Volume 78 — North Carolina Reports

Civil ActioN, tried at Spring Term, 1877, of Mecklen-burg Superior Court, before Cloud, J. This action was commenced on the 30th of October, 1871, ánd Stephen, C. Johnston one of'’the defendants, was originally a plaintiff, but was allowed on motion to withdraw from the cause soon after it was instituted.

Civil ActioN tried at November Special Term, 1877, of Burke Superior Court, before Schenek, J. The facts are sufficiently stated by Mr. Justice Rodman in delivering the opinion of this Court. The defendant who had previously demurred, withdrew his demurrer, and the defendant’s counsel then moved upon the complaint and the original answer to dismiss.the case. His Honor declined to grant the motion and the defendant appealed.

Civil ActioN tried at Fall Term, 1877, of Pamlico Superior Court, before JTure, J. This action was commenced before a Justice of the Peace, under the Landlord and Tenant Act, to recover possession of real estate. ' The defendant claimed title in himself to the premises, and at the hearing in July, 1877, asked leave to file his answer in writing, raising the question of jurisdiction. The Justice refused the motion and gave judgment for the plaintiff.

■MotioN for a Certiorari heard at' January Term, 1878, of .The Supreme Court. The defendant filed his petition for a certiorari at June Term, 1877, of this Court, and upon the hearing at this term the mótion was not allowed, and the petition dismissed.

<p>Appb-al from a Judgment vacating an Order of Arrest, made at Spring Term, 1877, of Cumberland Superior Court, by McKoy, J.</p> <p>The case is sufficiently stated by The Chief .Justice in delivering the opinion of this Court.</p>

Civil ActioN tried at Spring Term, 1877, of Wake Superior Court, before Buxton, J. The^ facts are embodied in the opinion of this Court delivered by Mr. .Justice Bynum. There was judgment in the Court below for the plaintiff and the defendants appealed.

Civil ActioN, tried at Eall Term, 1877, of Pitt Superior Court, before Cannon, J. This action was commenced in a Justice’s Court for the recovery of $181.89,alleged to be due by account to Francis A. Bernard, the intestate of plaintiff, for services rendered to defendant as clerk in a store.

■ The plaintiff’ filed an affidavit stating that he had discovered (since the decision in this case, 76 N. C. 311) that at the time of the purchase of the land in controversy, the. defendant Thomas J. Smith had actual notice of the místate in the deed and knew that rent had been paid to the plaintiff by the other defendants ; that when said land was sold by the auctioneer, it was sold subject to a-lease and claim.' for rent of the affiant; that John W. McGregor, jvho acted’…

MotioN by plaintiff to amend Process, heard at Chambers in Salisbury, on the 10th of May, 1877, before Kerr, J. This motion was made in an action of claim and delivery .instituted in-Davie Superior Court by the plaintiff against the defendant for the recovery of two mules alleged to be illegally detained by the defendant, a resident of Davidson County.

Civil Action, tried at Fall Term, 1876, of Rowan Superior 'Court, before Cloud, J. This was an action brought on the 6th of Óctdbéfr,' 187Í, to recover the value of a promissory note under seal executed by the defendants to the plaintiff, for a debt clue by their intestate, and the case was referred to the Clerk of the Court to take an account of the administration of the estate •of the defendants’ intestate (John Foster,'Sr.).

Civil Action, tried.at Fall Term, 1877, of Craven Superior Court, before Eure, J. The plaintiff alleged that the defendant entered into possession of a certain lot in the City of New Berne under a ¡contract of purchase with Mrs. Mary Chadwick, who agreed upon the payment of a certain sum of money to execute a Jeed for the same; that if the payment was not made as stipulated in the contract, then it should be null and void ; ¡that Mrs. Chadwick subsequently conveyed to the…

APPLICATION o£ the plaintiff to require the defendant as-executor of B. J. Crawley to give bond, beard at Eall Term,. 1877, of Randolph Superior Court, before Buxton, J. This proceeding was commenced before the Clerk of said Court upon an affidavit of the plaintiff,to the effect that the defendant’s testator was indebted to him in a certain sum, and that by reason of the alleged insolvency, of the defendant, and the fact that he had given no bond for the. faithful…

MotioN to set aside a Judgment heard at Fall Term, 1877,. of Buncombe Superior Court, before Schenck, J. The plaintiff obtained a judgment final by default against the defendants at a former term of said Court, in an action based upon a former judgment or decree of the late Court-of Equity.

Civil AotioN, tried at Fall Term, 1877, of Davidson Superior Court, before Cox, J. It was alleged that an award in a certain suit was filed at Spring Term, 1867, of the late Court of Equity for Davidson County, to which no exceptions were taken, and upon which it was decreed that March & Hampton, plaintiffs, ■should have judgment against John W. Thomas, defendant, {intestate of defendant in this action) for $1409,25, and that execution should issue'therefor; that said decree…

Civil ActioN, removed from Mecklenburg and tried at Fall Term, 1877, of Cabarrus Superior Court, before Kerr, J. This proceeding was instituted by the plaintiff to condemn the land of defendants through which its road was built, and Commissioners were appointed by the Clerk of the Superior Court .under an Act of Assembly, who-assessed damages in favor of the defendants in an amount which was. alleged by tbe plaintiff to be excessive. .

On the 13th day of July, 1869, the plaintiff as administrator of John Brigman, filed his petition in the Probate Court of Buucombe County, against the heirs at law of the intestate for license to sell for assets certain lands which had descended to them. All the defendants except Kelsy Brigman, who was then a non-resident, accepted service of the summons, and it was duly returned to Court.

Civil AotioN, in the nature of a Quo Warranto tried at Fall Term, 1877, of Ihedell Superior Court, befere Cloud, J. This action was brought by the plaintiff upon the representations of parties interested under C. C. P. § 366, to annul the charter of the Bank of Statesville.

<p>Practice — Creditor’s Bill — Bank—Injunction—Receiver.</p> <p>In an action wherein certain creditors of an alleged bank, which had never organized under the terms of its charter, but under the ownership and control of one S had done business in its corporate namej were plaintiffs in a creditors bill, and the executrix of S and certain other creditors who after the death of S had obtained judgments against the bank and were seeking to collect them, were defendants; in which action the plaintiffs demanded that the judgments in favor of the defendants be declared void, that the supposed assets of the bank be declared part of the estate of S, and that an account be taken, &c , and obtained an injunction in the Court below restraining the defendant creditors from proceeding to collect their judgments and the defendant executrix from paying any of the debts of the bank or of her testator ; It was held, that the injunction should be continued until the hearing, a Receiver of the bank assets appointed, and the issue of fact arising in the action submitted to a jury unless by consent they should be submitted to a Referee.</p>

Civil Action, commenced in a Justice’s Court and.tried on appeal at June Special Term, 1877, of New IIanoveR. Superior Court, before Seymour, J. The case was opened by the defendants, the evidence in whose behalf was, that in 1874 they executed and delivered to one Eiest Meyer twelve notes of $125 each for the rent of & house for three years, and payable at'intervals of three months.

Civil ActioN, tried at Spring Term, 1877, of Wake Superior Court, before Buxton, J. This action was brought to recover the value of .certain personal property (mules, cattle, hogs, &c.,) belonging to the plaintiff, and which was located upon a farm on an Island in the Roanoke River, in Northampton County, which farm had been owned by the plaintiff, but was under mortgage to one Zollicoffer. There was no dispute about the value-of the property.

Motion to dismiss an Appeal heard at Eall Term, 1877, -®f CleavelaNd Superior Court, before Kerr, J. The .statement embodied in the opinion of this Court delivered -by Mr. Justice Reade is sufficient to an understanding of the point decided. His Honor refused the motion to ■dismiss and the plaintiff appealed.

The action in which the order was made, was commenced before a Justice of the Peace to recover $100, and upon the •suggestion of the defendant that the title to real estate was involved, therein, the Justice dismissed the case, and the plaintiff appealed to the Superior Court. When the case was called for trial the defendant stated that his answer filed in writing before the Justice, had been lost, and the plaintiff denied that such answer had been filed.

Civil ActioN, commenced before a Justice of the Peace, and tried on appeal at Fall Term, 1877, of Ieedell Superior Court, before Cloud, J. The facts are sufficiently stated by The Chibe .Justice in delivering the opinion of this Court. His Honor gave judgment for the plaintiff, and the defendant appealed. relied mainly upon the decision in Humphreys v. Buie, 1 Dev. 378. Stay of execution, Rev. Code oh. 62 § 11; Statute of limitation, Ibid cb. 65.

Civil Action, commenced before a Justice of tbe Peace? &nd tried on appeal, at June Term, 1877, of New Hanover Superior Court, before Seymour, J. Upon the trial before the Justice, the defendant moved to dismiss the action for want of jurisdiction, because there was only one defendant, and he resided in a County other than that of the Justice.

The plaintiff's alleged that the defendants had instituted an action of Forcible Entry and Detainer before a Justice of the Peace against them, and were prosecuting the same in the Justice’s Court without authority of law, and demanded that said Justice be restrained and prohibited from proceeding further in said action, and that the same be transmitted to the Superior Court of Wake County.

<p>Pleading — Demurrer—Amendment--Jurisdiction.</p> <p>1. Where a complaint, in an action brought b/legatees and devisees under the will of A against the next-of-kin and heirs-at-law of A, (the executor of A being dead and there being no administrator d. •b. n. or administrator of the executor) alleged that A died siezed and possessed of a large number of tracts of land of large size (without otherwise describing them), located in four different counties .and of great value, and possessed of large personal property and effects, all of which was directed to be sold by the executor ; that th<7 executor had fraudulently obtained releases from the plaintiffs of their interest in the estate (without describing the instruments of release or the interest of plaintiffs); that such of the lands as had not been sold by the executor had descended to the heirs-at-law, the defendants, who were therefore tenants in common with plaintiffs, and prayed for an account and settlement and partition ; It was held, that the complaint was demurrable.</p> <p>2. In such case it was error in the Court below to overrule a demurrer to the complaint and allow the plaintiffs to amend ; the demurrer should have been sustained, and the plaintiffs required to pay costs, and then it was within the discretion of the Court to allow the plaintiffs to amend the complaint.</p> <p>■3. In such case the action was properly brought to the Superior Court in term time.</p>

Civil Action, tried at Fall Term, 1877, of Mookú Superior Court; before Seymour, J. ' The plaintiff brought this action against K B. Kelly,, administrator of M. P. Morrison, and the defendant* demanding payment Of a- certain sunl Of money. The defendant answered the complaint, alleging satisfaction of the debt by Compromise.

Civil Action, commenced in a Justice’s Court and tried ■on appeal,at Fall Term, 1877, of Alamance Superior Court,' before Buxton, J. A jury trial being waived, His Honor found the facts as follows:— In 1853, Mary, Margaret and Phoebe Gray gave their note to the plaintiff’s intestate and made several payments which were credited thereon, and in January, 1863, they went to him tp make another payment of $200, but there being no space on which to enter -.the credit, a new note…

Civil AotioN, tried at Spring Term, 1876, of Montgom-ERY Superior Court, before Buxton, J. The plaintiff brought this action to recover possession of a gray mare belonging to his intestate, under the provisions of C. C. P. Title IX, Chapter 2, — Claim and Delivery of personal property.

PROCEEDING to enforce a Lien for Advances for Agricultural Purposes commenced by affidavit before the Clerk and lieard upon issue joined at Fall Term, 1877, of Richmond Superior Co,urt, before Seymour, J. Upon the trial it appeáred that the parties had entered into a written contract in which the plaintiff, merchant, agreed to furnish supplies to the amount of $700 to the defendant, planter, to enable him to cultivate a crop, in con-¡¿deration of which, the defendant agreed…

Civil ActioN for Divorce a mensa et thoro, tried at Fall Term, 1877, of Row AN Superior Court, before Cox, J. The plaintiff alleged among other things that she suspected the defendant of improper intimacy with one Louisa Nash who was introduced by the plaintiff as a witness and testified (as stated in the case) that she lived as a servant in the family of plaintiff and defendant, and that during the absence of the plaintiff' from home she had carnal intercourse more than…

<p>APPLICATION for an Injunction to restrain the defendant-from collecting certain taxes, heard at June Special Term, 1877, of New Hanover Superior Court, before Seymour, X The plaintiffs alleged that the defendant, (Board of Aldermen) by virtue of an ordinance passed on the 18th of .January, 1875, levied a tax of two per cent, upon all the real estate in the City of Wilmington for the year 1875, and that by Art. VII § 9 of the Constitution, all taxes levied by any Town or City are required to be uniform upon all property in the same, not exempted by the Constitution that the defendant exempted from taxation' for said year, the stocks of goods of all the merchants in said City, which were on hand on the 1st of April, 1875, by means whereof the amount of the assessed value of the personal property was reduced by at least the sum of $700,000, and that said exemption imposed the burden of taxation upon the real estate and personal property (other than the stocks of goods-aforesaid) to the amount of the tax properly derivable from* said stocks of goods, and that said discrimination, in favor of said merchants is in violation of said constitutional provision, and renders the whole 'tax list void ; that the real estate of plaintiffs, valued at $3667, is included in said tax list which has been delivered to the City Tax Collector who* has advertised that unless the tax payers of said City shall pay their taxes, he will sell their property for the same; whereby a cloud would be put upon the title of the plaintiffs to the said real estate; and that plaintiffs have commenced a civil action, &c., and therefore demand judgment that the defendant be perpetually enjoined from collecting the tax lSvied as aforesaid, &c.</p> <p>The defendant,-after admitting that said merchants were not required to list their stocks of goods in 1875, as alleged in the complaint, and averring that in lieu thereof they were required to pay a monthly license tax, based upon the monthly sales, for carrying on their business, which license tax was uniform and ad valorem, — -denied that any extra burden of taxation was thrown on the real estate or personal property as alleged b}*- plaintiffs; but on the contrary averred that the revenue derived from the license taxes was greater than if the stocks of goods on hand on the 1st of April, 1875, had been taxed two per cent, upon the value thereof which was not exceeding the sum of $500,000. The defendant further alleged that the revenue of the City for said year was insufficient to pay the current expenses for the same, and the interest on its bonded debt, and that' plaintiffs were included among the list of delinquent taxpayers for said year.</p> <p>The plaintiffs, replying, alleged upon information and belief that since the year 1868, with the exception of 1875,. the merchants in said City have annually listed and paid taxes on stocks of goods as other property was taxed, in addition to the monthly license tax for the privilege of carrying on business; and that said stocks were listed before the Township Trustees for the year 1875, according to their value in money.</p> <p>Upon the hearing, His Honor gave judgment for the plaintiffs, and the defendant appealed.</p>

<p>Taxation--Purchases of Liquors, &c. — U. S. Internal Revenue Tax— - ’ Stamps.</p> <p>1. A dealer in spirituous liquors, &c.;in listing the amount of his purchases for taxation under the revenue act (Laws 1876-7, ch. 156, § 10) is not entitled to deduct therefrom the amount of the U. S. Internal Revenue tax upon said purchases. *■</p> <p>2. Liquors, &c., subject to the U. S. Internal Revenue tax can not be purchased before they are properly stamped.</p>

MotiON to vacate an Injunction to prevent the collection of certain taxes heard at. Chambers on the 24th of December 1877, before Moore, J. The action in which this jnotion was made, was.brought by the plaintiffs on behalf of themselves and all the other tax payers, &c., to restrain the collection of a certain tax by the officers of the Town of Tarboro.

Civil Action, tried at Spring Term, 1877, of Cabakrus Superior Court, before Cloud, J. This action was brought to recover the value of a promissory note made in South Carolina on the 7th of March, 1862, by the firm of Govan Mills & Co., (of which the defendant is alleged to be a member) to Kirby & Wilson (of which the plaintiff is surviving partner) in the sum of $216.35 payable one day after date.

' Civil ActioN, tried at January Special Term, 1878, of Rowan Superior Court, before Kerr, J. L. O. B. Branch, at the time of his death in 1862, owned ten coupon bonds of this State, and six coupon bonds of Virginia, each in the sum of $1000, and issued before'the war, which were in possession of his wife in the City of Raleigh. 'In November of that year, administration on his estate was granted to the plaintiff.

Civil ActioN, tried at Jane Special Term, 1877, of New TIanover Superior-Court, before Seymour, J. The demurrer of defendant admits the facts as alleged in the complaint, and they are these:— On the 30th of July, 1861, David, Daniel and Jacob Kahnweiler were merchants and co-partners in business in the City of Wilmington, North Carolina, under the name of Kahnweiler & Brothers, and on that day were indebted to the plaintiff, Karl Kahnweiler, in the sum of $1900, the said…

Civil Action to recover the amount of a Fire Insurance Policy tried at Fall Term, 1877, of Iredell Superior Court, •before Cloud, J. The plaintiff insured with the defendant a certain stock of goods which he then had in a certain store house in Iredell County, against damage by fire, from noon on ■the 20th of November, .1875, to noon on the same day, 1876. On the,16th of November, 1876, the stock of goods was totally destroyed by fire.

<p>Fire Insurance — Premium Notes — Stipulation of Forfeiture — Waiver —Estoppel—Evidence— Contemporaneous Declarations.</p> <p>1. Where in an action to recover upon a policy of fire insurance, the testimony of P (one of the parties insured)-was attacked by proof of declarations made by him during the progress of the fire, whereupon P one being recalled testified that he had made such declarations while excited and confused by the fire, without reflection, &c ; Held, that other declarations of P as to the state of bis mind, made. to another witness-during the continuance of the fire, were contemporaneous with the first- and admissible in evidence.</p> <p>2. In such case, evidence that shortly after the fire, the condition of P” was such as to excite the attention ef one of his friends who in consideration thereof advised P to take a drink of liquor, was relevant and! admissible.</p> <p>3. Where, in such action, it appeared that the premium for the insurance-was not paid in cash but a note given therefor, and the policy contained! a stipulation that “no insurance sljall.be considered as binding until the actual payment of the cash premium ; but where a note is given for cash premium, it shall be considered a payment, provided the notes are paid when due, and it is hereby stipulated and agreed by and between the parties that in case of loss or damage by fire to the property herein insured, and the note given for the cash premium or any part thereof shall remain unpaid and past due at the time of such loss, this poliey shall be void It teas held (the said note having been past due and. unpaid at the time of the fire) that evidence that the defendant company by previous transactions with plaintiff and others had extended similar note*, would warrant a jury in coming to the conclusion that the defendant was estopped from denying an agreement for extension and insisting upon a forfeiture.</p> <p>4. If an insurance company intentionally by language or conduct leads its-policy holders to believe that they need not pay their premium notes promptly and that no advantage will be taken of the failure, it is equivalent to an express agreement to that effect and is a waiver of any forfeiture expressed in the policy therefor.</p>

<p>Civil ACTION, for Damages, commenced in Cumberland, and removed to and tried at Fall Term, 1877, of MooRE Superior Court, before Seymour, J. .</p> <p>The facts are sufficiently stated by Mr. Justice Rodiian in delivering the opinion of this Court.'</p> <p>The counsel for defendant requested the Court to charge:</p> <p>1. That the plaintiff was not entitled to recover.because he is presumed to have used the water with notice that at sometime the swamp would be drained ; certainly he is not entitled to recover for a diversion of water which became necessary by reason of the addition of machinery erected after defendant’s charter. Declined.</p> <p>2. That the plaintiff’ is not entitled to recover because he ■has failed to show 20 years uninterrupted occupation or user of the water, in himself or those under whom he ■claims. Declined.</p> <p>3. That if the water diverted was surface water, the plaintiff'is not entitled to recover. Given.</p> <p>4'. That plaintiff’ cannot recover against the individual defendants. Declined.</p> <p>It is not deemed necessary to set out the instructions of His Honor, as they are not reviewed here, except as to one point which sufficiently appears in the opinion.</p> <p>Under the instructions .given, the jury returned a verdict for the plaintiff Judgment. Appeal by defendant.</p>

Civil ActioN on an Official Bond tried at Fall Term, 1877, of Pitt Superior Court, before Gannon, J. The relator as Treasurer of Pitt County, brought this action against Wilson the Sheriff and the' sureties on his $10,000 bond as Tax Collector, alleging a failure to pay over the special taxes collected for the year 1876.

Civil Action on an Official Bond tried at Fall Term, 1877, of Pitt Superior Court, before Cannon, J. The relator as Treasurer of -Pitt County brought this .action against Wilson, Sheriff, and Whitehead, surety, on his $21,000 general tax bond executed in 1876, and upon the pleadings His Honor held that the bond sued on was not liable -for any loss in the matter of the special taxes, but was liable for the sum of $5105,24 admitted to be due on .account of thq general taxes,…

<p>Civil Actiok, tried at June Special Term, 1877, of Wake* Superior Court, before Buxton, J.</p> <p>This action, was originally brought against David A. J enkins, Public Treasurer, and after his term of office expired, the present defendant (his successor) was made a party. The plaintiffs insisted that in consequence of the effect of the Act of Assembly in extending the time for the collection of taxes, they,- as sureties, upon the bond of T. F. Lee, Sheriff' •of Wake County, who had failed to pay taxes collected for a certain period, were (not having had notice of said extension) ■discharged from all liability in respect thereto, for that, the forbearance to the principal released the surety ; and they •demanded judgment that the Public Treasurer be enjoined from proceeding further to enforce the execution of a judgment which had been obtained against them as sureties aforesaid, in consequence of the default of their principal, and that said judgment may be declared void.</p> <p>His Honor held that said judgment be vacated, and that the Public Treasurer be perpetually enjoined from collecting ■the same. From this ruling the defendant appealed.</p>

<p>Civil ActioN upon an Official Bond tried at Fall Term, 1877, of Columbus Superior Court, before Moore, J.</p> <p>This action was brought by Isaac Jackson, former Clerk of the Superior Court of Columbus County, against W. Q. Maultsby, former Sheriff of said County, and the sureties on his official bond, to recover certain costs due the plaintiff and sundry other persons who vrere witnesses in various suits, and the Sheriff who preceded the defendant in said office. Upon the hearing, Ilis Honor being of opinion that the Clerk could only recover the costs due him, and that all the other parties entitled to costs as set out in the complaint must bring their separate actions to recover the same, gave judgment for the plaintiff, Jackson; and refused to give judgment for the costs due the witnesses &c. From this ruling the plaintiffs appealed.</p>

<p>Civil ActiON, upon an Official Bond tried at June Special ‘Term, 1877, of New Haxoveu Superior Court, before /Seymour, J.</p> <p>This action was brought against the defendant who was-.•one of the sureties on an official bond of James C. Mann as Clerk of the Superior Court, conditioned for the faithful performance of his duties, &e. It was alleged among othe,r ■tilings that said Mann as Clerk aforesaid had failed to pay to plaintiff the amount of certain taxes on Inspectors’ licenses which he had collected for the plaintiff in pursuance of Private Acts of 1870-71 ch. 6,and judgment was demand-ad for the amount of said bond, to be discharged upon payment of the sums received for the said licenses.</p> <p>The defendant demurred to the complaint and assigned .as cause, (1) that according to the true intent and meaning of said Private Act, the said Mann was thereby declared and appointed to be a fiscal agent of the plaintiff, and the •duty of receiving and paying over to the City Treasurer said license taxes was imposed upon him as such fiscal agent, and not as a part of his official duty as Clerk of the Superior ■Court of New Hanover County; nor did the money arising therefrom come into his hands by virtue or color of his office as Clerk aforesaid ; and (2) that according to the true intent and meaning of the bond sued upon and the condition thereof, this defendant cannot be held liable for the default of James C. Mann, the Clerk, in not paying over to the plaintiff the moneys received by him for the licenses aforesaid ; which moneys, as appears on the face of the complaint, were received by him under a private statute which was passed and ratified more than fifteen months after the execution of the said bond.</p> <p>Ilis Honor sustained the demurrer. Judgment for defendant. Appeal by plaintiff.</p>

Civil Action, tried at Fall Term, 1877, of Wake Superior Court, before McKoy, J. This was an action on the bond of defendant Magnin, in which it was alleged that he was duly elected and appointed Treasurer of Wake County on the 9th of September, 1873, and that on the 19th of said month, said Magnin and the other defendants, his sureties, executed their bond payable to the State in the penal sum of $40,000 conditioned that ■said Magnin as Treasurer of said County and…

Civil Action tried at Eall Term, 18(77, of Wake Superior •Court, before McKoy, J. This was an action on the bond of the defendant Magnin .as Treasurer of Wake County, iri which the plaintiff alleged the execution of the bond in the penal sum of $52,000 conditioned that the said Magnin during his continuance in •office shall faithfully execute the duties thereof, pay out all moneys which may come into his hands and render a true account of the same when required by law.

Civil Action tried at. December Special Term, 1877, of Guildford Superior Court, before Buxton, J. This action was brought by the plaintiffs against the defendants, Madison Graves and the Building and Loan Asso-' ciation of Greensboro, for a specific performance of a contract, of sale by said Graves of an undivided half of certain real estate, the other half having been mortgaged by him to-defendant association to secure a. loan of $500.

Civil Actiost, for Breach of Covenant tried at Fall Term, 1877, of CahtbRet Superior Court, before Moore, J. The facts are sufficiently set out by The Chief Justice in delivering the opinion of this Court. Judgment for plaintiffs. Appeal by defendant.

Civil Action, tried at Fall Term, 1877, of Nash Superior Court, before McKoy, J. The plaintiff, mortgagor, brought this action against the defendant, mortgagee, for the purpose of setting aside a sale of certain lands, made by tbe mortgagee on the 20th of June, 1873^ under a power of sale in the deed, and at which sale the mortgagee through an agent became the purchaser.

Civil Action brought by the Solicitor of the Sixth Judicial District under Bat.

Civil Action, on an Administrator’s Bond, tried at July ¿Special Term, lBIY, of Cabarrus Superior Court, before ■Cloud, J. This is an action brought by the administrator d. b. n. of Margaret A. Blackwelder, deceased, to recover certain moneys belonging to her estate, which went into the hands of her guardian L. B. Krimmenger, who, dying, the defendant Robinson became his administrator with the will annexed; .against whom and the sureties upon his administration bond the…

<p>- Civil Action tried at Eall Term, 1877, of Edgecombe Superior Court, before Cannon, J.</p> <p>' This was an action upon a guardian bond executed by the-defendants. Upon return of the summons the defendants-■ moved to dismiss the action, for that,/the bond and returns-of the guardian were made in the C'hnty of Martin, where" the guardian qualified and residedMand insisted that the action should have been brougb/f, in Martin instead of' Edgecombe. The plaintiff resisted' the motion, contending that the plaintiff being a resident of Edgecombe, the venue-was properly laid; and that ft most the action could only be removed to Martin for t n' 1 if tLq defendants should move for a removal. The Court iheing of opinion with defendants, dismissed the action, a tt thereupon the plaintiff” askedHisHonortoremove.it to Martin for trial, which-was refused, and the plaintiff appealed.</p>

<p>PETITION to Rebear, filed by plaintiffs and heard at January Term, 1878, of The Supreme Court. •</p>

CONTROVERSY, without action (C. C. P. § 315,) submitted on the 16th of February, 1878, to Seymour, J. The plaintiffs are minor children applying for a homestead and personal property exemption. Their father, W. B. Welch, devised his estate after payment of his debts, and died ; and their mother died soon afterwards, neither one having applied for such exemptions.

Civil ActiON, tried at June Special Term, 1877, of Wake .'Superior Court, before Buxton, J. This action was brought to recover the purchase.money for a house and lot in the City of Raleigh, and the defend.ants objected to the judgment rendered for the plaintiff in •the Court below, for that, it was adjudged, that the title to -the same (which came to them in the manner set forth in ■the opinion of this Court) was notin the defendant, Jones, .and that the premises be sold to…

Civil Action for Possession of Land, tried at Spring. ■Term, 1817, of Randolph Superior Court, before Cox, J. The plaintiff owned a tract of land on which he lived,, and two other small tracts not connected therewith. He-conveyed the tract on which he lived to his daughter to defraud his «’editors.

Civil ActioN, tried at Spring Term, 1877, of Wake Superior Court, before Buxton, J. The case states: The plaintiff had heretofore obtained! and docketed a judgment against defendant L. M. Green7 at June Term, 1875, of said Court, for $2132 as security for C. B. Harrison.

Civil Action to recover Possession of Laud, tried at ; Spring Term, 1877, of Granville Superior Court, before Buxton, J. The defendant, Lydia, was one of the heirs at law of John Eerrill who died in 1846, seized of real estate which descended to Lydia and her brothers and sisters as tenants in • common. The defendant W. E. Akin and the said Lydia intermarried in March, 1846, she being then,seventeen years of age. .

<p>Deed of Trust — Possession of Trustee — Presumption of Fraud— Bebuttal.</p> <p>1. The presumption of fraud arising upon a deed of trust, executed by an insolvent person to secure one of his creditors, conveying a storehouse and lot, a stock of goods and the increase of-such stock, and containing a provision that the trustor “ shall have'the privilege of continuing his business for one year,” is not rebutted by proof that the debt secured by the trust deed is a bona fide debt, and that the . insolvency of the trustor was unknown to the trustee and cestui que-trust at the time of the execution of the deed.</p> <p>2. In such case the presumxition of fraud arises from the fact of the debtor’s insolvency and the further fact that the trustee and cestui que trust axe parties to a deed of trust-which secures a benefit to the-maker, a¡nd which conflicts with the rights of creditors.</p>

<p>Trustee — Attorney’s Fee — Commissions—Practice—Referee’s Report.</p> <p>1. The defendant J purchased certain lands of G (sold under a deed of trust) at the request of G for the benefit of his daughters, with money borrowod with G’s knowledge at one-and-a-half per cent., interest monthly ; afterwards a contract was entered into in which •J agreed to resell the land and that if on such sale he should realize any profit after paying the purchase money, costs and charges, &c. he would hold the same for the use and benefit of the said children of G ; J thereafter sold the lands and realized more than sufficient to reimburse himself ; for services in relation to the purchase, sale, &c., J paid an attorney $500 ; in an action for an account and settled anent brought by the daughters of G, It was held,</p> <p>i(l) That the sum of $500 was excessive and J was entitled to credit for only $200.</p> <p>(2) That under the contract he was not entitled to commissions.</p> <p>(3) That he was entitled to credit for the amount paid as interest at one-and-a-half per cent from the time the money was borrowed to the sale of the lands by him.</p> <p>(4) That he was not entitled to credit for money paid to G for articles furnished by G to his daughters while living with him.</p> <p>2. If there is no evidence to support the findings of fact reported by a Referee, they will not be sustained ; they are presumed to be right unless shown to be wrong.</p>

Civil Action, tried at Fall Term, 1877, of G-ranville: Superior Court, before McKoy, This action was brought to recover the sum of $550 and interest alleged to be due by bond, and as the purchase' money of a certain tract of land, of which it was alleged that the plaintiff was equitable owner in fee. The defendant denied that he bought the land of the plaintiff, but-admitted that the legal title to the same as set forth in the complaint was vested in M. II.

Civil ActioN, tried at Fall Term, 1877, of WilsoN Superior Court, before JSure, J. The plaintiffs brought this action to recover, an amount, alleged-to be due on account of a certain note executed by-Henderson Hocutt. The Referee to whom the case was referred found the following facts:— 1. Henderson Hocutt executed a deed of trust to the defendant, J. M. Taylor, on the 9th of January, 1867, conveying real and personal property to be sold to pay his debts. 2.

«Civil ActioN upon a Bond to recover Money alleged to be due, and for damages, tried at Spring Term, 1877, of .Sampson Superior Court, before Seymour, J. The facts necessary to an understanding of the opinion are set out by The Ohiee Justice. Yerdict and judgment for plaintiff. Appeal by defendants.

Civil ActioN, tried on appeal from a Justice’s Court at Spring Term, 1877, of Warren Superior Court, before Bux-ton, J. This action was brought to recover the value of certain-goods delivered by the plaintiff to the defendant company,, and consigned to Belcher, Parks & Go., of New York, in which it was alleged that defendant failed to safely deliver the same as agreed upon.

Civil ActioN, for Damages removed from Mecklenburg and tried at Fall Term, 1877, of Cabarrus Superior Court, before Kerr, J. This action was brought to recover damages for the loss of eighty-five bales of cotton which the plaintiff alleged he had delivered to the defendant company at Ridgeway, South Carolina, to be transported to Charlotte, North Carolina, and that the defendant negligently failed to notify the ■consignee of its arrival in Charlotte, and negligently lost the…

Civil Actior for Damages, tried at Spring Term, 1877, of' Wake Superior Court, before Buxton, J. On the 31st of January, 1872, the plaintiff being about to remove to the State of Louisiana, delivered to the defendant’s agent at Raleigh, a bale of goods, and took from the agent a receipt in these words ; Marks, &e. Receipt for Goods. “North Carolina R. R. Raleigh Station, Jan. 31st, 1872. Received from A. Gr.

Civil ActiON, for Damages, removed from Forsythe and tried at Fall Term, 1877, of Davie Superior Court, before Cox, J. The plaintiff was in the employ of defendant company and brought this action to recover damages for injuries received in coupling its cars. See same case, 76 N. C. 320.

<p>Negligence, Proximctfé and .Remote — Damages, Proximate and Remote.</p> <p>1. "Where the negligence of the defendant is proximate and that of the plaintiff remote, an action for damages can be sustained although the plaintiff is not entirely without fault; but if the injury sustained by he plaintiff is the product of mutual or concurring negligence,, no action for damages will he.</p> <p>2. Where, in an action for damages against a rail-road company for the destruction of plaintiff’s fence by fire, it appeared that the plaintiff’s fence was three-fourths of a mile from the fence which was first ignited by sparks emitted from an engine of defendant, but was connected with it by a continuous line of fence joined together by intermediate land owners, and that the owner of the fence which originally caught on lire was guilty of contributory negligence Held, that the negligence of plaintiff in connectmg“winibucTTfenee was remete and did not affect his right to maintain the action.</p> <p>3. To render a defendant liable in such case, the injury suffered by the plaintiff miinl be the natural and probable consequence of defendant’s negligence ; such a.consequence as under the surrounding, circumstances of the case might or ought to have been foreseen by the wrong-doer as likely to result from bis action.</p> <p>4. Where a lire is negligently kindled and by reason of some intei-\ening cause is carried or driven to objects which it would not otherwise have reached, the destruction of such objects is a remote consequence of the negligence.</p> <p>o. Where in shell action it appeared that the fire caught between 10' and 11 a. m. but had been extinguished in the opinion of those contending with it who had left it, and thereafter it broke out afresh and was carried to plaintiff’s premises ; Held, that the injury was remote and that plaintiff can not recover.</p> <p>(i. In such case, if there was any intervening negligence in the effort to extinguish the fire either by the intermediate land owners or their neighbors who assembled for that purpose, when their endeavors properly executed might have been successful, the plaintiff cannot recover.</p> <p>7. In such case, when the danger is imminent, the law imposes the burden upon the plaintiff to show that he was not negligent.</p>

Civil ActioN, tried at Spring Term, 1877, of Halifax Superior Court, before Buxton, J. The plaintiff’s brought this action to recover the price of a certain amount of guano which they had sold to the defendant.

<p>Civil ActioN, tried at June Special Terra, 1877, of Wake Superior Court, before Buxton, J.</p> <p>The case states: This suit, in form an action of trespass on the case in assumpsit, was instituted on the 11th day-of September, 1866, and in its present aspect is substantially'a controversy in respect to 517 barrels of strained rosin bought by the plaintiffs from the defendants on the 10th of October, 1865, at Wilson, North Carolina, and paid for at the agreed price of $3.50 per barrel. The plaintiffs complain that only 116 barrels came up to the description of the article bought and paid for, and that the remaining 401 barrels in respect to which damages are claimed, were not strained rosin, but a greatly inferior article known as dross rosin.</p> <p>The case was referred to Samuel A. Ashe, Esq., to whose treport both parties filed exceptions. The facts found by him are, in brief, as follows: In October, 1865, the plaintiffs bought and paid for 517 barrels of strained rosin, under a contract in words and figures following, — “ Received of R. G. Lewis seven hundred dollars in cunency in part payment of 500 barrels of strained rosin, at $3.50 per bar-itel, said rosin-to be delivered to said Lewis at the- railroad depot in Wilson,N. 0., within three weeks from date., October 10th, 1865.” (Also like receipt for another lot) Signed by the defendants. The barrels of rosin _ wore selected by ■the plaintiffs on the 25th of October, 1865, at said depot, •out of a large lot — variously estimated at from 2,000 to •4,000 barrels — belonging to the defendants. They selected itheir lot of 517' barrels in the absence of the defendants, but with their consent, having been accompanied to the de-ipot by one of the defendants who left them at work, with implements toeut in and inspect the barrels; and they did inspect such as they chose, and selecting about twenty samples of a superior grade to strained rosin, marked their 'barrels with the initials of their firm, “ L. & M.,” and ¡shipped them to New York, where they represented the whole lot as corresponding with the samples exhibited, and obtained from Dollner, Potter & Co., in December, 1865, an advance of $3,000. Upon inspection in New York, the lot ■did not correspnd with the samples, 'and all of it was not oven strained rosin. Dollner, Potter & Co., then sued these plaintiffs, and to settle with them, the plaintiffs brought this suit and transferred their interest in it to Dollner, Pot-iter & Co. There wras no evidence of fraud on the part of defendants, but there was evidence that in the large number of barrels from which the plaintiffs made their selection, there were a number of barrels of strained rosin greatly in excess of 517.</p> <p>The Referee held as matter of law, that said contract contained a warranty that the rosin agreed to he delivered, should be merchantable as strained rosin; that this warranty was broken as to 401 barrels, and the plaintiffs were entitled to recover; that the measure of damages was the difference between the value of strained rosin at "Wilson on the day of the delivery, and the value of the rosin actually delivered on that^day ; and that the damages so assessed amounted to $327,. with interest from date of demand, to-wit, the date of the service of the summons in this action.</p> <p>His Honor being satisfied that the plaintiffs did not get the number of barrels of strained rosin because of their own mistake^ and by reason of the fact that the suit was brought eleven months after the sale without any notice to the defendants of the mistake, or demand on them to supply other rosin in place of the inferior rosin which the plaintiffs, relying on their own judgment, selected and carried off and sold, reversed the decision of the Referee, and gave judgment against the plaintiffs, from which they appealed.</p>

Civil ActioN for Preach of Covenant, tried at Fall Term,. 1877, of Guilford Superior Court, before Buxton, J. The case is 'sufficiently stated by Mr. Justice ByNUM in delivering the opinion of this Court. Upon the hearing in the' Court below, His Honor sustained the demurrer of defendants and dismissed the action. Judgment for costs. Appeal by plaintiff.

Civil Action, tried at Eall Terra, 1877, of Buncombe Superior Court, before Schenc/c, J. The case is sufficiently stated by The Chief Justice in delivering the opinion of this Court. There was a verdict and judgment in favor of the plaintiff, and the defendant appealed.

Civil Action, tried at Fall Term, 1877, of Wilson Superior Court, before Eure, J. The defendant being indebted to the plaintiffs on a promissory note, was, in the year 1868 or 1869, under proceedings instituted in the proper District Court- of the United States, declared a bankrupt; and afterwards ■ by a decree of the? Court discharged from his debts.

Civil ActioN, to recover “ The Sulphur Springs Lands,” tried atEall Term, 1877, of Buncombe Superior Court, before Schenck, J. In the progress of the trial both parties admitted that the title to the land in controversy was originally iñ W. L. Henry, and that they both claimed under him.

Civil ActioN for Damages for Trespass on Land tried at .Spring Term, 1871, of Duplin Superior Court, before Seymour, J. The plaintiff alleged that he was the owner in fee of certain lands lying near ■ Sarecta on the North East River in Duplin County, and that the defendants had entered upon the same to the annoyance of the plaintiff’s tenants, and were endeavoring to dispossess him of the same.

Civil Actioh, to recover the Possession of Land, tried at Eall Term,1877,of Rutherford Superior Court, before Kerr,J. This action was brought to recover a tract of land ■alleged to be in possession of the defendant and wrongfully withheld from the plaintiffs The defendant denies the plaintiffs’ allegations and sets up title in himself.

<p>Aetion to Recover Land — Practice—Damages.</p> <p>1. In an action to recover land, where both plaintiff arid defendant’ claim under the same person, it is not competent for either to deny that such person had title.</p> <p>2. Wherein such action, a defendants allowed to come in and defend the action as landlord of the original defendants, he can not object that no notice to quit was given to them.</p> <p>3. In an action to recover land and damages for the time the plaintiff' has been kept out of possession, damages are recoverable up to the time of the trial.</p>

Civil ActioN, to recover Possession of Land tried at Fall 'Term, 1877, of Surry Superior Court, before Cox, J. This was a case of disputed boundary. The defendants’ deed called for a chestnut ridge where it comes to Mitchell’s river, including the waters of Southard’s branch. There are two such ridges terminating on said river, about a half of a mile apart, and either would include said branch ; and the •question submitted was, — which was the ridge called for by the deed.

<p>Action to Recover Land — Practice—Damages— Costs.</p> <p>In an action to recover land, where the verdict of the jury establishes- ■ the title of the plaintiff to the land in dispute but does not find any wrongful act done by the defendant to the land to which title is thus established, the plaintiff is not entitled to recover damages or costs.</p>

Special ProceediN& commenced in the Probate Court and upon issues joined, removed to and tried at Spring; Term, 1877, of Duplin Superior Court, before Seymour J. The plaintiff alleged that he was tenant in common with the defendants in certain lands (1900'acres) lying on Cypress Creek in Duplin County, and fr®m the rent of which the-defendants had received a considerable sum of money, and asked that an account be taken of the amount of said rent to the end that he may have…

¿CONTROVERSY without action (C. C. P. § 315) involving the Construction of a Will submitted at Fall Term, 1877, of Ruthebroud Superior Court, to Kerr, J. The only part of the will of the testatrix (Ann E. Birchett), material for the decision of the Court, is as follows: “ I bequeath to my sisters Nancy (plaintiff) and Martha (defendants’ intestate) each one thousand dollars * * * and in. the event of the death of either without leaving natural heirs,. the amount I have…

Civil Actioh for the Construction of a Will tried at Spring Term, .1877, of ITalieax Superior Court, before Bux-ton, J. • Turner Bass died in September, 1873, having previously made a will and appointed his widow Rebecca W. Bass, executrix. The will was proved shortly after the testator’s death, ánd she accepted the trust of the office.

<p>CONSTRÜCTION of a Will, heard at Spring Term, 1875, of •Cabarrus Superior Court, before 8chenck, J.</p> <p>Ezekiel Johnston, late of Cabarrus County, died in the month of July, 1874,. leaving a last will and testament which was duly admitted to probate. The defendants were appointed executors, and after qualifying as such, they assumed the execution of the trust reposed by the will, the two items of which bearing upon the question decided by this Court, are embodied in the opinion delivered by Mr. .Justice BvNüm. The plaintiffs contended that they were entitled to an account to ascertain the principal of the sum alleged to be due them, out of that portion of the testator’s ■estate to which they were entitled as legatees for life, and to have the same paid over to them with the accrued interest; but the defendants insisted that they were not entitled to the principal of the legacies, but only to the interest and profits arising therefrom, and that the language of the will by a proper construction applied to the-personal and real estate alike, — it being the intention of the testator that the plaintiffs should only have the use of the realty for life ; and that only the interest accruing from the legacies .should be paid to them during their lives.</p> <p>His Honor held that it was the duty of the-executors to self the personal pi’operty and pay over the interest on the fund so acquired (after paying debts) to the legatees -for life, annually, and the principal to the children at the death of said legatees; and as to the land devised, the Court held that Mary Howie (now Ritch) and Martha Euqua were entitled to a life estate, and to the possession and use thereof -during their lives. From which ruling the plaintiffs appealed.</p>

Civil ActioN for tbe Construction of a Will tried at J une Special Term, 1877, of Wake Superior Court, before Bux-ton, J. Catherine A. Edmonston died in the month of January, 1875, leaving a will in which she disposed of her estate, real ■.and personal, as follows: — ■ In the second clause of her will she bequeathed to her niece, Rachel Jones, during her life, “ the annual interest on $4000 to be paid her annually by my (her) trustee and executor hereinafter named.” In the…

<p>Civil ActioN to recover Possession of Land, tried at Eall Term, 1877, of MecKLENburu Superior Court, before Kerr, J.</p> <p>A. C. Miller died intestate in Mecklenburg County, and the plaintiffs — Sophia Ellwood, M. J. Orr (wife of J. L. Orr) and T. J. Wilson — were his only heirs at law. The land described in the complaint was in the possession of the defendants who claimed the same under the will of Susannah Alexander, only the 5th item of which accompanies the ■case, and is ; — “ I give, &c., to Silas Orr my plantation to have and to hold in trust for the sole use of my two daughters during their natural life time * * * said plantation to be equally divided as near as can be by three persons chosen for that purpose * * * each of my said daughters to hold and have the use of the part they now live on. And it is further my will that after the death of either of my daughters * * * that the part of the place occupied by them be rented out by said Silas Orr, and the proceeds equally divided between my three grandchildren, R. A. Plummer (and the other defendants) until the death of the other daughter, at which time it is my will that my plantation * * * be equally divided into three lots between my three grand-children * * *.</p> <p>The plaintiffs claimed under a deed from the Sheriff executed on the 25th of July 1869, to their ancestor, A. 0. Miller, who was the purchaser at an execution sale. This deed • conveyed the interest of defendant R. A. Plummer (the defendant in the execution) in said land to said, purchaser:</p> <p>It was agreed that if the Court should be of opinion that the interest of said defendant, in the land devised by said will to the daughters for life, was liable to be sold under execution against the defendant during the life of said daughters, then there shall be judgment for plaintiffs, otherwise judgment for defendants. His Honor adjudged that plaintiffs do recover, and the defendants appealed.</p>

Civil AotioN for the Construction of a Will heard at Fall Term, 1877, of Caldwell Superior Court, before Cloud, J. David Settlemoir died in April, 1840, leaving a last will .and testament, as follows ; * * * “ I will my plantation that I now live on with all the adjoining lands to my son George S. Settlemoir after his mother’s death the plantation that my son George now lives on lying in Burke County three hundred and fifty acres to be sold after he gets possession of the…

<p>Issue of Devisavit Vel Non tried at Spring Term, 1877, of EdgecoMbe Superior Court, before Eure, J.</p> <p>The issue was, — “ whether the said paper writing or any part thereof, and if so what part, was the last will and testament of Me. G. Jones.” It was in evidence that the testator was not a man of strong mind, and was suffering from physical disease, but was competent to make a will, and had given the directions to his counsel who wrote it, in an intelligible manner. It was also in evidence that he was a monomaniac about lewd women, publicly indulging insex-ual intercourse with them, disgustingly vulgar, and so utterly devoid of moral qualities and feelings as to render him morally a complete brute, was not susceptible to shame and had no idea of the moral obligations of kinship. He was-pronounced insane by physicians who examined him about eight months before he executed his will.</p> <p>The plaintiffs (legatees and propounders) are the husband and children of a deceased sister of the testator, and the defendants (caveators) are his only brother and sister. The-formal execution of the will was proved and no exception made thereto. The propounders opened and closed the evidence and the argument without objection. The Court in charging the jury said that the burden of proving the insanity as alleged was upon the caveators, and that they must satisfy the jury by preponderance of-testimony. The caveators excepted to the charge, in that (1) His Honor erred in holding that moral debasement, and want of moral perceptions, and appreciation .of the obligations of kinship,, would not of themselves constitute insanity, and incapacitate one for making a will; (2) His Honor erred in holding the burden of proof to be on the caveators and not on the= propounders; and (3) His Honor erred in permitting the-pro"pounders to open and conclude. ■ Verdict and judgment for plaintiffs. Appeal by defendants.</p>

The plaintiffs, propounders of the will of Me. G-. Jones, deceased, appealed from so much of the judgment as directs the costs of action to be paid by the administrator with the will annexed out of the assets of the testator’s estate, upon the ground that the Court had no power to render such judgment. (See preceding case).

Special PROCEEDING for Dower commenced in the Probate Court and tried on appeal at Fall Term, 1877, of Iredell Superior Court, before Cloud, J. Robert J. Simonton died in the year 1876, in Iredell County, leaving a last will and testament in which he named the plaintiff (his widow) his executrix, who instituted this proceeding in June, 1877, against the creditors of her testator, to have her dower allotted.

Special Proceeding- for Partition of Land commenced in the Probate Court, and heard on appeal at Eall Term, 1817, of RobesoN Superior Court, before Moore, J. The facts sufficiently appear in the opinion of this Court delivered by The Chiee Justice. The defendant, John Patterson, moved to dismiss the proceeding upon the ground that he was sold'seized of the land. Motion denied. Appeal by defendant.

CumiNAL Action heard at Fall Term, 1877, of Guilporu .'Superior Court, before Buxton, J. The Mayor of Greensboro issued a warrant for an affray :against the defendants in the above entitled action, and upon the trial before him, they were adjudged guilty and a -fine imposed, from which judgment the defendant, Shields, ^appealed; and His Honor upon motion of defendant’s counsel dismissed the case, for that, the Mayor had no jurisdiction, nor was the particular city ordinance…

Indictment for a Misdemeanor, tried at November Term,, 1877, of Wake Criminal Court, before Strong, J. The defendant was charged with abandonment of his wife and pleaded former conviction, and the jury returned a special verdict as follows :— 1. On the 22d of May, 1877, the defendant abandoned his wife without providing for the adequate support of herself, and her child begotten upon her by the defendant. 2.

The transcript of the case sent to this Court sets out an indictment against the defendant for an attempt to assist prisoners to break jail, which, was found at Spring Term, 1877, of WayNE Superior Court, and states : “That the defendant by his Attorney agrees to submit and does submit to the judgment of the Court upon the following facts,— namely ; it is a fact that Joe Erown, George Holland and Caesar Whitfield were prisoners in the common jail of Wayne County; that the…

PETITION for a Writ of Certiorari, filed by the defendant and granted at June Term, 1877, of The Supreme Court. The record states substantially; — On the 22cl of May, 1877, the defendant caused a notice to be served by the Sheriff upon the Solicitor of the District of his intention to apply for a writ of certiorari, and on the following day a •copy of his petition was likewise served.

INDICTMENT for an Assault and Battery tried at Fall Term, 1877, of Watauga Superior Court, before Cloud, J. The defendant and his three sons were indicted for an ’ assault upon one Purley.

<p>Assault with Intent to Commit Rape — Effeet of Impeaehing Évi~ denee — Judge’s Charge.</p> <p>1. Evidence introduced by the State on the'trial of a criminal action ' for the purpose of impeaching the testimony of a witness for defendant can have that effect only and can not be considered by the jury as substantive evidence of the defendant's guilt.</p> <p>2. On the trial below, it was in evidence that a certain witness introduced for defendant had made statements inconsistent with her testimony on the trial; the defendant asked the Court to charge “ that the evidence could be considered by the jury only for the purpose of impeaching the testimony of the witness and not as substantive-evidence of defendant’s guiltthe Court charged “ that if the-jury believed from the evidence that the two statements were inconsistent, theta it would be for them to say whether her first statement or her evidence at the trial was the truth Held, to be error ? the Court should have guided the minds of the jury as to the application of the impeaching evidence. '</p>

■ INDICTMENT for an Assault with intent to commit Rape, tried at Rail Term, 1877, of Wilkes Superior Court, before Cloud,'J. It was in evidence that the defendant was in the employment of the father of the female child undér ten years of age, upon whom the offence was alleged to have been committed, and on a certain occasion, the father hearing a noise therein went to his barn and found the defendant on the child, she being on her back with her clothes up, and discovered…

<p>Issue of Paternity in a Proceeding in Bastardy tried at Fall Term, 1877, of RobesoN Superior Court, before Moore, J.</p> <p>The case is sufficiently stated by Tiie Chiee Justice in delivering the opinion of this Court. Yerdict of guilty. Judgment. Appeal by defendant. (See State v. Bowles, T Jones 579.)</p>

Indictment for a Misdemeanor under Laws 1876-77, ch. 274, § 8, tried at August Term, 1877, of Wake Criminal Court, before Strong, J Special Verdict: 1. The defendant sold to one Smith on the 25th of June, 1877, one bag of commercial fertilizer-known as “Hatchell’s Phosphate,” at the price of five dollars, and delivered the same to him at and in the County of Wake. 2.

<p>Indictment for Disturbing a Religious Congregation tried at May Term, 1877, of "Wake Criminal Court, before Strong, J.</p> <p>The case is sufficiently stated by Tiie Chiee Justice in delivering the opinion of this Court. Verdict of Guilty. Judgment. Appeal by defendant.</p>

Inuictiieht for False Imprisonment tried at Fall Term, .1877, of McDowell Superior Court, before Schenck, J. Michael Geary, the prosecuting witness, testified that the defendant (a Constable) arrested him; that he asked for his .authority, but defendant declined to show him any warranty that h.e asked for the accuser, but no one was given; that defendant put him in jail and kept him there all night; and that on the next day he was taken out, and an investigation Usad before…

IkdictmeNT for obtaining a horse under Ealse Pretences tried at August Term, 1877, of New IIanoveb, Criminal Court, before Meares, J. The bill of indictment was as follows; The jurors &c., present that Joseph Pickett &c., desiring to purchase a horse of Charles B. Eutch,agreed to pay him the sum of eighty dollars; $30 cash and the balance lie would secure by a mortgage on a mule to which the title was perfectly good, and of which ■ the said Joseph Pickett was the sole and…

INDICTMENT for Obtaining goods under False Pretences,, tried at Fall Term, 1877, of Watauga Superior Court, before Cloud, J. The bill of indictment was as follows: The jurors, &c., present, that Robert Munday, &c., unlawfully did falsely pretend to one Joseph Moretz, that he, Munday, was seized in fee and possessed of a certain tract of land lying, (describing the land) and that said Munday had a good title to the same free from all incumbrances whatsoever, by means of said…

IndictmeNt for Forgery tried at Spring Term, 1877, of Craven Superior Court, before Moore, J. No statémenfc of the facts is necessary to an understanding of the opinion of this Court as delivered by Mr. Justice Reade. Verdict of Guilty. Judgment. Appeal by defendant.

MotioN to Remand tbe defendant to Jail, heard at Fall 'Term, 1877, of BuNOOMbe Superior Court, before Schenclc, J. At Spring Term, 1877, of said Court, the defendant was convicted of fornication and adultery, and sentenced by Judge Eurches to imprisonment for six months in the County jail.

INDICTMENT for Incest, tried at Fall Terra, 1877, of Cherokee Superior Court, before Farches, J. The defendant was charged with having had an improper intercourse with his own daughter, and was found guilty by the jury, and upon motion of the defendant’s counsel, His Honor arrested the judgment upon the ground that the bill of indictment did not charge a criminal offence, and Teds? Solicitor for the State, appealed.

<p>INDICTMENT for Larceny, tried at January Special Term, 1878, of Northampton Superior Court, before McKoy, J.</p> <p>The defendant was indicted in two counts, one for larceny and the other for felonious receiving forty pounds of lint cotton, the property of the Seaboard and Roanoke Railroad Company.</p> <p>On the trial the State introduced witnesses who -testified to the following facts : On the night of December 22d, 1877, lint cotton was taken from certain bales of cotton in possession of the company for Uansportation, while of the plat-foi'm of the company’s ware-house. On the same night four guano bags filled with lint cotton, and bearing the mark “ W. C. G-. & Special Compound,” were found, two of them hidden under a freight car that stood on a turn-out near by, :and two others on the track of the road. The defendant was seen the same night behind some cord wood near the place, and was also recognized by his voice.</p> <p>On January 18th following, by the defendant’s direction, some seed cotton was removed from a crib in his possession and about one mile distant from the ware-house, and while being removed two guano bags of lint cotton were discov- ■ ered hidden under the seed cotton. The-cotton in these bags, as well as the bags themselves, and the marks on them corresponded with those found near the ware-house on December 22d, as stated.</p> <p>The defendant insisted that there was no evidence to go to the jury on which they were warranted in finding the defendant guilty of either charge. .The objection was overruled, the evidence submitted to the jury, and a verdict of guilty rendered. Judgment. Appeal by defendant.</p>

Indictment for Larceny, tried at Fall Term, 1877, of .'RANDOLPH Superior Court, before Buxton, J. The defendant was charged with stealing a horse, and upon the trial His Honor admitted evidence of confessions .made by the defendant under the circumstances embodied in the opinion of this Court delivered by The Chibe Justice. Verdict of Guilty. Judgment. Appeal by defen■dant.

INDICTMENT for Larceny, tried at Fall Term, 1877, of Richmond Superior Court, before Seymour, J. The defendant was charged with stealing a hog, and that part of the case bearing upon the point decided by this Court, is as follows; — “ The defendant contended that the pork (which was found in defendant’s house by virtue of a .search warrant obtained by the prosecutor) was part of a hog of his own, and introduced two of his children who testified that he had killed a hog of…

INDICTMENT for Larceny, tried at Fall Term, 1877, of' Burke Superior Court, before Schenck, J. The defendant was charged with stealing meat, and the-property was laid in W. B. McDowell, the depot-agent, at. Morgan ton, of the W. N. C. R. R. Co. After the testimony was closed, the defendant’s counsel asked the Court to-charge the jury that the indictment could not be sustained, because the ownership of the property was in the Railroad,, and not in the agent.

IndictmeNT for Larceny tried at Fall Term, 1877, of Davie Superior Court, before Cox, J. The defendants were charged with stealing fish: — The jurors &c. present that (defendants) &c. five fish of the value Ac. of the goods &c. then and there being found, did felo-niously steal, take and carry away against &e. The names of both defendants were endorsed on the bill of indictment .as witnesses, one against the other, and it was insisted by the counsel for defendants that to…

INDICTMENT for Larceny with a count for Receiving, &c.r tried at Fall Term, 1877, of Randolph Superior Court, before-Buxton, J. Tbe defendant was charged with stealing a horse and mule, the property of Mary E. Bray, or receiving the same-knowing them to have been stolen. The exceptions taken upon the trial are embodied in the opinion of this Court delivered by Mr. Justice Bynum. Verdict of guilty. Judgment. Appeal by defendant.

<p>INDICTMENT for Larceny tried at August Term, 1877, of Wake Criminal Court, before Strong, J.</p> <p>The defendant was charged with stealing a sheep, the property of John Young who was introduced by the State for the purpose of proving certain confessions made by the defendant. The witness stated, on the preliminary examination, that about two months before the time the confessions were alleged to have been mad e, and after the time the sheep was alleged to have been stolen, the defendant had left the State ; that the confessions were made on the morning of his return and at his father-in-law’s; he was not under arrest and no promises or threats had been made to him ; the witness and other persons had been sent for, but nothing was said as to the purpose for which they had come together ; the defendant’s father-in-law stated that he ■(defendant) got back that morning ; witness stated that the confessions were made as soon as he got there and that he ■“ went straight for him” (defendant) and that he heard no one else speak to defendant before the confessions were made. The defendant objected to the evidence as to the ■confessions upon the ground of undue influence, the objection was overruled, and the witness testified, that he said to defendant, “are you not ashamed to try to break up as old •a man as I,am by stealing his sheep and hogs ; the defendant sat a second looking down and said ‘ the first two hogs jou lost I did not get.’ ” It was also in evidence that the defendant left the State on Monday ; that on the Saturday before, there had been a meeting of the citizens of the neighborhood at which a dozen or more were present to consult as to what was tó be done with the defendant “ about his stealing so much,” and they concluded if he would leave the State and never return, they would not “ interrupt'him” on account of the respect they had for his wife and children and for the family of his father-in-law. Thereupon the defendant’s counsel again asked the Court to exclude the confessions previously admitted, which His Honor declined, .and the defendant excepted. It is unnecessary to set out the testimony of other witnesses, as it does not bear upon the point decided in this Court. Verdict of Guilty. Judgment. Appeal by defendant.</p>

INDICTMENT for Larceny, tried at Eall Term, 1877, of An-son Superior Court, before Seymour, J. The defendant was indicted for stealing figs under Bat. Rev., clr. 32, § 20, and the evidence was that the figs grew upon a tree in a field used by the prosecutor for the cultivation of cotton, and that he was in the habit of using them in his family. The tree was not otherwise cultivated than by the cultivation of the field for cotton.

Indictiibnt for Larceny tried at Fall Term, 1877, of Anson: Superior Court, before Seymour, J. t The eáfceptions of the defendants and the facts necessary to an understanding óf the case are sufficiently stated by Mr. Justice Rodman in delivering the opinion of this Court-Verdict of guilty. Judgment. Appeal by the defendants.

INDictment for Burning a Mill removed from Rowan andi tried at Fall Term, 1877, of Davidson Superior Court, before Cox, J. The defendant was indicted as follows: The jurors &c., present that Ransom Jaynes &c., feloniously, unlawfully and maliciously did set fire to and burn one mill &c., the property of John C. Eord and John Lindsay with intent thereby to injure &c. (See Laws 1874-5, ch. 228.) There was no evidence of express malice but there was evidence tending to show…

INDICTMENT for Murder, removed from Rockingham and tried at December Special Term, 1877, of Guileobd Superior Court, before Buxton, J. That portion of the case which constitutes the basis of the decision of this Court, is sufficiently set out in the opinion delivered by The Chibe Justice. Verdict of guilty. Appeal by the defendant.

Indictment for Murder tried at Fall Term, 1877, of Watauga Superior Court, before Cloud, J. The prisoner was charged with the murder of Elisha Trivett, and the statement of the case sent to this Court is substantially as follows: Eveline Trivett, wife of deceased, testified, that on Sun-, day the 24th of June, 1877, her husband started from home saying he was going to one Tice Harman’s to sell his cattle^ She and her children walked with him a part of the way.

<p>INDICTMENT for Murder, tried at January Special Term, 1878, of Nobthampton Superior Court, before McKoy, J.</p> <p>The prisoner was charged with the killing of Joseph Hill, The facts material to the points decided are as follows ; The prisoner, the deceased and others were gathering cotton in a certain field, and in consequence of a dispute between the deceased and a woman (who was a kinswoman of prisoner and engaged at work with them), he seized her in an angry manner, and the prisoner reproved him and remarked that ber husband was crippled and that he could not serve his. wife so. The deceased replied, “ if you make me mad, I would think no more of going to the house and getting Mr. J’s gun and shooting you than nothing.” The prisoner replied, “ if you want to get the gun, you had better go.”</p> <p>He(prisoner) then went to the house a short distance off and returned in about a half hour with a hatchet behind him, and upon approaching the deceased, asked him if he meant what he had said. The deceased said he did, and thereupon the prisoner struck him with the hatchet on the head and killed him.</p> <p>The prisoner,’s counsel asked the Court to charge the jury, “ that if they were satisfied the assault made by deceased upon prisoner’s kinswoman, and the threat he made to shoot prisoner, dethroned the prisoner’s reason, and he did the killing before he had-time to cool, and without malice, it1 was manslaughter and not murder.” His Honor declined to give the instruction as prayed for, but in response thereto said that there could be no murder without malice aforethought, and if the blow had been given to save the woman’s life, or to protect her 'from great bodily harm, he would be guilty of neither; and that the question of cooling time did not arise where there had been no conflict between prisoner and deceased, and where no assault had been committed upon the prisoner; nor where, as in this case, the deceased used a switch in his assault on the woman, and the-prisoner used a deadly weapon after he returned and found the woman in no danger, and that words only -would not mitigate the crime from murder to manslaughter. . The jury returned a verdict of guilty of murder.</p> <p>The priáoner’s counsel moved for a new trial because the Court had said, — when only two jurors had been selected and upon Several other jurors answering that “they had formed and expressed the opinion that the prisoner was guilty,” — “that in the olden times, Judges sometimes pun-ashed men for expressing opinions in such eases, but the Court did not propose to do that. And such expressions might have a tendency to prejudice the community from which'1 jurors were to be selected, and thereby the prisoner might be seriously damaged. Hereafter it was to be hoped that there will be no such expi’ession of opinion in order that fair trials may be had for all who $,re accused of crime.” The motion was denied. Judgment. Appeal by prisoner.</p>

Indictment for Murder, removed from Yadkin and tried at Fall Term, 1877, of Forsythe Superior Court, before Cox, J. The defendants were charged with the killing of one Costin D. Butner.

PROCEEDING under a Peace Warrant liearcl at November Term, 1877, of Wake Criminal Court, before Strong, J. A peace warrant, (in which the prosecutor alleged that he-had reason to fear, and did fear that defendants would do him private injury, &c.) was obtained at the instance of one Paschal], and the defendants were arrested and held to answer before a Justice of the Peace, .who after hearing the evidence adjudged that the warrant be dismissed at the costs of defendants.

<p>Peciee Warrant — Frivolous or Malieious Prosecution — Costs—Imprisonment of Prosecutor.</p> <p>1. A prosecutor in a peace-warrant can be ordered to pay costs where the prosecution is frivolous or malicious ; and if he fail to do so, he can be imprisoned therefor.</p> <p>2. Neither a fine nor costs inflicted as a punishment is a debt within the meaning of the Constitution in relation to this matter.</p> <p>3. The Legislature has the power to prescribe that the prosecutor in a criminal action may be made to pay costs, where the defendant is acquitted and the prosecution is frivolous or malicious.</p> <p>4. There is nothing cruel or unusual in requiring a prosecutor in such case to pay costs.</p>

INDICTMENT for Perjury tried at Fall Term, 1877, of Haywood Superior Court, before Furches, J. ' In 1872, W. G. Royd, the prosecutor, sold a horse to 'William Halcombe for §100. He took a note payable to his mother, Elizabeth Boyd, and Halcombe secured its payment by mortgage on real estate. Boyd sold the land to one Cagle for $125 aud gave him a bond for title upon payment of the same.

INDICTMENT for Assault and Battery, tried at November Term. 1877, of Edgecombe Inferior Court, before H. G. Bourne, IF. T. CM and J. J. Battle, Justices of the Peace. The indictment charged the defendant and three others with an assault upon the prosecutor, and upon the trial the defen lant, Lane, pleaded former acquittal. This plea was sustained by the Court below, and the State appealed to this Court.

<p>Ixihctment for Burning a Stable, tried at August Special Term, 1877, of Burke Superior Court, before Sehenck, -J.</p> <p>After the jury were impannelled, the Solicitor for the -State discovered that the bill of indictment was defective, and moved the Court to withdraw a juror and order a mistrial, insisting that as the offence charged was a misdemean- or, and as the defendant upon conviction would have a right to have judgment arrested, the Court should allow the motion. Ilis Honor being of the same opinion, withdrew a juror and a mistrial was entered. A new indictment was thereupon preferred against the defendant upon which he ivas tried. On this trial the defendant objected to the admissibility of certain evidence,-which sufficiently appears in the opinion of Mr. Justice ByNüm. Verdict of’ Guilty. Judgment. Appeal by the defendant.</p>

IndictmeNt for Burning a Stable tried at Fall Term, 1877, of AlexandeR Superior Court, before Cloud J. It was in evidence ■ that in March, 1877, a stable and mules therein, the property of Wesley Morrison, were consumed by fire, and that soon after the burning, tracks of a peculiar character were discovered in the field where the .stable was situated.

INDICTMENT for an Affray tiied at Spring Term, 1877, of Guilford Superior Court, before Gox, J. The defendants, M. C. Dixon and J. B. Gretter, were indicted for an affray and put upon trial on a new bill substituted for that upon which they had been arrested, and differing from the first, only in the order in which their n.ames appeared on the bill.

INDICTMENT for Murder removed from Bertie and tried at Eall Term, 1876, of Washington Superior Court, before Moore, J. The case is sufficiently stated by Mr. Justice Bynum, in delivering the opinion, of this Court. Verdict of guilty, Judgment. Appeal by prisoner.

.INDICTMENT for Rape, removed from Caldwell and tried at vSpring Term, 1877,>of Iredell Superior Court,, before Sehenck, V. The prisoner was indicted in the following words : The jurors, &c., present that James Laxton, &c., with force and arms in and upon one Nancy L. Barlow in the peace of God and the State then and there being, violently and feloniously did make an assault, and her the said Nancy L- Barlow then and there violently and against her will, feloniously did…

INDICTMENT for Removing Crops tried at Spring Term, 1877, of Guilford Superior Court, before Gox, J. The defendants, Drury Long, D. C. Long, Stephen Hus-sey, Linville Wood and John W. Wood, were charged with removing certain crops in violation of the statute. The facts touching the point decided by this. Court sufficiently appear in the opinion delivered by The Chief Justice. Verdict of Guilty. Judgment. Appeal by defendants.