. plaintiffs are Jolm C. Gay and the executors of Mial Wall, deceased. The defendants are the heirs at law of John Fairley, deceased. His administrator was not made a party defendant.

Civil ActioN to recover Possession of Land tried at Spring Term, 1877. of Burke Superior Court, before Furehes, J. This action was commenced in Cleaveland County and removed to Lincoln, thence to Burke. A sufficient statement of the case is set out by Mr. Justice RodmaN in delivering the opinion of this Court. There was judgment for the defendant and the plaintiff appealed.

Motion to set aside a Judgment beard at Fall Term, 1876, The plaintiff as administrator d. b. n. of John H. Harrison sold certain lands of his intestate for assets to pay debts and the defendant B. F. Moore, Esq., became the purchaser, who afterwards moved the Court of Probate for an order relieving him from his bid and to set aside the sale, for the reason as stated in his affidavit that he labored under the belief that the widow’s dower in the. land was sold with it by her…

InjunctioN heard at Eall Term, 1875, of Currituck Superior Court, before Eure, J. The defendant, as Sheriff of Currituck County, levied on certain articles of personal property belonging to the plaintiff.

<p>MotioN to set aside and vacate a Verdict and Judgment, heard at Spring Term, 1S77, of Rowan Superior Court, before Kerr. J.</p> <p>This was a special proceeding commenced in the Probate Court of Gaston County, by the plaintiffs as executors of William A. Graham, deceased, and Mildred C. Cameron, in behalf of themselves and all other creditors against tlie defendant, as executor of Thomas R, Tate, deceased, to compel an account of his administration and payment of the debts alleged to be due to plaintiffs The debts were, disputed ; and upon issue joined, the case was transferred to Gaston ¡Superior Court; and upon affidavit of the defendant, it was removed to Rowan, and tried at Fall Term, 1876, before Goad. J.' The defendant’s testator, Thomas R. Tate, and Thomas W. Dewey (now deceased) were partners in a general banking business, known as the Bank of Mecklenburg. IE. A. Osborne, the Assignee in Bankruptcy of said Bank, was permitted to be made a party plaintiff, and filed his complaint demanding of defendant the payment of a large sum of money ; and the defendant also denied this debt. Upon issues submitted at Fall Term, 1876, of said Court, the jury found that the testator of defendant was indebted to the.executors of William A. Graham, $5,000, and to Mildred C. Cameron, $14,000, and that he was not indebted to said ■Osborne, and Cloud, J!, directed the same to be certified to the Superior Court of Gaston, and adjudged that the defendant recover costs of the plaintiff Osborne.</p> <p>Subsequently, Osborne filed an affidavit setting forth that he had abandoned the prosecution of this action, and had instituted an action in the Federal Court against the defendant ; that he never authorized the names of his attorneys to be entered of record in this or any other case in said Superior Court; that he attended said Superior Court only as a witness in the ease of Graham Cameron v. Tate, and in •obedience to a summons as such ; that he was not informed ■of the verdict and judgment against him until two of three months after said term, and that the same was an utter surprise to him. He further swore that his name did not appear as a plaintiff of record by himself or bj' attorney, but only in the issues which were submitted to the jury. Upon this affidavit he moved the Court to set aside and vacate said verdict and judgment upon the ground :</p> <p>.1. That said verdict and judgment were taken in surprise of said assignee, and by his mistake .and excusable neglect.</p> <p>2. That they were rendered irregularly and against ihe course and practice ©f the Court.</p> <p>Counter affidavits were filed by the defendant controverting some of the statements made by Osborne. Thereupon His Honor after argument of counsel found the following -facts :</p> <p>1. That the certified transcript from Gaston Superior Court, and the entries upon the dockets of this Court are the only proper records in this case.</p> <p>2. That the action in which Osborne, Assignee,'&e., is plaintiff, and Tate, executor, defendant, has never been regularly removed to this Court, and no such action is here.</p> <p>3. -That Osborne had no notice of the pendency of such action, or that issues had been submitted; nor did he appear in person or by attorney; nor did he have notice that said verdict and judgment had been rendered until some two' months afterwards.</p> <p>4 That no separate action in which said Osborne and Tate; were parties was ever docketed in G-aston Superior Court, or in this Court</p> <p>5. That only one jury was impannelled in the special proceeding or action in which Graham and Cameron were plaintiffs and Tate, defendant.</p> <p>6. That no evidence was submitted to the jury upon the issues in the alleged trial of the case of Osborne and Tate.</p> <p>7. That in the answer filed in the Federal Court by the defendant to the bill in equity of Osborne, the pendency of this action in Rowan was relied upon as a defence.</p> <p>Whereupon His Honor held, that said verdict and judgment were not rendered according to the course and practice of the Court, so far as they relate to the case of Osborne and. Tate, and that if Osborne ivas guilty of neglect, it was excusable. Motion to set aside and vacate verdict and judgment allowed, and the defendant appealed.</p> <p>cited White v. Snoio, 71 N. 0, 232; Bluder v. Hollins, 76 N. C. 271; McDaniel v. Watkins,, Ibid. 399; Hudgins v. White, 65 N. C. 393; Watson v. Shield, 67 N. C. 235; Cowles v. Hayes, Ibid. 128, and 69 N. C. 406; Wolf v. Davis, 74 N. C. 359 ; Waddell v. Wood, 65 N. C. 624 ; Wade y. City of New Berne, 73 N. C. 319 ; B. B. Co. v. Vincent, 8 Jones,, 119 ; Grid v. Vernon, 65 N- 0. 76 ; Gibbs v. Fuller, 66 N. C. 116 ; Benbow v. Bollins, 72 N. C. 422; Kitchen. v. Troy, Ibid. 50.</p>

Civil ActioN tried at Spring Term, 1877, of Mecklenburg ..Superior Court, before Cloud, J. The defendant J. S. Phillips executed a promissory note for $1400 to the other defendant, S. B. Alexander, said note •being negptiable and payable at the Bank of Mecklenburg. Alexander subsequently endorsed and transferred the same •to said Bank, and the Bank assigned to plaintiff.

<p>Civil ActioN tried at January Special Term, 1877, of New Hanover Superior Court, before McKoy, J.</p> <p>The case is sufficiently stated by Mr. Justice Reade in-delivering the opinion of this Court. Verdict and judgment for plaintiffs. Appeal by defendants.</p>

MotioN to set aside a Judgment heard at Chambers in Statesville on the 10th of July, 1876, before Furches, J. The judgment which the defendants seek to vacate was rendered against James Ii. Eoote and his co-defendant, C. L. Cook, at Eall Term, 1875, of Iredell Superior Court, upon a, note made by Cook as principal and Eoote as surety.

Civil Action to recover Possession of Land, Hied at 'Spring Term, 1877, of Ruthereord Superior Court, before Cloud, J. Both parties claimed under one John S. Eord, the grantee of the State of seventy-three acres of laud which is the subject of this controversy. Ford went into bankruptcy in 18C9, and his assignee sold said land at pub.ic auction to one Carpenter who sold to the plaintiff.

<p>Civil ActioN tried at August Special Term, 1877, of .Mecklenburg Superior Court, before Sehenck, J.</p> <p>This was an action brought by the plaintiffs as executors • of Cinthia D. King against the defendant for mesne proffts.</p> <p>' The plaintiffs alleged that the defendant took possession of a tract of land belonging to their testatrix whose right -thereto had been determined in an action of ejectment, (see King v. Little, Phil. Law, 484,) which was prosecuted by C« *0. King, Senior, and wife Cinthia, jointly, until the death •of the husband ill December, 1865, when it was prosecuted by Cinthia, as administratrix and in her' own right. Upon '.her death in 1868, her executors were made parties plaintiff and took out a writ of possession. Little then obtained an injunction which was dissolved in 1870. (See Littles. King, 04 N. C. 361.)- And thereupon he surrendered the possession to the present plaintiffs.</p> <p>It was further .alleged that the wrongful possession of .Little continued from January, 1861, until March, 1870, •during which time he committed waste upon the premises by cutting down trees, &c*.</p> <p>The defendant admitted the material allegations of the ■complaint, but insisted that the plaintiffs could not recover the profits which accrued during the coverture. Upon issues submitted the jury found that the annual rent of the land from January, 1861, to March, 1870, was $50, and that no ■damage resulted from the waste alleged to have been committed. . .</p> <p>His Honor held that the plaintiffs were only entitled to recover the mesne profits which were received by the defendant from the date of the death of C. C. King, Senior,. {December 25th, 1865,) to that of the plaintiff's testatrix, {January 28th, 1868.) Judgment. Appeal by plaintiffs.</p>

Claim agaiust The State heard at June Term, 1877, of-' the Supreme Court, under Art. IV, § 9 of the Constitution. Issues were sent down by order of The Supreme Court1 and tried at June Term, 1877, of-Wake Superior Court, before Buxton, J. The facts are stated in same case, 76 N. C.. 199. The plaintiff claimed $30,000 damages for breach of contract entered into between The State and himself for the-manufacture of cell doors for the Penitentiary.

Civil Action tried at Spring Term, 1877, of Beaufort .■Superior Court, before Eure, J. Elizabeth J. Latham, the wife of plaintiff, was a member -of the defendant association, and transacted her business ■with the same through her husband. She continued to pay • dues of one dollar per month, on each share of stock owned by her, until the first Monday in October, 1872, as required by the by-laws of the association.

<p>Tenant in Common — Adverse Possession.</p> <p>1. The possession of one tenant in common is, in law, the possession of all; but if one have the sole possession for twenty years without any acknowledgment of title in his co-tenant and without any claim on the part of such co-tenant to rents, &e., he being under no disability (before ■the adoption of the Code,) the law raises a presumption that such sole possession is rightful and will protect it.</p> <p>-2. Adverse possession by one tenant in common for a less period than twenty years, will not raise the presumption of ouster and sole seizin.</p> <p>'.“3. Under C. C. P. § 23, possession for twenty years, which formerly raised . a presumption of title, now has the force and effect of an actual title in fee, against all persons not under disability.</p> <p>,4. The provisions of 0. 0 P. § 23, however, do not extend to actions commenced or rights of action accrued at the date of the ratification of the Code.</p> <p>t(Blotch v. Lindsay, Busb. 467 ; Thomas v. Ganan, 4 Dev. 223; Cloud v. Webb, 4 Dev. 290; Dayv. Howard, 73 N. C. 1, cited, distinguished .and approved.)</p>

Civil ActioN tried at Spring Term, 1877, of Wake Superior' Court, before Buxton, J. The case is sufficiently stated by The Chief Justice-Upon the pleadings His Honor gave judgment for the plaintiffs and the defendant appealed,

MotioN to correcta Judgment beard at Spring Term, 1877, of Mecklenburg Superior Court, before Cloud, J. The action was originally brought against Samuel A. Harris, the intestate of defendant.

<p>Civil AotioN to recover Possession of Land, tried at-Spring Term, 1877, of CumberlaNd Superior Court, before McKoy, J.</p> <p>The plaintiffs read in evidence a petition, order of partition, appointment of commissioners, and an order confirming their report in the case of the'present plaintiffs against Bun-can McCormick, the devisor of the present defendants, and under whom the defendants claim the land in dispute. See .69 N. C. 14. The description of the land in the complaint-was the same as in said petition, decree and report of commissioners.</p> <p>Tbe defendants adtíiitted that they were in possession of' tbe land at tbe time tbe action was brought! and tbe plaintiffs demanded possession of .tbe same upon' tbe ground that it was allotted to them in tbe said proceeding for partition.His Honor gave judgment for tbe plaintiffs and the defendants appealed.</p>

MotioN to dismiss an Action for want of Jurisdiction heard at Spring Term, 1877, of Davie Superior Court, before Kerr, J. On the 9th of January, 1875, the plaintiff made oath before a Justice of the Peace, in substance, that the defendant occupied a certain piece of land as tenant of the plaintiff from the 1st of January, 1874, to the 1st of January, 1875. when his term expired ; that the estate of the plaintiff was still subsisting and that defendant refused to surrender…

Civil Action for ait Account of a Partnership, heard upon •exceptions to a report of a Referee at Spring Term, 1876, of Orange Superior Court, before Seymour, J. The case was referred to Thomas Ruffin, Esq., and upon the return of his report, the plaintiff filed the following exceptions : “ 1. That he has not found the issues raised by the pleadings, both of law and fact. 2.

<p>Civil Action to subject Partnership Property to the pay-ment of Eirm Debts, tried at Spring Term, 1877, of David-,S0N Superior Court, before Kerr, J.</p> <p>The case is sufficiently stated by Mr. J ustice Rodman in •delivering the opinion of this Court.' Judgment for defeud-.ants. Appeal by plaintiffs.</p>

Civil Actioh for Damages for Breach of Covenant, tried at Spring Term, 1877', of II YDESuperior Court, before Eure, J. The case made bj the pleadings and verdict of the jury was this : On the 30th of April, 1855, the plaintiff owned a certain piece of land, through which a ditch ran from Mattamuskeet Lake, to a canal which ran. through a piece of land then the property of one Stanley, called the McCauley land, to the head of Wysoeking Creek.

<p> Abandonment of Claim to Land--Evidence. </p> <p>'To constitute an abandonment or renunciation of a claim to property, there must be acts and conduct, positive, unequivocal, and inconsistent with a claim of title; ■</p> <p>'Therefore, where the land of plaintiff was sold at execution sale during his absence in the army and purchased by his mother, who represented that she was bidding for him, and afterwards plaintiff declined an offer from her that he should repay the purchase money and take a conveyance of the land, alleging that it was his; and afterwards she sold the land, the grantee having’ notice of plaintiff’s claim; Held, in an action for the land, that plaintiff’s refusal to pay the purchase money and take the title, did not operate as a renunciation of his claim, and that he was entitled to recover.</p> <p>{Bich v. Marsh. 4 Ire Eq. 396 ; Bill v. Whitfield, 3 Jones, 120 ; Faw v. Whittington, 72 N. C. 321, cited and approved.)</p>

<p>Civil Action tried at January Term, 1877, of Mecklen-burg Superior Court, before Schenck, J. This action wa& brought to recover a fund arising from the sale of a steam. engine and its appurtenances, which were sold by consent of the parties to prevent injury from exposure.</p> <p>The main question however presented by the pleadings and decided by this Court was, whether said engine, &o., was .■a fixture to the freehold.</p> <p>The facts found by His Honor are substantially as follows : In October, 1867, one Davis sold to the defendant, Yallentine, a tract of land in said County, contracting in •writing to make title to the same upon payment of a certain ■sum of money. The land was purchased as mining property, and said defendant went into possession and put up machinery, that he might be able to carry on the mining opera-lions more successfully. The machinery was placed in a house made for the purpose and firmly screwed down on wooden frames, and connected with the boilers'out side the house by a steam pipe, and could not be gotten out without ■removing a portion of the house. The boilers could not be removed without tearing down the brick work encasing them.</p> <p>The said defendant failed to comply with his part of the contract in the payment of a large amount of balance clue for the purchase of said property.</p> <p>In 1868, said Davis, the vendor, was declared a bankrupt, ;and his interest in balance of said purchase money, together with other effects as exhibited by his schedule, were regularly and legally sold by his assignee, and the plaintiff became the purchaser and obtained a deed conveying all the ■estate of said bankrupt.</p> <p>The said defendant continued in possession under his contract of purchase, and claimed the engine and machinery as his property. The plaintiff also claimed them under ■ his purchase from said Davis’ assignee, insisting that they were •fixtures to the freehold and constituted a part of the land, :and averring his readiness to make title to the same upon payment of balance of purchase money.</p> <p>The engine and machinery were severed from the land,, while said defendant was in possession under said contract-of purchase, by his order and direction as well as the plaintiffs.</p> <p>The opinioh of His Honor which is set out in the case?, concludes, “ that as the defendant was a tenant in possession under a written contract of purchase, and had erected these fixtures for the ‘ purpose of manufacturing,’ and severed them from the realty while in possession under the contract, that they thereby lost their character as fixtures,, and again vested in the defendant as chattels.”</p> <p>Judgment was accordingly rendered for defendant and the plaintiff' appealed.</p> <p>cited, Hill on .Fixtures; 2 Kent Com. 278 ; Bryant v. Lawrence, 5 Jones 337; La-tham v. Blakely, 70 N. C. 368 ; Elwes v. Mawe, 3 East 38 ; Smith v. Moore, 26 Ill. 392; McLaughlin v. Nash, 14 Allen. 136 ; Bemenway v. Cutler, 51 Me. 407.</p> <p>cited, Elwes v. Mawe, 2 Smith L. C; Van Ness v. Backard, 2 Peters 145 ; Moore v. Smith, 24 Ill. 512; Beymond v. White, 7 Cowen. 319; Niven v. Belknap, 2 Johns 573; Love v. Edmionston, 1 Ire. 125 ; Jones v. Mill, 64 N. C. 20-0 ; Mason v. Williams, 66-N. C. 564; Saunderson v. Ballance, 2 Jones Eq. 322; Sher-rill v. Sherrill, 73 N C. 8.</p>

MotioN to dismiss Supplemental Proceedings, heard at «Chambers in Washington, Beaufort County, on the 16th of May, 1877, before Eure, J. The plaintiff is the owner of a judgment for $1500 obtained in 1870, against the defendant Isaiah Respass, who has since Recome a lunatic, and the other defendant, J. T. Respass has been duly appointed his guardian.

<p>Civil ActioN tried at Spring Term, 1877, of Wake Superior Court, before Buxton, J. The plaintiff as administrator (with the will annexed) of Henry Hesselbach, alleged, that oil the 2d day of June, 1873. the defendant and one Phil. Thiem executed a joiut note to Hesselbach for $800, and that no part thereof had beeu paid except the interest up to the 1st day of March, 1875, and demanded judgment for the amount due thereon. The defendant admitted the execution of the note on his part as surety to Thiem, but has received no benefit therefrom. He further alleged that Thiem tiled his petition in bankruptcy in 1874, and that his effects, amounting to a considerable sum, went into the hands of his assignee for the benefit of his creditors, and he is not informed as to the sum received to be applied to said note; that since the bankruptcy of Thiem, the plaintiff’s testator, (Hesselbach), became largely indebted to Thiem; that Hesselbach, before his death, considered that said sum should go to the satisfaction of the note sued on, and said that the note had as well be destroyed; that an account anight be taken to ascertain the amount due, if any, upon eaid note. When the case was called for trial, the plaintiff moved for judgment on the pleadings upon the ground that the answer was frivolous. His Honor allowed the motion and the defendant appealed.</p>

Civil Actior tried at Spring Term, 1877, of Buucombe' Superior Court, before 'Furches, J. This was an action on a note executed to the plaintiffs by the defendants. The plaintiffs moved for judgment on the-ground that neither the answer of Baird nor the demurrer of the other defendants raised any issue of law or fact material to the case. The Court overruled the motion and held that said answer and demurrer did raise an issue of fact' and law, and were not frivolous.

Civil ActioN tried at Spring Term, 1877, of NORTHAMPTON Superior Court, before Buxton, J. James Clark the intestate of defendant was the guardian of one James P. Harrell, and the plaintiff was surety on his guardian bond. The plaintiff alleged that in an action brought on this bond by Harrell, he was compelled to pay the amount demanded as due to the ward, as appeared by a return of said guardian made in 1851.

CONTROVERSY submitted without, action' under C. C; P. § 315, and heard at Spring Term, 1876, of Chowan Superior Court, before Eure, Eacts agreed upon ; 1.’ Charles W. Skinner being indebted to Whedbee & Dickinson executed to the defendant Coke for their benefit a deed of trust, dated June 26th, 1875, conveying certain property as follows: “ 1800 bushels of Turk’s .Island salt, his entire fishing material, with all the additions to be made to it for use during the spring of…

CONTROVERSY submitted without action under C. C. Pi § 315, and heard on the 3d of July, 1877”, before Cox, J. On the 16th of September, 1876, Simon G-. Hayes insured his cotton gin, &c., upon his land in Wake County, in the. Commercial Eire Insurance Company for $2300, and in the Albemarle Eire Insurance Company for $1150. • He had previously mortgaged the property by executing two deeds —one in Eebruary, and the other in August, 1875 — to secure the payment of debts.

<p>Civil Actios to recover Possession of Land, tried at Spring Term, 1877, of Chatham Superior Court, before •Cox, J.</p> <p>The facts are sufficiently stated by Mr. Justice Reads'. in'delivering the opinion of this Court. Verdict and judgment for defendant. Appeal by plaintiff.</p>

<p>Civil AotioN for Damages tried at Spring Term, 1877, of Chatham Superior Court, before Cox, J.</p> <p>The plaintiff was tlie owner of valuable mills on the west' bank of Haw River, erected for a grist mill and wool-carding machine, &c. The defendants were the owners of a saw mill situated on the east bank of the river, above the plaintiff’s mills, which were run by water power, the water being conducted by a race formed by two clams. The defendants increased the height of the dams and cut a race ■across plaintiff’s line, thereby interfering with the water power of plaintiff, and for the trespass and the damage resulting therefrom this action was brought.</p> <p>The plaintiff’s title to the land upon which his mills were ■situated, and the trespasses were alleged to have been committed, was denied by the defendants.. Both parties claimed under one IT. J. Stone, who conveyed the land on the 9th •of November, 1848, to one McClennahan for life. The plaintiff then offered in evidence mesne’ conveyances from McClennahan to himself, which were admitted to be regular; one of these conveyances being a fee simple deed from McClennahan to Mary Taylor, dated the 24th of May, 1852; and it was proved that McClennahan died in 1859. • After the commencement of this action, and in furtherance of an understanding between Stone and McClennahan to cure a mistake in the first deed, Stone executed a deed to the plaintiff conveying said land in fee, and reciting in the deed that he intended to convey a like quantity of interest to McClennahan in the first instance. The plaintiff, and those under whom he claimed, were in possession of the land from the 9th of November, 1848, to the present time, claiming to be fee-simple owners thereof. Stone exeeutéd' a deed for land adjoining the plaintiff’s tract to one Temple, which deed was burnt in Temple’s house. And thereupon, at the request of Temple, and before he (Stone; went into bankruptcy in 1867, he executed another deed in lieu of the one burnt, and dated it August 25th, 1848. It was alleged that this was not the date of the original deed, nor was the land described by the same boundaries. Stone testified, among other things, that this deed was made without reference to the McClennahan deed, and was intended to convey the same land as was embraced in the original deed to Temple, which deed did not call for the river, but for McClennahan’s line. But the deed of 1867, which was offered in evidence, called for the river. Temple conveyed to the defendants in 1876, and he testified that the deed of 1867 was the same as that of 1848, in regard to boundaries and date.</p> <p>The defendants objected to the testimony of Stone, and also to the evidence in regard to the damages sustained, upon the ground that damages, by reason of the erection of the defendants’ saw mill, could only be recovered in a special proceeding, and should be assessed by commissioners. The objections were 'overruled, and under the instructions-of His Honor the jury rendered a verdict in favor of the plaintiff. Judgment. Appeal by defendants.</p>

Civil AotioN for the Possession of Land, tried at Spring Term, 1877, of Mitchell Superior Court, before Furches, J. The plaintiffs, for the purpose of establishing their title, introduced a deed from one Brown to William Edwards, dated the 15th of August, 1833, and a deed from said Edwards to Lavina Edwards, the feme plaintiff, dated the 24th of January, 1861, and then offered other testimony tending to show adverse possession for more than twenty-one years.

Civil Actios for the Possession of Land, tried at Spring Term, 1877, of Davie Superior Court, before Kerr, J. The case is sufficiently stated by Mr. Justice Faircloth in delivering the opinion of this Court. Upon the issues submitted and under the instructions of His Honor in the Court below, the jury rendered a verdict for the plaintiff. Judgment. Appeal by defendant.

Civil Action for Damages, tried at Spring Term, 1877, of Wake Superior Court, before Buxton, J. The plaintiff’s intestate, John Godwin, was arrested bj one of the policemen in the service of the defendant in June, 1875, for an alleged violation of a City ordinance, and confined in the City guard-house where he died. It was alleged that his death was caused by the 'unwholesome condition of the pi’ison, occasioned by neglect of the City authorities.

Civil ActioN for Damage^ tried at Spring Term, 1877, of-NorthamptoN Superior Court, before Buxton, J. The plaintiff complained that the defendant had contracted to deliver to him at Garysburg, N. C., sixteen tons of a •commercial fertilizer known as “ Patapsco Guano,” and that instead of delivering the said article, the defendant delivered a spurious article, which defendant’s agent falsely and fraudulently represented to be the genuine -Patapsco Guano, .and by reason…

Civil ActioN, tried at Spring Term, 1877, of Wilson Superior Court, before Moore, J. This action was in the nature of a Bill of Review to reverse for error in law a final decree made in a cause .in the late Court of Equity for Wilson County in 1888, in the matter of the present plaintiffs, by their guardian, Elisha JBarnes,. against Wiley W. Winstead, (defendants’ testator), their former guardian; and also to set aside and vacate said decree on the ground that it was…

Civil Action tried at Spring Term, 1877, of NorthamptoN Superior Court, before Buxton, J. This action was brought ©n a bond under seal purporting to have been executed by one John S. Harris as principal aucl the defendant’s testator, John Stanley as surety. The defendant denied the execution of the bond by his testatoi;. The plaintiff then' introduced said Harris as a witness who testified that Stanley did execute the bond. The defendant objected to this evidence.

Civil Action for Breach of Covenant in a Heed, tried at Spring Term, 1877, of Watauga Superior Court, before Schenck, J. , It appeared that the defendant executed a deed to the plaintiff conveying certain lands -in Johnston County, Tennessee, which were subject to incumbrances, judgments, &c., against the defendant. Covenants against these. incum-brances were inserted in the deed.

<p>Civil ActioN tried at Fall Term, 1876, of Guilford Superior Court, before Kerr, J.</p> <p>The plaintiff brought this action to recover the, value of a-note given by the defendant for the purchase money of a-tract of land bought of one A. C. Caldwell, who afterwards-assigned the note to plaintiff. During the pendency of the action the defendant filed his petition in bankruptcy. No-creditors proved their claims. His homestead in the land, had been assigned by the Sheriff before the commencement of this action, and the assignee in bankruptcy conveyed the reversionary interest in the same to the defendant, and t-he-homestead was reassigned by order of the Federal Court in. the proceedings in bankruptcy. His plea of discharge' in bankruptcy was filed and admitted, and as the effect of this-discharge is the basis of the decision of this Court, a further statement of the facts is unnecessary. ‘His Honor gave judgment in favor of the plaintiff, and ordered the land to' be sold for the payment of his debt. From this judgment-the defendant appealed.</p>

Motion in the Cause heard at Spring Term, 1877, at Halifax Superior Court, before Buxton, J. The plaintiffs moved the Court for an order restraining the defendants from making any disposition of certain bonds until the determination of the action then pendiug and final judgment therein. The case is sufficiently stated by Mr. Justice Rodman in delivering the opinion of this Court. His Honor allowed the motion and the defendant, Winfield, appealed.

Civil ActioN, tried at January Special Term, 1877, of Wake Superior Court, before Schenck, J. This action was brought to recover the value of five bales-of cotton raised upon the land of the defendant by one Pooh The plaintiff’s claim was based upon a mortgage executed to him by Pool in February, 1872, conveying the crops raised up>on the land for said year. The defendant’s claim was based upon a verbal contract with Pool, under which Pool worked the land in 1870-’7l-’72.

Civil ActioN, tried at Spring Term, 1877, of Beaufort Superior Court, before Eure, J. The plaintiff instituted this action against the defendant to recover the amount due upon certain notes given for th& purchase money of a tract of land in Beaufort County, and to obtain a decree of foreclosure of a mortgage deed executed by tbe defendant to secure the payment of said notes.

The plaintiff instituted an action against the defendants at Spring Term, 1877, of Northampton Superior Court for an account and settlement, and thereupon the defendants, who held a mortgage with a power of sale upon the plaintiff's property worth $20,000, immediately advertised the same for sale, to the end that they might purchase it to secure their claim of $5,000.

• MotioN for an Injunction heard at Chambers in Halifax 'on the 29th of May, 1877, before Buxton, J. The plaintiff executed two mortgage deeds to the defendants conveying certain land and chattel property to secure advancements for agricultural purposes, and alleged that the defendants had failed to comply with their part of the agreement.

Civil Action tried at January Special Term, 1877, of Wake Superior Court, before Schenck, J. This was an appeal from a judgment rendered by a J ustice-of the Peace in favor of the plaintiff. The facts appear in the opinion. His Honor upon the trial in the Court below gave judgment for the plaintiff, and the defendant appealed..

Civil- Action tried at Eall Term, 1876, of Northampton Superior Court, before Waits, J. ' This acti®n was brought to recover $394.56 balance due, alleged to have been furnished the defendants at their. re-quest, and paid on a certain draft drawn by them.

Civil Action tried at Spring Term, 1877, of Davidson Superior Court, before Kerr, J. ■ The plaintiff alleged that the defendants executed their promissory notes to Newsom & Co. for $500, and that the same had been assigned to'her for value received, and demanded judgment for the amount.

This was a motion bj the plaintiff for an order to prevent the defendant commissioners from inducting into office their co-defendant, Manly B. Jones, who was re-elected County Treasurer in 1876, and was notified to appear and give bond which he failed to do. And thereupon the defendants declared that there ivas a vacancy and appointed the plaintiff to fill the same.

<p>Praetiee — Title to Pablie Offiee — Motion.</p> <p>Title to a public office cannot be tried by motion.</p> <p>(Jones v. Oom’rs of Granville, ante, 280 ; Patterson v. Hubbs, 65 N. C, 119 ; Brown v. Turner, 70 N. 0. 93, cited and approved.)</p>

<p>Criminal Court of Wake — Clerk—Office and Officer — Power of General Assembly.</p> <p>1. The act of the General Assembly (Acts 1876 — ’77, ch. 271) establishing a Criminal Court for the County of Wake, is constitutional.</p> <p>2. The Legislature has the constitutional power to dimmish the emoluments of an office by the transfer of a portion of its duties to another office, and in such case the incumbent must submit. He takes the office subject to the power of the Legislature to make such changes as the public good may require.</p> <p>(Hoke v. Henderson, 4 Bey 1; Taylor v. Stanley, Ibid, 31 ; Gotten v. Ellis, 7 Jones, 545 ; King v. Hunter, Go N. C. 603, cited, distinguished and approved.)</p>

heard at Chambers on the 1st day of June, 1877, before Furches, J. The defendant’s counsel moved to dismiss this action upon the ground that there was a similar proceeding pending'^in Caldwell Superior Court, between the same parties, involving the same subject matter, and in which various orders of reference, reports, and decrees have been made.

MotioN to dissolve an Injunction, heard at Spring Term, .1877, of Ckaven Superior Court, before Moore, J. The demand of the plaintiffs in the original action was, .that certain bonds issued by defendant company, some of which are held by the other defendants, John L. Morehead and Julius A. Gray, should be declared void; and that the-officers of the company be restrained from paying interest on. said bonds.

<p>This Court will not decide a question of great importance unless in a case where such decision is necessary to protect some substantial right'; Therefore, where a conflicting question of jurisdiction arose between the Superior Courts of two Counties in the matter of the appointment of a Receiver for the defendant corporation, who pending the controversy was duly elected President thereof; Held, that this Court without expressing an opinion should affirm-the order b.elow appealed from</p>

MotioN to vacate an Order appointing a Receiver, and for an Injunction, heard at Chambers in Greensboro, on the 15th of March, 1877, before Cox, J. A statement of the facts is not necessary to an understanding of the opinion. See the two preceding cases. His Honor refused both motions and the defendant appealed.

Erom the 'case agreed and the record, the following facts appear: The plaintiff brought an action against the defendant in his representative character for $70.35 before a Justice of the Peace in said County where both parties reside. The defendant obtained letters of administration and filed his official bond in Henderson County. The defendant appeared before the Justice and pleaded payment and statute of limitations.

' Civil AotioN, tried at Spring Term, 1877, of Halifax Superior Court, before Buxton, J. The defendant contracted to build the Williamston and Tarhoro Railroad, and employed the plaintiff, who performed labor and furnished materials in the construction of the same under a contract with the defendant. This action was-brought on the 4th of October, 1873, to recover the amount-due, and-was referred to Thos.

Civil ActioN for Divorce tried-at Spring Term, 1877, of MbokleNBURG Superior Court, before Cloud, J. The plaintiff alleged that he was married to the defendant on the 22d of January, 1874 ; on the 8th of March following, he discovered that she was pregnant and had been so for more than four months; on the '29th of July following, she was delivered of a child; on discovering her condition in.

Arrest and Bail tried at Spring Term, 1877, of Cumber-LAND Superior Court, before MeKoy, J. Proceedings in Arrest and Bail were instituted by the plaintiffs against one John X). Jackson, who was arrested, and subsequently — on the 16th of April, 1870, — discharged from arrest upon an undertaking signed by the defendant in this action.

ARREST and Bail, tried at Spring Term, 1877, of Cumber-LAND Superior Court, before McKoy, J. The case is fully stated by Mr. Justice ByNum, 'in delivering the opinion of this Court. Judgment for plaintiff. Appeal by defendant. submitted; C. C. P. § 161 is to be construed strictly. . A County jail is not a State prison, Const. Art. XI § § 3, 6 ; Bat. Rev. ch. 85 § § 1, 42, 45.

<p>Arrest and Bail — Suffieieney of Affidavit — Praetiee.</p> <p>In an action for arrest and bail, the plaintiff alleged in substance that the defendant had sold him a certain patent right, representing the same'to be genuine and no infringement upon any prior patent, which representations were false and intended to deceive plaintiff; that he had been damaged the amount of the purchase money paid to defendant; and that defendant was a non-resident; Held, that the order of arrest was properly issued.</p>

Civil Action to recover Damages for Breach of Promise to Marry, tried at Spring Term, 1877, of Halifax Superior Court, before Buxton, J. At the time this action was instituted, and upon the affidavit and undertaking of the plaintiff, the defendant was arrested and held to bail under the provisions of Bat. Rev, ch. 17, § 149, (2).

Civil ActioN for Damages tried at Spring Term, 1877, of MONTGOMERY Superior Court, before McKoy, J. The case is sufficiently stated by Mr. Justice Rodman in ■delivering the opinion of this Court. Under the instruction of His Honor in the Court below, the jury rendered a verdict for plaintiff. Judgment. Appeal by defendant.

MOTION to vacate an Order of Attachment, heard at Chambers on the 21st of December, 1876, before Moore, J. The only point decided in this Court is, as to the sufficiency of the affidavit upon which the proceeding was based. The motion was disallowed by the Court below, and the defendants appealed.

Claim and Deliveby tried at Pall Term, 1876, of Watauga Superior Court, before Buxton, J. The plaintiff instituted this action for the delivery of a yoke of oxen which had been seized by the defendant, as-Sheriff of said County, to satisfy an execution for. taxes-alleged to be due by the plaintiff.

Claim and Delivery, tried at'Spring Term, 1877, of Martin Superior Court, before Eure, J. The defendant was a Constable, and as such, had in his hands for collection an execution for $200 issued upon a judgment rendered by a Justiee of the Peace. lie levied upon certain bales of cotton on the premises and in the possession of the judgment debtor, Thomas W. Jones, the testator of plaintiff, by whom this action was instituted.

Claim and Delivery,tried at.January Special Term, 1877, of Ware Superior Court, before ScheneJc, J. This action was brought by the plaintiff’s intestate who alleged that the defendant, as Sheriff, under an execution issued against the property of one M. S. Littlefield, seized certain personal property belonging to the plaintiff.

<p>Civil Action tried on appeal from a Justice of the Peace at Spring Term, 1877, of Wilson Superior Court, before Moore, J. ■</p> <p>On tbe 10th of October, 1876, the plaintiff delivered to defendant company at its depot in the town of Black Creek, Wilson County, thirty-one bales of cotton to be shipped to Norfolk, Virginia, and at the same time the defendant gave to the plaintiff' a bill of lading for the cotton, signed by the agent of the company.. The plaintiff did not tender payment of freight, nor was it demanded, nor was it the custom for shippers to prepay freight, nor was there any agreement between the parties that the cotton was not to be shipped within five days from date of its delivery to the company. The cotton was shipped on the morning of the 19th of October, 1876.</p> <p>The defendant owned a large number of cars and engines— more than sufficient for the ordinary freight business — but during the season of 1876, there was a great press of business for about six weeks in transporting through cotton from Wilmington to the northern markets, which amounted to 4200 bales dtiring the said month. The cars were used for the shipment of this freight, a large quantity of which was detained in Wilmington, owing to the inability of the company to afford more speedy transportation. There was considerable competition between different roads for this class of business. The gauge of the road south of Wilmington from which the cotton was received, is different from that of defendant’s road, which rendered it necessary to break bulk at W ilmington. The gauge of the roads north of Weldon is the same as that of defendant’s road, and the defendant could have obtained from the north, a sufficient number of cars for the transportation of all its freight, both local and'through.</p> <p>Upon the foregoing facts found by His Honor, a jury trial having been waived, there was judgment that the'plaintiff recover of the defendant, the sum of one hundred dollars and costs, and the defendant appealed.</p> <p>cited Ulman & Scott v. State of Illinois, and Chicago $ Burlington R. R. Co. v. Quincey, U. S. Supreme Court Reports; Cooley Const. Lim. pp. 576, 578, 580. 581; State v. R. ¿• D. R. R. Co., 72 N. C. 634; Hardy v. C. C. Railway Co., .76 N. C. 55; 2 Dillon •Corp. § 455.</p> <p>cited Slate v. R. B. R. R. Co., 73 N. C. 527; State v. Simpson, Ibid, 269; Cooley Const. Lim. 576, et seq.</p>

Civil ActioN tried at Spring Term, 1877, of NORTHAMPTON Superior Court, before Buxton, J. The plaintiff alleged negligence on the part of defendant-corporation, a common carrier, in transporting sixty-five bales of cotton from a certain landing on Roanoke River to Norfolk, and that by reason of such negligence the plaintiff'' was damaged. The negligence was denied by the defendant, and thereupon issues 'were submitted to the jury.

Civil AotioN tried at Eall Term, 1876, of Person Superior Court, before ATerr, J. The plaintiff is executor of John A. Bailey deceased, under whose will the defendant Elizabeth T. Chambers took certain real and personal property ‘'during her natural, or single state,” with remainder over to the other defendants. The facts are sufficiently stated by Mr. Justice Eaiboolth in delivering the opinion of this Court.

Special Proceeding commenced in the Probate Court of GastoN County, and heard on the 1st day of June, 1877, at Chambers in Charlotte, before Cloud, J. The plaintiff is administrator of Nathan Eoard, and had recovered judgment for a considerable sum against the defendants, Jasper Stowe, E. B. Stowe and W. A. Stowe, executors of Larkin Stowe.

MotioN - in the Cause heard at Spring Term, 1877, of Northampton Superior Court, before Buxton, J. Upon the death of the intestate, Samuel A. Warren, W. T. Stephenson was appointed his administrator and made a party plaintiff. Upon Stephenson’s death (pending the action) R. B. Peebles, Escp, was appointed administrator, d. b. n„ but refused to become a plaintiff in the action.

PROCEEDING for the Settlement of an Estate heard at Spring Term, 1877, of Nash Superior Court, before Buxton, J. This pi’oceeding was instituted by the plaintiff, as executor of John Harrison against hiá legatees, and W. T. Dortch, executor of his (Harrison’s) widow.

MotxoN in the Cause, heard at Spriug Term, 1877, of Halifax Superior Court, before Buxton, J. Lewis Hale died, leaving a last will and testament appointing his widow, Sarah Hale, executrix; and upon her death and under her will the defendant entered upon the discharge of his duties as executor of the estates of both of them.' Lewis bequeathed his whole estate to his widow except $1,000 to be paid in annual installments of $100.

Special Pe-oceediNg commenced in the Probate Court and beard on appeal at Spring Term, 1877, of PIalieax Superior 'Court, before Buxton, J. The defendants are the heirs-at-law of James Y. Allen, the intestate of plaintiff, whose land was sold for the payment of his debts. A portion of the land was bought by one John Manley who paid a part of the purchase money and gave a note for the balance due, with one John A. Eeid as surety. Manley is insolvent.

MotioN in the Cause by plaintiffs to have homestead ascertained and for possession, heard at June Term, 1877, of The Supreme Court. The facts are stated in same case, 76 N. C. 468.

Civil ActioN tried, at August Special Term, 1876, of GRANVILLE Superior Court, before Seymour, J. This action was brought to foreclose a mortgage, and a… Held: that the deed conveying said lands was invalid upon the ground that the wife did not assent thereto, and that plaintiff was not entitled to judgment of foreclosure, but was entitled to judgment for the amount due with interest. From so much of said judgment as refused an order for foreclosure, the plaintiff appealed.

<p>Personal Property Exemption — Waiver—Executory Contraet.</p> <p>1. Where the defendant agreed under seal not to claim his personal property exemption against the collection of a certain debt; Held, that such agreement is not binding upon him.</p> <p>2. In such case the contract is executory and a levy and sale by the sheriff of any portion of his personal property exemption in no way effects the title of the defendant thereto.</p> <p>3. In such case the Court will not compel the defendant to a specific performance of his contract, but will leave the plaintiff to his action for damages for its breach.</p> <p>(Williams y. Howard, 3 Mur. 74 ; Austin v. Giüaspie, 1 Jones Ecp 261, cited and approved.)</p>

Civil Action commenced before a Justice of tíre Peace and tried on appeal at Spring Term, 1877, of Catawba Superior Court, before Schenck, J. David Link died intestate 'in 1870, leaving a widow and three children — namely, the plaintiff, the defendant’s intestate (Sarah Cline) and Barbara Sigmore. The two last named were married women in 1873, and the plaintiff a widow.

Civil ActioN tried at Spring Term, 1877, of Guileobd Superior Court, before Cox, J. The plaintiff, John W. Kirkman, married Nancy E. Cly-mer in 1858, who was a widow with two children — namely, Joseph Clymer and a daughter, who married Henry A. Wilson. The said Nancy in 1872, was a distributee of a certain estate, and as such was entitled to the sum of $690. In the settlement of this matter in 1873, Messrs.

Civil ActioN for Breach of Official Bond, tried at Eall Term, 1876, of IIarNett Superior Court, before Furches, J. This action was' brought by the plaintiff as Chairman of the Board of County Commissioners against the defendant, K. M. McNeill and the sureties on his bonds as Sheriff of’ Harnett County, executed respectively on the 2d of September, 1872, and the 1st of September, 1873.

Civil Action for Breach of Official Bond tried at Spring Term, 1877, of Greene Superior Court, before Moore, J. This action was brought on the bond of defendant, Taylor, as Sheriff of Greene County..

Civil Action .for Breach of Official Bond, tried at Eali Term, 1876, of Hertford Superior Court, before Moore, J. The facts so far as material to present the points made and decided are as follows: The defendant, Isaac Pipkin, was re-elected to the office of Sheriff of Hertford County in 1872, took the prescribed oath, and executed the bond described in the complaint, with the other defendants as sureties.

Civil ActioN tried at Spring Term, 1877, of Davie Superior Court, before Kerr, J. The plaintiff is the assignee of the distributees and heirs-at-law of one Powell on whose estate Samuel Holman administered and sold the land of his intestate for assets, and it is alleged that he purchased said lands at bis sale through nn agent.

MotioN to set aside an Order of Reference, beard at January Special Term, 1877, of ‘Wake Superior Court, before Schenck, J. In this action (see same case, 74 N. 0. 722,) the plaintiffs moved the Court to empannel a jury to try the issues of fact therein, which was resisted by the defendant upon the ground that the order and agreement of reference to Joseph B. ^Batchelor, Esq., precluded the right of plaintiffs to have a jury. The motion was allowed and the defendant appealed.

Petition to restore a Eecord of the late Court of Equity, heard at Spring Term, 1877, of Buncombe Superior Court, before Furches, J. The case is sufficiently stated by Mr. Justice Eeade in delivering the opinion of this Court. Ilis Honor in the Court below refused to grant the order prayed for in the petition of the plaintiffs and they appealed.

Peyton Atkinson died in 1862, leaving a last will and testament appointing his wife, Virginia, his executrix who qualified as such. In 1866, she married the defendant who gave bond and qualified as administrator with the will annexed. In 1869, he was removed from his oifi.ee and the plaintiffs, B, S. Atkinson and Henry Sheppard, were appointed in his place, and in 1871, instituted proceedings against the defendant to compel a final settlement of his administration.

<p>Will — Construction of — Bequest of Another’s Property.</p> <p>1. A devisee or legatee cannot claim both under a will and against it. If the will gives his property to another, he may keep his property, but he cannot at the same time take anything given to him by the will;</p> <p>Therefore-, where a testator bequeathed to certain of his children, a fund arising from a policy of insurance which belonged to all his children equally, and directed that in the event the fund should be used in the payment of debts, the bequest should be made good out of his land and the residue of the land divided among all his children equally; Held, that the children not included in the bequest should be required to elect either to take their respective shares of the insurance money and abandon all claim to the land; or to abandon their shares of the insurance money, and take the shares of the land given to them by the will.</p> <p>2. It is only when a party put to an election is under a disability, that the Court will order a reference or account for the purpose of ascertaining what is to his advantage.</p>

Special PROCEEDING commenced in the Probate Court of Yadkin, and heard at Chambers- on the 18th of December, 1876, before Cloud, J. .The plaintiffs are Henry Hart, executor, and Alfred Williams, a legatee of Nicholas L. Williams, who died in 1866, leaving a last will and testament as follows : “ 1.

Case Agreed beard at Spring Term, 1876, of LeNOIR Superior Court, before Seymour J. One E. T. West died in Lenoir County in 1865, leaving a last will and testament appointing tbe defendant bis… Held: “ that the will showed an intention to keep the estate together until the youngest child reached the age of twelve, so that the widow and her family might have a support.

<p>Civil AotioN for the Construction of a "Will, tried at Spring term, 1877, of Burke Superior Court, before JFurches, J.</p> <p>The testator, John Caldwell, died in 1856. Tod R. Caldwell was appointed executor, and upon bis death Robert C. Perkins was appointed administrator with the will annexed, and instituted this action against the defendant legatees and their representatives, asking for a construction of the will of John Caldwell, and for an account by the representative of •the executor of said testator. No decision was made upon the questions involved in the controversy for the, reason that the material facts were not ascertained. His Honor granted an order to take the account as demanded by plaintiff and the defendants appealed.</p>

Civil Actior tried at Spring Term, 1877, of Harnett1 Superior Court, before MoKoy, J. This was an issue of Devisavit Vel Non and the jury rendered a verdict in favor of the caveators. The case was brought to this Court on appeal by plaintiffs.

Civil ActioN to recover Possession of Land tried at January ■ Special Term, 1877, of Wake Superior Court, before Schenck, J. The case is sufficiently stated by Mr. Justice RodmaN in delivering the opinion of this Court. Upon issues submitted .and under the instructions of His Honor there was a verdict for the plaintiffs. Judgment. Appeal by the defendant. cited 1 Sugden on Powers, 334, 2 Ibid, 138-154; Hill on Trustees, 478-486; Adams Eq. 100; Bat.

Civil ActioN for tbe Cancellation of a Deed and other relief, tried at Spring Term, 1875, of Caldwell Superior Court, before Mitchell, J. The plaintiffs are J. W. Wilson, G. N.Eolk, J. C. Tate* H. E. Bond, W. D. Sprague and E. M. Davis. The defendants are the Western North Carolina Land Company and J. G. Ralston its President.

This was an Action to recover Damages for Breach of Contract, instituted in Craven and removed to and tried at Spring Term, 1874, of Cahteket Superior Court, before Clarke, J. There was an appeal from the judgment of the Court below, and in this Court, the appeal was dismissed. Same ease, 72 N. C. 498. At June Term, 1875, of this Court, the defendant moved to re-hear the case, and for a certiorari to bring up the case for review as on appeal, which motion was allowed.

<p>Restitution — Receiver—Praetiee.</p> <p>1. When this Court has decided that certain tenants of II were wrongfully evicted, and ordered writs of restitution, these writs must issue and must be obeyed, and possession of the premises restored to H or his tenants, before the Court will entertain any motion for the appointment of a Receiver to collect and hold the rents and profits.</p> <p>2. Whenever the contest is simply a question of disputed title to property, the plaintiff assorting a legal title in himself against a defendant in. possession, receiving the rents, &c., under a claim of legal title, a Receiver will not be appointed, even if the defendant is insolvent.</p> <p>3. A Receiver will be appointed only when plaintiff sets forth an apparently good title, not sufficiently controverted in the answer, and shows-imminent danger of loss by defendant’s insolvency.</p> <p>4. The bond required of defendants under C. O. P. § 382, is not for costs-only, but secures plaintiffs such damages as they may sustain in the-loss of rents, &e., and it seems that this bond may be increased in the discretion of the Court if defendant shows any disposition to delay a trial.</p> <p>{¡Rollins v. Rollins, 76 N. C. 201, cited, commented on and appproved.</p>

<p>Indiotment for Murder tried at Spring Term, 1877, o£ Haywood Superior Court, before Henry, J.</p> <p>Tbe defendant was indicted for killing one Creighton Morrow, and on tbe trial in tbe Court below His Honor refused to admit evidence of tbe general character of tbe deceased for violence, and also refused to admit evidence of threats made by tbe deceased, which had not been communicated to tbe defendant. .The case is sufficiently stated by Mr. Justice ByNum in delivering the opinion of this Court. Tbe jury found tbe defendant guilty of manslaughter. Judgment. Appeal by defendant.</p> <p>1, The Judge erred in refusing to admit evidence of tbe •character of tbe deceased. Cases in North Carolina reviewed: In Tackett’s case, 1 Hawks, 210; Tilley’s case, 3 Ire. 424; Barfield’s, 8 Ire., 344; Hogue’s, 6 Jones, 381; Floyd’s, ibid., -396; Bottoms v. Kent, 3 Jones, 154; tbe question is not fairly presented, whether or not in case of a mutual combat such •evidence is not admissible upon tbe question of self-defence. In other States (except possibly Massachusetts) wherever such evidence has been excluded, it has been in cases where the question of self defence did not arise. Cases reviewed ; York’s, 9 Mete. 93; Fields’, 14 Me ; Pritchett’s, 22 Ala. 39 ; Franklin’s, 29 Ala. 14; Lamb’s, 41 N. Y. 360 ; Jackson’s, 17 Mo. 544. Such evidence admitted in some cases in nearly all the States; Hicks’s, 27 Mo, 588; Keene’s, 50 Mo. 357 ; Lombard’s, 17 Cal. 316; 41 Cal. 640; Dumphey’s, 4 Minn. ■438; and many others which are cited at- length in Horrigan & Thompson’s Cases of Self-Defence, under title, Character. The evidence is clearly admissible “where the immediate circumstances of the killing render it doubtful -whether the act was justifiable or not — (quaere excusable,”) Lombard’s case; “where the killing is under such circumstances as to raise a doubt as to the character of the offence,” Dumphey’s case.</p> <p>2. The tincommunicated threats are admissible to corroborate evidence of the communicated threats, and to explain the character of the assault made by the deceased, and the motives with which he sought out the prisoner. Stokes v. Ihe People, 53 N. Y.; Keener v. The State, 18 Ga. 1Q4^; Haller v. The State, 37 Ind. 57 ; Cornelius v. The Commonwealth, 15 B. Mon. 539 ; Campbell v. The People, 16 Ill. 17. (The brief on the Judge’s charge is omitted.)</p>

INDICTMENT for Murder, removed from Rowan and tried ¡at Spi-ing Term, 1877, of Davidson Superior Court, before Kerr, J. The facts necessary to an understanding of the point decided in this Court are sufficiently stated by Mr. Justice Fatr-oloth. Yerdict of guilty. Judgment. Appeal by defendant. ■

<p>Inclietment — Murder—Evidence-Declarations of Third Party.</p> <p>1. On the trial of an indictment for murder, the declarations of a third party which have no legal tendency to establish the innocence of the prisoner are not admissible as evidence in his behalf. Therefore, evidence that a third party “had malice towards the deceased, a motive to> take his life and the opportunity to do so, and had threatened to do so,” is not admissible.</p> <p>2. In such case where the prisoner offered to prove that “some time before the deceased was killed” a third party went in the direction of the house of the deceased with a deadly weapon threatening to kill him , Held, that the evidence was not admissible.</p> <p>(Whether, when proof of the res gestae constituting such third party’s alleged guilt has been given, his acts and declarations are competent in confirmation of the direct testimony connecting him with the fact of the killing,— (¿acere.)</p> <p>(State v. Bishop, 73 JT. 0. 44; State v. May, 4 Dev. 328 ; State v. Duncanr 6 Ire. 23G; Slate v. White, (18 N. (1. 158, cited and approved.)</p>

The ground upon which this motion was based is sufficiently stated by Mr. Justice Beade in delivering the opinion of this Court. His Honor overruled the motion and the defendant appealed.

<p>IndictmeNT for Murder, tried at Spring Term, 1877, of Mecklenburg Superior Court, before Cloud, J.</p> <p>The case is sufficiently stated by Mr. Justice Eaircloth in delivering the opinion of this Court. Yerdict of guilty. Judgment. Appeal by defendant.</p>

INDICTMENT for Burglary tried at Spring Term, 1877, of Eorsythe Superior Court, before Kerr, J. The defendant insisted that there was a variance betweeh -the allegation and the proof. The facts stated by Mr. Justice Rodman are sufficient to an understanding of the opinion. Verdict of guilty. Judgment. Appeal by defendant.

<p>CRIMINAL Aotion tried at Spring Term, 1877, of Ashe Superior Court, before Schenck, J.</p> <p>The defendant was held to answer before a Justice of the Peace for failure to work on a certain public road in Ashe County. (See Laws 1874-’75, ch. 161.) Upon motion of the defendant, the Justice of the Peace dismissed the action upon the ground that the report of the commissioners who laid off said road had not been confirmed by the County Commissioners, and the complainant (the overseer) appealed to the Superior Court. In that Court the jury found a special verdict: (1) that the defendant lives within three miles of said road ; (2) that he had two weeks notice to work on the same; (3) that the overseer did not notify the defendant what kind of tools to bring; and (4) that the defendant refused to work on the road. Thereupon His Honor held that the defendant was not guilty ; for that the warrant was too indefinite and charged no offence, nor did it conclude against the peace and dignity of the State or against the statute. Erom which ruling, Coioles, Solicitor for the State, appealed.</p>

<p>INDICTMENT agaist the defendant, as Overseer of the Poor, for cruel treatment to the paupers under his control, tried at Spring Term, 1877, of "Wilkes Superior Court, before Schenck, J.</p> <p>There was a verdict of guilty, and the defendant moved , in arrest of judgment upon the ground that the indictment was too vague and indefinité; in that, the names of the paupers alleged to have been' maltreated did not appear. And it was insisted that the defendant was not an officer, and that the County Commissioners were the only officers criminally liable. The indictment is sufficiently set out in the opinion delivered by Mr. Justice Rodman. Ilis Honor in the Court below overruled the motion in arrest, and gave judgment that the defendant be imprisoned, four months in the County jail, from which the defendant appealed.</p>

INDICTMENT ’for Larceny tried at Spring Term,' 1877, of Anson Superior Court, before McKoy, J. The defendants moved to quash the indictment on the ground that one of the grand jurors who found the bill ¡against them was disqualified by Bat.

INDICTMENT for Rape,' tried at Spring Term, 3877, of Rowan Superior Court, before Kerr, J. There was a verdict of guilty, and the defendant’s counsel-demanded that the jury be polled, which demand the Court refused. Judgment. Appeal by .defendant.

Criminal Action tried at January Special Term, 1877, of New Hanover Superior Court, before McKoy, J. This was an appeal from the judgment of the Mayor of the City of Wilmington -who imposed a fine of $25 on the defendant for failing to obtain a license as liquor dealer, as provided by a City ordinance. Upon a special verdict in the Court below, His Honor adjudged the defendant guilty. Judgment. Appeal by defendant.

INDICTMENT for Larceny, removed from Cumberland and tried at Spring Term, 1877, of Mooee Superior Court,before McKoy, J. The defendant and others were. indicted for larceny and receiving stolen goods, the property of E. J. Lilley, knowing them to have been stolen. The facts are sufficiently •stated by Mr. Justice Eaieclotii in delivering the opinion •of this Court. Verdict of guilty. Judgment.

<p>Jurors — Indietment—PuUie Officer — Failure to Perform Duty — Private' Statute.</p> <p>1. A juror is not disqualified for failure to pay his taxes for the preceding: year, when the Sheriff had been enjoined from collecting the same.</p> <p>2. The law presumes every act in itself unlawful to have been criminally intended until the contrary appears ; Therefore, where a public officer is indicted for failure to perform a duty required by law, the law raises-a presumption that such failure is wilful, and makes it incumbentupon him to rebut the presumption.</p> <p>3. Upon an indictment under a private statute, it is sufficient if the samé-is set forth by chapter and date and its material provisions incorporated in the indictment.</p> <p>(State v. Powers, 75 N. 0. 281; London v. Ileaden, 70 N. 0. 72, cited and approved.)</p>

INDICTMENT for Murder tried at Spring’ Term, 1877, off FkanKlin Superior Court, before Buxton, J. The exceptions upon which the appeal was taken are set out by Mr. Justice Reads in delivering the opinion of this Court. There was a verdict of guilty. Judgment. Appeal by the defendant.

INDictment for conducting a Lottery, tried at J une Term, 1877, of the Criminal Court of New Hanover, before Meares, J. The case is fully stated and discussed by Mr. Justice Bynum in delivering the opinion of this Court. ■ Upon the ■special verdict His Honor adjudged the defendant not guilty, and Moore, Solicitor for the State appealed.

IndiotmeNT for Assault and Battery, tried at Spring Term? 1877, of Mecklenburg Superior Court, before Cloud, J. The prosecutor, Smith, testified that he was a witness in a trial of an action before a J ustice of the Peace, wherein the present defendant was plaintiff and one Johnston was defendant, and that just after the decision of the Justice was given, this defendant struck Johnston and in a few minutes thereafter drew a pistol, and said to witness, “ You are the…

INDICTMENT for Assault and Battery tried at Spring Term, 1877, of Mecklenburg Superior Court, before Cloud, J. The defendant was indicted for an assault and battery upon her husband. The State introduced the husband as a witness who testified that the defendant struck him with an axe. The defendant objected to this testimony and the opinion of this Court is based upon its competency. Verdict of guilty. Judgment. Appeal by defendant.

INDICTMENT for administering Poison with intent to kill, tried at Spring Term, 1877, of Geanville Superior Court, before Buxton, J. The jury rendered a verdict of guilty and the defendant moved in arrest of judgment; for that the bill did not charge that the defendant administered the poison knowingly and secretly. His Honor overruled the motion and the defendant appealed.

INDICTMENT for a Misdemeanor, triéd at Spring Term, 1877, of Buncombe Superior Court, before Funches, J. The defendant was indicted for selling liquor in violation of Laws 1874-’75, eh. 126 : Sec. 1. “That it shall be unlawful for any person or persons to sell or in any manner give away any intoxicating liquors, or either directly or indirectly receive any compensation for the same, within three miles of the located line of the Asheville and Spartanburg Railroad during the…

Indictment for a Misdemeanor tried at Spring Term, 1877, ■of Wilson Superior Court, before Moore, J. The defendants, Wiley, Erank, John and Buck Tomlinson were indicted as follows : “The jurors, &c., present, that (defendants) did * * unlawfully and wilfully fell trees and place obstructions in the mill race below the mill of one C. E. Einch, the same being & natural passage for water, but not navigable for flats or rafts, whereby the natural flow of water through said mill…

IsdictmeNT for Assault and Battery, tried at Spring Term, 1877, of GuileoRD Superior Court, before Cox, J. The defendants, Jesse F. Hoskins, George J. Cronenberger and John Starr were indicted for an assault and battery upon one Levi Humble.

The defendant, Deaver, a. United States Deputy Collector, and the defendant, J. W. Green, a. United States Commissioner, were indicted at Fall Term, 1876, of said Court, for a-conspiracy to extort money from one Henry Summit, who' was arrested at the instance of these defendants and carried before said Commissioner, to answer an alleged charge of’ defrauding the revenue of the United States in having in his possession manufactured tobacco, without the same being, stamped as…