Volume 79 — North Carolina Reports

The case states: This cause was called for trial by plaintiff’s counsel, after the discharge of the jury, when the defendants’ counsel objected, for that, an issue of fact was raised by the pleadings requiring the intervention of a jury, .and insisted on a continuance.

Civil Action, tried at Spring Term, 1878, of Jones Superior Court, before Kerr, J. The facts bearing upon the point decided appear in the opinion. Verdict and judgment in' favor of plaintiff. Appeal by defendant.

<p>Civil ActioN tried at January Special Term, 1878, of RowaN Superior Court, before Kerr, J.</p> <p>It was admitted that Luke Blackmer was appointed guardian of the fame plaintiff, and that prior to said appointment, the said Blackmer, as clerk and master in equity in obedience to a decree in an ex parte proceeding of the feme plaintiff before her marriage, sold certain real estate near the town of Salisbury, on the 8th of May, 1859, when the defendant became the last and highest bidder at $1,200, ■and that the defendant afterwards — January 30th, 1863— .gave her note to the guardian of the feme plaintiff for the same. The plaintiffs were married in March, 1875, and thereafter the guardian assigned said note to the feme plaintiff, she having arrived at full áge.</p> <p>It was alleged that the note had not been paid and judgment was demanded for the value thereof, but this allegation was deniéd by the defendant who alleged full payment, but had. obtained no title to the land by reason of the fact that the deed which had been executed by said clerk and master was accidently lost or destroyed.</p> <p>The defendant moved to dismiss the action for want of jurisdiction on the ground that it should have been a motion in the cause (the ex parte proceeding .aforesaid). His Honor refused the motion because the said proceeding had been terminated, the case. not having been docketed under the Code, and because the note sued on was made payable to Blackmer as guardian, and not as clerk and master in equity. Defendant excepted. Thereupon the jury were empanelled and the evidence was substantially as follows:</p> <p>The said guardian, witness for plaintiff, testified that he sold the land and took the note to him as guardian as alleged, defendant paid no part thereof, nor did he execute .any deed for the premises ; that he received for defendant as her agent the sum of $5000 in October, 1863, and defendant requested him to appropriate enough of it to pay her said note, which he declined to do; that he and de^ fendant submitted all matters of difference between them, including the note sued on, to arbitrators who decided that the feme plaintiff was entitled to said note, and in pursuance of the terms of said award, the plaintiffs released the witness from all liability; that he had never been the confidential agent or adviser of the defendant, and that said sum received of her was part of the proceeds of sale of property by her to one Hall for $10,000, one half of which she invested in Confederate bonds, and the balance he received as aforesaid, and paid it out for her as she directed, and several hundred dollars besides; and that she at the same lime owed him a considerable sum as clerk and master.</p> <p>The deposition of defendant was then read in evidence. The deponent testified that she paid Blackmer in June, 1862, four hundred dollars on her purchase, and he promised her to appropriate enough of the $5,000 to pay off the balance of the note; that in 1864 he as clerk and master «'xecuted and delivered to her a deed for the premises, which she handed to him to be registered, but was not registered, Blackmer telling her that it had been destroyed during the occupancy of said town by the federal troops, and that he would make her another deed. Deponent also testified that she was sixty-eight years old.</p> <p>Dr. Summerell was next introduced and testified that he was a physician, knew the defendant well, met her about fifteen months before this trial and after she had received a stroke of paralysis, and that he could then discover no impairment of her. faculties. On the cross-examination of this witness, the plaintiff proposed to ask if paralysis did not have a tendency in old persons to impair the mind. This was objected to by defendant, objection overruled, and defendant excepted. The witness then stated that paralysis did have that tendency.*</p> <p>Julia Beard, witness for defendant, testified that Black-mer was for a long time before June, 1863, and until after the close of the late war the attorney and confidential adviser and agent of defendant; that she was present when' defendant asked him to take pay for said premises out of the $5,000; he at first declined, saying he would not accept Confederate money for the properly, but afterwards in the same conversation he' said that be would make an exception with defendant and apply the money as requested and corroborated said deponent in her evidence touching, the lost deed.</p> <p>Upon her cross-examination a letter purporting to have-been written by her on the 5th of May, 1369, to Blackmer was shown to witness and admitted to be hers. The plaintiff recalled Blackmer, who, after recapitulating his testimony in respect to said payments by the direction of defendant, stated that said payments were made between He-, cember, 1868,' and March, 1865. And then the plaintiff put said letter in evidence in which the writer stated substantially that the defendant (her mother) was quite unwell and seémed to be troubled about the title to said property, appealed to Mr. Blackmer to have it arranged, and believed that her mother could prevail upon members of her family to sign the paper writing which he had required as the condition upon which the title would be made.</p> <p>His Honor charged the jury that the note sued on being admitted, the burden was on the defendant to show that it was obtained by fraud, accident or mistake; that it was for them to say whether said letter was inconsistent with any idea that Blackmer had ever made any deed to defendant for the premises. Defendant excepted, and in writing requested the Court to charge, — that there is evidence that the relatipn between the defendant and Blackmer at the time the note was giyen was of such a character as to relieve defendant from proof of fraud, and the fraud was suggested only with reference to the execution of the bond. His Honor declined to give the instruction and the defendant excepted-</p> <p>Upon the issues submitted there was a verdict for plaintiffs. Judgment. Appeal by defendant.</p>

<p>Civil Actiox, tried at January Special Term, 1878, of Rowan Superior Court, before Kerr, J.</p> <p>The facts set out in Lord v. Beard, ante 5, so far as they relate to the appointment of Luke Blackmer as guardian of the feme plaintiff, and the sale of certain real estate as clerk and master under a decree in equity, are applicable to this; case. And the additional facts material to 'the point decided here, are, — that Blackmer sold a large quantity of land to Isaac Lyerly who gave his bond for the purchase money., and the clerk and master retained the title until the payment thereof under the provisions of said decree ; that J. W. Hall (who died before this suit was begun) bought a portion of said-, land from- Lyerly, and at a subsequent term of'the.Court, a decree was made authorizing the clerk and master to, adopt íhé sale by Lyerly to Hall. And thereupon Hall executed to Blackmer as guardian aforesaid a note with good security for the purchase money, and Black-mer gate him a deed for the premises. On failure to pay the note Blackmer brought suit, recovered judgment, and transferred the same to the feme plaintiff in a settlement with her. The plaintiffs now seek by this action to subject said land to the satisfaction of the judgment.</p> <p>It was in evidence that Hall and his sureties upon said note were declared bankrupts; but that before going into bankruptcy, Hall surrendered the possession of the premises to said guardian; and that under the proceedings in bankruptcy, a homestead was assigned to Hall in said land,, and an order made' directing his assignee in bankruptcy to sell the reversionary interest therein, at which sale Lewis. Hanes became the purchaser, and afterward sold his interest with warranty to the defendants in this action, informing them of the equities of the plaintiffs. The defendants: in their answer also admitted the plaintiffs’ allegation, to the effect, that said claim was proved in bankruptcy against Hall’s estate, and that no dividend was ever' declared for the benefit of said guardian.</p> <p>Upon issues submitted, the jury found‘for the plaintiffs. Judgment. Appeal by defendants.</p>

Civil Actios, tried at Spring Term, 1878, of Bertie Superior Court, before Henry, J. This action was heard upon complaint and demurrer upon the state of facts set out in the opinion.

Civil Action tried at Spring Jerm, 1878, of Rowan Superior Court, before Buxton, J. The plaintiffs alleged that the defendant was appointed administrator of Daniel Shaver prior to July, 1869, and that his intestate was indebted to W. B. March (who was subsequently made a party plaintiff in this action) for goods sold and delivered, and for money loaned, according to an account stated ; that the interest of said March was assigned to plaintiffs before the commencement of this…

' Special Proceeding commenced in the Probate Court- and upon issue joined transferred to and heard at Spring Term, 1878, of Buncombe Superior Court, before Cloud, J. The plaintiffs alleged that William Anderson died in. 1856 leaving a last will and testament appointing the defendant his executor, and that they and the defendant are devisees and legatees under the will; they resisted the admission of the will to probate, and thereupon the defendant agreed that if the…

<p>Practice — Nul Tiel Record — Irregular Judgment.</p> <p>1. The plea of nul tiel record is tried by the Court upon an inspection of the record itself, and when the record is regularly certified by the proper officer, it cannot be explained by parol, but is conclusive upon this plea.</p> <p>.2. "W here, upon a sci. fa. to enforce a judgment, the defendant pleads nul tiel record and the Court finds the issue in favor of the plaintiff, such finding is not conclusive as to the validity of the' judgment •denied, but only as to its existence.</p> <p>3. An irregular judgment may be impeached and set aside on motion within any reasonable time upon parol proof that it was not rendered according to the course of the Court.</p> <p>4. Where issues of law and fact are joined in term time before a Court and jury, and afterwards, by consent of counsel, the case is withdrawn from the jury, the facts being agreed upon, and the questions of law left open for His Honor’s decision during tfee session of his Court in a neighboring county, a judgment rendered at such last named Court in the absence of counsel and without argument or ■briefs filed, and not communicated to the defeated party until six months after its rendition, is not irregular, but is conformable to the present practice and to the provisions of the Constitution, Art. IY § 22, and C. C. P. § 815.</p> <p>•5. Where the record in such case states that a jury was duly impan-nelled and found all issues in favor of the plaintiff, upon which the judgment in question was rendered, any party in interest is entitled to have such record amended and made to speak the truth.</p>

Petition to discontinue a public road, filed in Union, and removed to and heard at Spring Term, 1878, of Stanly Superior Court, before Moore, J. The petition was filed by the plaintiffs before the board of township trustees, and upon the hearing before them it was refused, and' the plaintiffs appealed to the board of county commissioners, who affirmed the judgment, and they again appealed to the Superior Court.

MotioN, to vacate an Order of Arrest, heard at Spring Term, 1878, of Union Superior Court, before Moore, J. The plaintiffs recovered judgment against defendant before a Justice of the Peace for one hundred and eleven dollars and seventy-eight cents, and on the 22d day of December, 1877, caused the same to be docketed in the Superior Court. No formal complaint was filed before the Justice, but the note itself was exhibited instead, as the plaintiffs demand.

Civil Action,- in the nature of a Creditor’s Bill brought by a creditor of the estate of defendant’s testatrix, and heard, upon a motion by plaintiff for an injunction to restrain proceedings in a special proceeding brought by the defendant in the Probate Court for a sale of his testatrix real estate to make assets, at Spring Term, 1878, of Wake Superior Court, before Seymour, J. His Honor decided that the action was prematurely brought by plaintiff, and denied the motion…

<p>Practice — Injunction Bond — Reference to Ascertain Damages.</p> <p>1. It is not contemplated, under C. C. P. § 192, that a separate action shall be brought upon an injunction bond; the damages sustained by reason of the injunction shall be ascertained by proper proceedings in the same action, by reference or otherwise as the Judge shall direct.</p> <p>2. It is not error fpr the Court below to direct that issues of fact, raised by exceptions to the report of a Referee appointed to ascertain the damages sustained by reason of an injunction, be submitted to a jury. • •</p> <p>B. An injunction bond is not void, under C. C. P. § 192 because it spe. cities no amount in which the signers to it are bound.</p>

Civil Aotion, tried at Spring Term, 1878, of IIaekneti Superior Court, before Moore, J. The principle facts appear in same case, 77 N. C., 62, and those material to the points now decided by this Court are’ stated.in its opinion. Judgment for. plaintiffs. Appeal by defendants.

Civil ActioN to recover Land, tried at Spring Term, 1878, of Beaufort Supérior Court, before Henry, J. The facts statecHn-the opinion are deemed sufficient to present the points decided by this Court. The plaintiff moved for judgment, but His Plonor held that the issues wére confused and that he could not render judgment thereon, and ordered them to be reformed and granted a. new trial, from which ruling the plaintiff appealed.

Civil Aotion commenced in Cabarrus and-removed to ¿nd tried at Januáry Special- Term, 1878', of RowAN Superior Court, before Kerr, J. At Eall Term, 1876, the plaintiff moved for a reference lo the clerk to state an account of partnership dealings between him and defendant, Waring, to ascertain the amount due plaintiff as alleged in his complaint; The defendant, Maxwell, was surety upon a bond of his co-defendant conditioned for the faithful performance of the partnership…

Civil AotioN, tried at Spring Term, 1877, of Pitt Superior Court, before Eure, J. This action was brought upon an instrument of writing as •set. out in the opinion, and upon the trial before a Justice of the Peace, the defendant pleaded general issue, statute of limitations, payment, accord and satisfaction, and a want of ■notice and demand. Judgment was rendered for the plaintiffs, and the defendant appealed to the Superior Court.

PETITION for Partition of Land filed in 1874, in the Probate Court, and heard on appeal at Fall Term, 1877, of Richmond Superior Court, before Seymour, J. It was alleged that the parties were tenants in common of certain lands which descended to them as heirs at law of Malcolm Blue.

PetitioN in the Cause filed by the defendants and heard at Spring Term, 1878, of Pasquotank Superior Court, before Furches, J. The facts are stated in same case, 77 N. C. 421.

Civil Actiok, tried at Spring Term, 1878, of Chow AN Superior Court, before Furches, J: It appeared that upon the petition of the feme plaintiff and other tenants in common, the defendant was appointed commissioner to sell certain lands, that the sale was made, the money collected by the defendant, title made to the purchaser, and the fhnd paid to the parties entitled, except the feme plaintiff, who complains and alleges that the defendant is indebted to her in the sum of…

Civil Action tried at January Special Term, 1878, of Cumberland Superior Court, before Buxton, J. This action was commenced before a Justice of the Peace on a note for two hundred and fifty dollars, due January 1st, 1874, on which the plaintiff had made an endorsement remitting seventy-five dollars of the principal money. The residue,one hundred and seventy-five dollars,was the sum demanded in the summons.

Special PROCEEDING, commenced in the Probate Court of Chowan, and heard on appeal at Chambers, in 1877, before Eure, J. The plaintiff executor filed a petition in the Probate Court to sell the land of' his testator, John Skinner, to pay-debts. His personal property was of the value of $ — , and fully sufficient to discharge the same.

Motion, to dissolve an Injunction heard at Pall Term, 1877, of Caldwell Superior. Court, before Cloud,, J. The complaint states that in 1864 William Carroll owned a large estate consisting of lands, slaves, and other property, and being advanced in age, he determined to divide his lands among his three sons, William, James and John.

MotioN to remove the Cause heard at Spring Term, 1878, of Comlubus Superior Court, before Eure, J. The material facts appear in the opinion. His Honor refused the motion and the defendant appealed. (See same case, 75 N. C. 585.)

<p>Civil Action tried at January Special Term, 1878, of New Hanover Superior Court, before Moore, J.</p> <p>This was an action for damages for an alleged breach of contract, and the facts are sufficiently stated in the opinions delivered. There was a verdict for plaintiff, judgment, and appeal by defendant. '</p>

Civil Action, tried at June Special Term, 1878, of Waice Superior Court, before Seymour, J. Upon the opinion of this Court in same case, 78 N. C. 323, (where the main facts are stated) being certified to the Court below, and upon argument of the question of damages as found for the plaintiff by the referee, His Honor amended and corrected the report as to facts in the following particulars:— 1.

' Civil ActioN, tried at Fall Term, 1877, of New Hanover Superior Court, before Moore, J. The plaintiff bank was duly chartered by an act of assembly ratified on the 12th of January, 1872, and by a power alleged to have been granted, it took a mortgage on. the 6th of April, 1873, from Moffit & Co., merchants in the city of Wilmington, to secure payment of $20,000 advanced to enable them to carry on business. This mortgage was proved and registered on the 9th of July, 1873.

PbtxxioN to rehear heard at June Term, 1878, of The Supreme Court. The defendant asked that the case (as decided and reported in 78 N. C. 834) be reheard for the following reasons:— 1. That he is advised that the holding of the Court,— that the liability of John Brigman to the Miners and Planters bank upon his note to said bank was not discharged by the drafts of R. B. Yance, — is erroneous. 2.

<p>Contraet — Inspection of Lumber in Wilmington — Vendor.</p> <p>The provisions of the) “act concerning Inspector of lumber in Wilmington” (Priv. Acts 1874-5, ch. 155) are for the benefit of the vendor ; and a sale of timber upon an inspection and measurement not in accordance with the act, the vendor making no objection thereto, is binding upon him.</p> <p>(Observations by Smith, C. J., upon the necessity of a “statement of the case” in a record sent up to this Court on appeal.)</p>

Civil ActioN tried at Spring Term, 1878, of Mecklen-burg Superior Court, before Cox, J. It was alleged that the plaintiffs, a firm doing business in Boston, sold to the defendants a lot of bagging, and brought this action to recover the price thereof. The defence set up was that the transaction was had with one J. Y. Bryce, and that after shipment of the goods, they were seized in Norfolk as the property of Brice, to satisfy a certain debt he owed to a Norfolk house.

Civil Action commenced in a Justice’s Court and tried on appeal at Fall Term, 1877, of Mooeb Superior Court, before Seymour, J. On the 6th of February, 1875, a summons was issued in the name of E. A. Craven who was then the owner of the-note, which is the subject of this action, and directed to Killis Gibbs, A. M. McNeill and W. B. Richardson, the defendant, requiring them to appear before the Justice and answer, &c., or judgment would betaken against them for the sum due…

Oivil Action, tried at January Special Term, 1878, of Halifax Superior Court, before Schenck, J. On the 21st of October, 1871, the parties to this action entered into a contract for the sale and purchase of a tract of land, as follows“ Know all men, &c„ that plaintiffs have this day bargained and sold to defendant a certain tract of land, adjoining * * * on condition that defendant pay So60 in five equal installments, (the first payment to be made in cash, and notes to be…

Civil Action, tried at Spring Term, 1878, of Wake Superior Court, before Seymour, J. The plaintiff brought this action for an alleged breach of a contract which is substantially as follows: This agreement made on the 30th of May, 1876, between the plaintiff and defendants, witnesseth, that the plaintiff covenants to establish a weekly agricultural journal, * * * and the defendants covenant to furnish the plaintiff with a paid up list of annual subscribers, not less than…

Civil ActioN trid at January Special Term, 1878, of RowaN Superior Court, before Kerr, J. The plaintiff brought this action against the defendants as administrators with the will annexed of John I. Shaver upon his endorsement of the following instrument: “ One day after date I promise to pay John I shaver or order the sum of $101.25, value received. Witness, &c.r this 28th day of February, 1872.

, Ciyil ActioN, tried at Spring Term, 1877, of- Sampson Superior Court, before Segmour, J. On the 6th of March, 1869, the' defendant sold and conveyed to one B. L. Scott a tract of land. Scott gave his note for the purchase money, and secured its payment by a mortgage on the land.

PROCEEDING under the statute, Bat. Rev. ch. 91, for processioning land, heard on appeal at January Special Term,. 1878, of Wayne Superior Court, before Eure, J. The plaintiff gave notice in writing to the defendant that •on the 3rd of April, 1877, he would with the county surveyor proceed to procession his land adjoining defendant’s, which was accordingly done and a report and plat made by II, G. Maxwell, the surveyor ; and on the 12th of April following, it was certified to…

PROCEEDING for Draining Lands commenced before the Clerk, and heard at Spring Term, 1878, of Edgecombe Superior Court, at Chambers, before Henry, J. The defendant objected to the jurisdiction, the objection was sustained by the Court, on the ground that the proceeding should have been commenced by summons returnable to the Court at term time as provided by ch. 222, Laws 1876-77, and the proceeding dismissed, from which ruling the plaintiffs appealed.

<p>Description of Land — Boundary—Course and Distance — Mistake.</p> <p>1. A call in a grant for a line “ beginning at the mouth of a gut, supposed to be J’s bounds, running along his supposed line south 300 poles in the pocosin to or near the head of Speller’s creek &c.” indicates that there was no established and known line, and the course and distance being certain in themselves must govern.</p> <p>2. In such case the call being from an established corner “ south 300 poles in the pocosin to or near the head of Speller’s creek,” the course and distance must prevail, without being controlled by the words “ to or near the head of Speller’s creek.”</p> <p>3. In such case, to repel the allegation that there was a mistake in the mathematical call by course and distance or that there was any intention to make the head of the creek the terminus of the line irrespective of course and distance, it is competent to consider all the calls of the grant and also the diagram made at the time of the entry and survey and referred to in the grant.</p> <p>4. In such case, it was unnecessary as a matter of fact to ascertain where was the head of Speller’s creek, because as a matter of law the terminus of the line was at the end of the course and distance called for.</p> <p>■5. The Courts will construe “ east” to mean “ west,” in the call for a' line in a grant, when the mistake is obvious and fully corrected by the other calls and an annexed plat.</p>

Civil Actioh, tried at Fall Term, 1877, of Mecklehburg Superior Court, before Kerr, J. It was alleged, among other things, that in 1868 one-Davis recovered a judgment against the plaintiff, upon which an execution issued and was levied by the sheriff on the land of plaintiff; that defendant, being aware of the plaintiff’s embarrassments and desiring to aid him, agreed, to buy the land at sheriff’s sale, and hold the same for plaintiff’s benefit and reconvey to him on payment…

Civil ACTION commenced in Mitchell and removed to and tried at December Special Term, 1877, of McDowell Superior Court, before McKoy, J. This action was brought to recover a tract of land, and the material facts relating to the claims of the plaintiff and defendants to the possession are stated in the opinion of this Court. The following is the evidence to which the defendants’ exceptions apply: 1.

<p>Action to Recover Land — Argreement to Convey Land — Power of Executors — Evidence.</p> <p>1. On the trial of-an action to recover land, it appeared that in 1841, J and R agreed in writing to convey to W, upon the payment of the purchase money, certain lands, the boundaries of the same as set out in the agreement being definite ; afterwards, upon the payment of the purchase money, J and the executors of R (then deceased) executed a deed to W ; the locus in quo was embraced in the deed but it was disputed as to whether or not it was embraced in the agreement; Held,</p> <p>(1) That the agreement to convey was the joint contract of J and R.</p> <p>(2) That the executors of R had no power to convey his estate in any land not embraced in the agreement.</p> <p>(3) That admissions in writing of J as to what boundaries were intended to be conveyed by the agreement were not admissible as evidence against the representatives of R.</p> <p>2. In such action the provisions of the Code do not prevent the plaintiff from demanding a specific performance of the agreement on the part of the representatives of R, notwithstanding the action was instituted prior to 1868.</p>

Civil Actiox, commenced before a Justice of the Peace and tried on appeal at January Special Term, 1878, of Halifax Superior Court* before Sehenelc, J. The plaintiff demanded payment of a balance alleged to-be due on the purchase of a tract of land, and for money overpaid in settlement of an action which was compromised between plaintiff and defendant, the facts relating to which are sufficiently stated in the opinion. J udgment for plaintiff. Appeal by defendant.

Civil AotioN, to recover Land, tried at Spring Term, 1878, of Halifax Superior Court, before Seymour, J. The case was referred, and the report of the referee states that on the 2d of October, 1860, one C. M. Clark conveyed the land in dispute to the plaintiff, and described it as “ beginning at the north corner of A. M. Riddick’s store.” &c. The defendant is the widow of Samuel B. Hyman, deceased, and is in possession of the land as part of her dower, her husband having…

Civil ActiÓN, removed from Cleaveland and tried at Spring Term, 1878, of GastoN Superior Court, before Cox,J. The plaintiff alleged that be was in possession of a stock of goods by virtue of a deed of trust executed to bim by James W. Ware for tbe benefit of bis creditors, and that be was endeavoring to carry out tbe purposes of tbe trust in good faitb; that said goods so possessed by bim were wrongfully seized by tbe defendants and converted to their own use.

<p>Civil ActioN tried at Spring Term, 1878, of LinoolN Superior Court, before Cox, J.</p> <p>On the 4th day of September, 1874, H. P. R. Caldwell, who owned certain lands in Autauga county Alabama, for natural love and affection and a nominal pecuniary consideration, conveyed them to her son James A. Caldwell in fee with covenant of title. At the same time and as part of the same transaction, they entered into the following written agreement:—</p> <p>North Carolina, 1 Burke County. J</p> <p>The deed made by Hannah P. R. Caldwell of said county and State, to James.A. Caldwell of Lincoln county in said State, on the 4th day of September, 1874, for 255 acres, 50 acres and 800 acres, known as the Woodburn tract on Autauga creek, and 77 acres of land in Autauga county, State of Alabama, lying on Bear creek swamp, the first of these tracts being lands devised to her by Tod Robinson, the last being a tract purchased by her from Neill Robinson, is made with the understanding that the same is to be his, to be disposed of as he sees proper. And said lands, or the proceeds if sold to be his during his life, and at his death the said lands, or if sold the proceeds, to belong and to be given by him to William Cornelia Henderson, and in case she be dead, then to be given to her children, that is, the children born of her body.</p> <p>Witness : H. P. R. Caldwell,</p> <p>John D. Shaw. J. A. Caldwell.</p> <p>The deed and agreement have both been proved by the same subscribing witness and registered in Autauga county where the lands lie. In his lifetime James A. Caldwell sold a portion of the lands for the sum of sixteen hundred dollars (of which the feme plaintiff has received two hundred dollars), and died intestate in March, 1876. The defendant has administered on his estate. This action is to enforce the trust and compel payment of the residue of the sum for which the land was sold, out of the personal estate of the intestate in the hands of the defendant.</p> <p>The Court gave judgment for the plaintiffs and the defendant appealed.</p>

Civil Action to recover Land tried at Spring Term, 1877, of Onslow Superior Court, before Seymour, J. The material facts are embodied in the opinion of this Court. The jury rendered a verdict in favor of defendants, and His Honor upon a question of law.reserved gave judgment for the plaintiff and the defendants appealed.

Civil AotióN to foreclose a Mortgage heard at January Special Term, 1878, of ‘Wayne Superior Court, before JEure, J. The plaintiff and his wife contracted to sell to W. J. Forehand a tract of land, and delivered him a deed therefor, which deed it was alleged was never properly acknowledged and proved. The title to the land was in the.plaintiff’s wife.

Civil Action to recover Land, tried at Spring Term, 1877, of BeRtie Superior Court, before Eure, J. The plaintiffs claim under a mortgage executed to them by one Vernoy, to secure advances for agricultural purposes-on the 2nd of March, 1874, and duly recorded on the 10th of that month.

Civil Action, tried at Eall Term, 1877, of Mecklenburg Superior Court, before Kerr, J. This action was brought by the plaintiff as trustee of McMurray & Davis against the Merchants & Farmers, the Traders, and the Eirst National banks of Charlotte, asking the Court to direct the proper distribution of funds in his hands among the trustors’ creditors.

Civil ActioN to recover Possession of Land, tried at Spring Term, 1877, of WilsoN Superior Court, before Kerr, X The case states that in January, 1866, one Robert Williams executed to the plaintiff, who was his brother-in-law, a deed in trust conveying the land in dispute to secure the debts therein mentioned, to wit, one debt of $2000 to Polly Morgan, the mother of the grantor, one note for $500 in favor of S. II.

Civil Action, tried at Spring Term, 1878, of New Hanover Superior Court, before JEure, J. This action was brought by the relator as treasurer of New Hanover county, against the defendant as surety upon the bond of one James C. Mann, clerk of said Court. It was alleged that said clerk had failed to account to plaintiff in a certain sum due as a tax on sundry judgments rendered in civil actions in said Court.

The plaintiffs are citizens and residents of this State, and owners of a certain number of shares of stock in the Peoples National Bank of Fayetteville, but are not residents of the town of Fayetteville, nor do they carry on any business in said town.

This was an action by the plaintiff to recover the amount of a certain tax paid under protest to the defendant, sheriff of Bladen county, and the following are the facts agreed upon : The plaintiff is a retail liquor dealer, having been regularly licensed as such by the proper authorities in said county.

Civil ActioN tried at Spring Term, 1878, of Halifax Superior Court, before Seymour, J. This action was brought to recover the amount of a fire’ insurance policy issued to plaintiff by defendant company upon a stock of drugs and medicines which were after-wards destroyed by fire. The facts applicable to the point decided by this Court appear in its opinion. Under the instructions of His Honor the jury found for the plaintiff-judgment. Appeal by defendant.

<p>Fire-Policy — Conditions—Conduct of Assured.</p> <p>1. Where the holder of a policy of insurance against fire complies substantially with all the requirements of the contract between himself and the insurers, immaterial variations will not vitiate it.</p> <p>,2. Where a fire-policy forbids the keeping by the assured of benzine, camphine “ or any explosive, ” it isa question of fact for the jury whether or not certain alcohol kept in the store of the policy holder was an explosive under the particular circumstances of the case. At aBy rate, it can not be so considered in the absence of a finding to that effect.</p> <p>3. If such a policy authorize the keeping of kerosene, of a certain quality, it will rest upon the insurers in case of a loss to show ; (1) that the kerosene was not of that quality, and (2) that the fire originated or was influenced by the kerosene kept.</p> <p>4. An instruction by a policy holder to his agents not to interfere in case Of fire unless the entire stock could be saved, in order that no dispute might occur with the insurers as to the amount of a loss, will not stand in the way of a recovery where it affirmatively appears that no efforts of the assured or his agents could have averted the loss.</p>

Civil ActioN, tried at Spring Term, 1878, of Gates Superior Court, before Fúrches, J. ' This was an action for ’ the recovery of land, and the-plaintiffs’ right of recovery' turns upon the question,— whether they are the “ lawful children ” of Alfred E. J ones, the son of Frederick Jones, the testator.

Civil ActioN tried at January Special Term, 1878, of Halifax Superior Court, before Schenek, J. The case is sufficiently stated in the opinion.

Civil Action, tried at January Special Term, 1878, of .Halifax Superior Court, before Schenck, J. . The plaintiff alleged that subsequent to his marriage with defendant, Caroline, she became a free trader in pursuance of Bat.

CONTROVERSEY submitted without action under O. C. P. § 315 at Spring Term, 1878, of Halifax Superior Court, before Seymour, J. On the 5th of February, 1869, Edward Conigland insured his life in the sum of $3000, and held a policy of insurance for. that amount in which it was recited that the insurance was “ for the benefit of his children.” On said 5th of February, said Conigland had four children then living — the intestate of defendant and plaintiffs, who are the wards of…

PETITION for year’s support, commenced in the Probate Court and heard on appeal at Spring Term, 1878, of Nash Superior Court, before Seymour, J. Case Agreed: The plaintiff is the widow of C. L. Cook who died intestate in 1872.

On the 17th of January, 1872, the defendant and his wife executed a mortgage deed to Elam King, to secure a debt the defendant owed King, with power of sale in default of payment at a certain time, and on the 3d of March, 1873, they executed a similar deed to Joel Reed to secure defendant’s debt to him. The deed to King conveyed a tract of land in and near the town of Concord in Carbarrus county, and the deed to Reed conveyed the defendant’s equity of redemption therein.

Civil ActioN tried at the Fall Term, 1877, of Richmond Superior Court, before Seymour, J. This action was originally brought by the wife of the plaintiff against the defendants, for the possession of certain personal property taken by them under an execution against her husband, and she having died the plaintiff administered on her estate and made himself party plaintiff. The plaintiff and his late wife intermarried before 1868.

Controversy submitted without action under C. C. P., § 315, at Spring Term, 1878, of Warren Superior Court, before Seymour, J. The facts appear in the opinion. His Honor held that the deed of trust was valid, and the defendants appealed.

Civil Action to recover land tried at December Special Term, 1877, of Robeson Superior Court, before Cox, J. The facts are these: In 1869, Sarah Grimsley recovered judgment against Giles P. Floyd. On the 18th of January, 1873, Floyd conveyed the locus in quo to the defendant by deed.

'^C. P., § 256, heard on appeal at Chambers in 1878, before Seymour, J. The plaintiff on March the 5th, 1868, commenced his action against the defendant and one Parrott for a debt due on their sealed promissory note, and in March, 1869, at Spring Term of Lenoir Superior Court, recovered judgment by default against both. The defendant filed his petition in bankruptcy on April the 17th, 1868, and on April the 14th, 1869, obtained his discharge.

C. P., § 256, heard on appeal at Spring Term, 1878, of Mecklenburg Superior Court, before Cox, J. The case agreed states: That the plaintiff recovered a judgment against defendant Stinson, in Mecklenburg Superior Court, on the 24th of July, 1871, upon a debt contracted before 1860,.which judgment was duly, docketed.

<p>Civil'Action commenced in Union and rémoved to and tried at Eall Term, 1877, of CabarRüs Superior Court, before Kerr, J.</p> <p>This action was originally brought by Til man Green to recover a tract of land, and after his death, the present plaintiffs, devisees under his will, were made parties and continue to prosecute the action. See same case, 69 N. C., 294. The facts found upon the former trial, before Buxton, J., were substantially as follows : — -The defendant originally owned the land in dispute which was sold at an execution sale and bid off by one Henry Long, at $1000, under an arrangement with the defendant that he was to be allowed to redeem., and Long took the sheriff’s deed with this understanding. The defendant set up this equity as a defence to the action, and upon a disagreement as to the amount to be paid by defendant to entitle him to a conveyance of the land, the- case was referred and an account of the dealings between Long and defendant stated, in which the referee reported a balance of $2603,95 due Long The-defendant filed no exceptions to this report and it was confirmed.</p> <p>Subsequent to said purchase, Henry Long went into bankruptcy and returned said land in his schedule with the statement that it'was subject to redemption by defendant,but did not include in such schedule any of the claims he field against the defendant; he did however deliver them to his assignee to be used in a settlement between the assignee and the defendant. The land was sold by the assignee-as the property of Long with notice to the purchaser on the day of sale, that he should have the benefit of said claims against the defendant, they not being sold by the assignee. Tilman Green bought the land at said assignee’s sale, for-$600 and the assignee made him a deed in fee for the same. The defendant remained in possession of the premises.</p> <p>The plaintiffs insisted that they were entitled to a decree against the defendant for said sum of $2603.95 and interest, and that the land be sold and the proceeds applied to its payment, and execution issued for the balance, if the defendant shall fail to pay the same in a certain time, in which event the defendant is to retain possession of the land and the plaintiffs to execute a deed to him.</p> <p>The defendant insisted that he had already over-paid the incumbrance upon the land and was entitled to a decree for title without further payment. But the Court adjudged that the plaintiffs could only claim the amount of the purchase money, $600, as being a charge upon the land in their favor, and ordered its sale to satisfy the same.</p> <p>Upon a second trial in the Court below, before His Honor,, the following issue ' was submitted to the jury, — “ Did the assignee in bankruptcy of Long sell and assign title to Tilman Green to the debts owing by the defendant to Long,, at the time when he sold the land mentioned in the pleadings ” ? Answer — “ He did.” There was an appeal. by both parties from the ruling of His Honor upon the evidence touching this issue, but as he was affirmed as to that part of the case in this Court and the decision rests upon another point, it is deemed unnecessary to set it out.</p>

Civil ActioN, tried at January Special Term, 1878, of RowaN Superior Court, before Kerr, J. The facts are sufficiently stated in the opinion. There was a verdict and judgment for the plaintiff, and the defendant appealed.

PROCEEDING, under the landlord and tenant act, commenced before a Justice of the Peace, and heard on appeal at Spring Term, 1878, of New Hanover Superior Court, before Ewre, J. In 1863, the plaintiff purchased from one Bettencourt, the land now sought to be recovered, which is a lot in the city of Wilmington.

<p>Landlord and Tenant-Sub-letting — Jurisdiction..</p> <p>I. If there are no covenants in a lease against sub-letting, the lessee may underlease, and if the under-tenant commits no breach of the covenants between the lessor and the lessee which would work a. forfeiture of the lease and authorize an entry and dispossession of him by the lessor, an entry upon the land demised to the under-tenant and a dispossession of him by the lessor is a trespass.</p> <p>'2. Where a tenant for years, after sub-letting to a third party, and before the underlease has expired, surrenders to the landlord, the latter is guilty of a trespass in entering upon the sub-lessee.</p> <p>3. In cases of sub-letting such as the above, there is no privity of estate or contract between the lessor and the under-tenant; and therefore, no action in substance ex contractu can be maintained for a wrongful entry by the landlord.</p> <p>4. Prior to the act of 1876-77, ch. 251, a Justice of the Peace had no-jurisdiction in cases of tort.</p>

Civil Action tried at Spring Term, 1878, of Alamance. Superior Court, before McKoy, J. Tbe principal facts appear in tbe opinion. Tbe parties; agreed in writing to refer all questions involved in tbe cause to arbitrators whose award should be entered as tbe judgment of the Court, and in accordance therewith, Cox, J. made tbe order of reference.

Civil ActioN tried at Fall Term, 1877, of Robeson Supe-' rior Court, before Seymour, J. This action is brought on a note not under seal, given by Reuben King, the testator of defendant, to W: R. Bryan, for $803.04, on the 2nd of January, 1856, payable one day after date, and as a second canse of action, upon a bond made by King to Bryan on the 14th of February, 1857, for $1,000, payable one day after date. The defendant answered, (1) Both the note and bond have been paid.

PETITION to remove a Guardian commenced in the Probate -Court, and heard, on appeal at Spring Term, 1878, of Tyr-rell Superior Court, before Furches, J. The petition of the plaintiff, a minor by her next friend, -shows that her father died in 1858, leaving a last will and testament in which the defendants were appointed her testamentary guardians, and as such took charge of her estate.

Civil ActioN brought upon a Guardian .Bond and heard on exceptions to the report of a referee at Fall Term, 1877, of Halifax Superior Court, before McKoy, J. This action was brought on the 9th of October, 1871, against the defendant, guardian of the femes plaintiff, and the sureties upon his bond ; it was alleged among other things that in consequence of the failure of the guardian to account, the plaintiffs recovered a judgment for $20,690.44 against him at Fall Term, 1871,…

<p>Civil ActioN, tried at January Special Term, 1878, of Halifax Superior Court, before Schench, J.</p> <p>The plaintiff alleged that on the 6th of November, 1871, the defendant’s intestate (Edward Conigland) and H. J. Hervey executed to John T. Gregory, receiver, &c., two notes for $330 each, and payable, on the 6th of November, 1872 and ’73 respectively; that before this action was brought they were by order of the Court assigned to one J. J. Daniel, who for value assigned them to the plaintiff, and that no part thereof has been paid ; wherefore the plaintiff demands judgment, &c.</p> <p>The defendants, answering, admit the execution of the notes, and for defence say ; that in 1871, R. C. Badger and wife and others commenced an action in said Court against W. A. Daniel (the former guardian of the feme plaintiff) and the executors of Andrew Joyner; and one of the femes plaintiff in the action died, leaving an only child, whose guardian was made a party to the suit; that said Joyner was a surety upon said Daniel’s guardian bond, and died leaving a large personal and real estate which he disposed of by will; and at different times thereafter, all the devis-ees and legatees of said Joyner, and those claiming under them, were made parties to said action. Daniel and his sureties, except Joyner, were insolvent, and the action was brought to subject the estate of said Joyner to the payment of the indebtedness of said guardian to his said wards.</p> <p>The defendants further alleged that Andrew Joyner devised to Mary C. Daniel a certain lot in the town of Halifax, and upon her death, the lot was sold by an order of Court on the 15th of March, 1863, to one McMahon, who failing to pay the purchase money, it was resold on the 6th of November, 1871, and bought by Edward Conigland the intestate of defendant, at $700, for which, except a small cash payment, he executed two notes with defendant Her-vey as surety for $315 each, and the sale was confirmed. The notes were delivered to said Gregory, who had been appointed receiver of the estate of J. J. and W. A. Daniel, Jr., the children and representatives of the estate of said Mary C. Daniel, and who were also made parties to said suit; and upon the death of said "W. A., Jr., the said J. J. Daniel qualified as his administrator, and as such and in his own right, applied on the 11th of August, 1876, to the Court for an order on said receiver to turn over the said notes to him, and Watts, Ji, granted the order.</p> <p>The defendants alleged that during the summer of 1876, the said J. J. Daniel came to the store of the plaintiff', Winfield, and after referring to said notes, asked for advances in money and goods, and promised that the notes should be assigned to plaintiff as collateral security for the same, and on the faith of such representation the plaintiff made advances to said Daniel to a considerable amount; and the defendants are advised that at this time the plaintiff had implied or legal notice that a suit was pending in reference to these notes which were fully described in the complaint filed in the action against said former guardian and the ■sureties upon his bond and the devisees of said Joyner; that after said arrangement with the plaintiff for the advances, Daniel without plaintiff’s knowledge deposited said notes with Battle, Bunn & Co., of Norfolk, as collateral security for a $400 debt he owed them ; and to secure his debt from Daniel, the plaintiff was forced to assume Daniel’s debt to Battle, Bunn & Co., which he did by giving his own note, and the said notes were thereupon assigned to plaintiff as his property ; that at the time of assuming said debt, the plaintiff had actual notice of the suit as aforesaid. See Badger v. Daniel, 77 N. C., 251, and also preceding case.</p> <p>The defendants also alleged that upon coming in of a report of a .referee to whom said suit had been referred, th^ Court at Fall Term, 1877, adjudged among other things that the proceeds of sale of land devised to said Mary C. Daniel, when paid over to said J. J. Daniel, was real estate, and no part thereof went into his hands as administrator of ■said W. A. Daniel, Jr., and that certain rents for said lot ■which were paid to him, were assets liable to the plaintiff’s ■daim; and that the plaintiffs therein did recover of the ■defendants therein a large amount.</p> <p>The defendants in this action therefore insist that a title to said land can not be made, and they are not liable on said notes, nor is the plaintiff here, the person entitled to receive the money on the notes, but that the other devisees of Joyner have an interest in them, against said J. J. Daniel, and that the plaintiff had full notice of the same.</p> <p>The cáse being submitted on the complaint, answer and the certificate of the opinion in the case of Badger v. Daniel, supra, the Court gave judgment for the plaintiff, and the defendants appealed.</p>

Civil ActioN, tried at Spring Term, 1878, of Onslow Superior Court, before Eure, J. This action was brought by the plaintiff soon after he arrived at full age against the defendant as administrator with the will annexed of John Humphrey, his former guardian, and the defendants Harvey Cox and Eranklin Thompson, sureties upon the bond of said guardian. He demanded payment of his distributive share of his father’s estate, which came into the hands of his said guardian.

<p>Civil Action tried at Spring Term, 1875, of Cherokee? Superior Court, before, Cannon, J.</p> <p>The Court found the following facts: — Abram Sudderth, the defendants’ intestate and the guardian of the minor lieiis of Abram Harshaw, received, as such guardian, of the executor of said Harshaw $7705.50 in notes and bonds in June, 1859 ; and a number of slaves and a large amount of real estate and other property belonging to his wards went into his possession. After the death of said Abram Sud-derth in 1868, the plaintiff was appointed guardian and brought this action against his estate for the sum received as aforesaid, and for an account and settlement. The former guardian kept the funds o.f his wards with his own, but had the packages marked so that one could be distinguished-from the-other.- From the year'1862 until the close of the war, prudent business men sought an opportunity to, and did, when they could, pay their debts in confederate money, it being the principal currency in use. The state of the country was such, during that period, that a refusal to accept confederate money in payment of debts would have subjected a creditor to personal danger, and the defendants’ intestate received paymentof notes due him as guardian aforesaid, under protest.</p> <p>There was an account stated and returned to a former term of the Court, and among other exceptions to the report of the referee, was the following of the defendants : No. 1 — Defendants except, for that they are not allowed a credit of $3400, the amount invested for plaintiff’s wards in Confederate bonds, in April, 1863; ” which upon the hearing at said term,in 1873, before Cloud, J., was overruled, and from the ruling upon this and other exceptions (not necessary to be stated as they are not involved in the decision now made) both parties appealed to this Court, and the case was remanded to have the facts found.</p> <p>The statement of facts by His Honor which is substantially set out above was certified to this Court, and the case was argued by Messrs. Battle § Mordecai, for the plaintiff, and Messrs. Merrimon, Fuller Ashe, for the defendants.</p>

<p>Removal of Exeeutor — Jurisdiction.</p> <p>1. The Probate Court has original jurisdiction of a proceeding to remove an executor.</p> <p>2. When, in the course of such a proceeding, it appears inferentially that the executor has become a bankrupt since the death of his testator, and when it is clearly shown that he is the owner of no property above his exemptions, that he has neglected for six years to file in the proper Court an inventory or return of any sort, and has failed to convert the personal property into money for the payment of debts, it is the duty of the Probate Court, upon the application of judgment creditors, to require such executor to give bond for the faithful discharge of his duties, and, in default of such bond, to remove him from his office.</p>

Civil ActioN on an Administration Bond, tried at Eall Term, 1877, of MooRe Superior Court, before Seymour, J. The parties waived a jury trial and the Court found the facts: — The defendant, Brower, administered upon the estate of Upshur Furr who died intestate in 1858, and executed a bond with the other defendants as sureties. The' plaintiffs are the next of kin and distributees of the intestate whose estate was worth $4500 according to the inventory of the defendant.

Special Proceeding- for an Account and Settlement commenced in the Probate Court, and heard on appeal at Spring Term, 1877, of Person Superior Court, before' Cox, J. The main facts appear in the opinion.

Civil ActioN, tried at Spring Term, 1878, of BladeN Superior Court, before Eure, J. In 1866 Isaac Wright died and in or about the same year H. A. Monroe became his administrator, and gave bond with the plaintiffs as his sureties. In the fall of 1874 Monroe died and the defendant became his administrator.

Special Proceeding beard on appeal at Fall Terna, 1877, of TRSON Superior Court, before Buxton, J. . . The facts necessary to an understanding of the points-decided are embodied in the opinion of this Court,.

Civil ActioN tried at Spring Term, 1878, of Mecklen-burg Superior Court, before Cox, J. This was an action upon an administration bond, in which a breach of the bond was alleged by reason of a failure on the part of defendant administrator to exhibit his final account in the Probate Court of the administration of his intestate’s estate, although more than two years had elapsed since his qualification as such; and of his failure to pay over to plaintiffs the portion of said…

Civil Action commenced in Gaston and removed to and heard on exceptions to the report of a referee at Fall Term, 1877, of Catawba Superior Court, before Cloud, J. The plaintiff brought this action upon a note due his intestate from the defendant’s intestate, and the case was referred by consent to obtain an account of the estate, and it was found that the defendant filed a petition in the County Court of G-aston in 1866 to sell the lands of his intestate to pay debts, and…

Special PROCEEDING commenced in the Probate Court and tried on appeal at Eall Term, 1877, of Harnett Superior Court, before Seymour, J. The plaintiff on behalf of himself and other creditors brought this action against the defendants, — Catherine Williams administratix of B. C. Williams, Davis Abernathy, and the Cape Eear Iron and Steel Company.

CONSTRUCTION of a Will heard at Spring Term, 1878, of Burke Superior Court, before Cloud, J. The principal question decided by this Court is whether the legacies provided for in the will are a charge upon the lands embraced in the residuary clause, and the facts material'to the same are embodied in the opinion. See same case 77 N. C. 433.

Civil ActioN tried at Spring Term, 1878, of CiiowaN Superior Court, before Henry, J. Richard Paxton died in 1865, leaving a last will and testament appointing his wife executrix.

Controversy submitted without action under C. C. P., § 315 for the Construction of a Will, heard at Spring Term,, 1878, of Chatham Superior Court, before Kerr, J. The facts are as follows : — Arthur Whitehead died in the year-1876, having on the 30th day of June preceding made a will and therein appointed the plaintiffs William B. Carter and John Whitehead his executors, who shortly thereafter proved the will and qualified as executors.

Civil ActioN, heard upon exceptions to a referee’s report,, at Spring Term, 1878, of Halifax Superior Court, before JSeymour, J. The plaintifis by their guardian, W. II. McRary, brought this action to recover $763.96, the amount of a bond, which was made by W. R. Smith, the testator of defendants, to one John R. Herring, and transferred by him to said guardian ; and demanded payment of the same of the executors of W. R. Smith, and of Herring, the endorser.

<p>Special PROCEEDING commenced in the Probate Court'and beard on appeal at Spring Term, 1878, of Tyrrell Superior Court, before If arches, «71</p> <p>The main facts appear in the opinion. The plaintiffs, aslced for an account and settlement of the estate of the defendants’ testator, and an order therefor was made by the Probale Judge, from which the defendants appealed; and upon its appearing that the defendants had instituted a proceeding in the proper Court against the feme plaintiff and the other heirs of the defendants’ testator for a settlement of his estate, and a question of fact being raised as to whether the feme plaintiff was of full age when said proceeding was commenced and a final decree therein rendered, — in March, 1871, — JEure, «71, directed the issue to be submitted to a jury in term time; and at Pali Term, 1877, of said Court, before Henry, «71, it was found that the feme plaintiff was born on the 19th of September, 1849, and was of full age at the commencement of said proceeding against her for a settlement as aforesaid. The summons in the present case was issued on the 21st of September, 1876, and the defendants insist that the statute of limitations is a bar to the relief .sought, but His Honor being of a different opinion, adjudged that the defendants be required to account, &c., fro.m .which .ruling the defendants appealed.</p>

Civil Action- tried at Spring Term, 1877, of Duplin: Superior Court, before Seymour, J. The plaintiff as trustee of the “Dickson fund” brought this action against the defendant as surety upon a note of John J. Whitehead, principal, made on the 1st of January., 1858, for a $1,000.

<p>Civil Action to recover Possession of Land tried at Spring Term, 1877, of Pitt Superior Court, before Eure, J.</p> <p>Previous to the year 1826, Howell Hearne owned a tract of land in Pitt county, and in that year conveyed it to John A. Atkinson in trust to secure debts due to B. A. Atkinson, but remained in possession thereof; and in 1838, he conveyed it in fee to said B. A. Atkinson, but continued to remain in possession ; and in the same year Atkinson conveyed to Charles Johnson, the father of plaintiff, who married the daughter of Hearne, and he and Hearne lived together on said land until August 15th, 1835, when Johnson died leaving him, surviving, a widow — Hearne’s daughter — who two days after her husband’s death gave birth to the present plaintiff his only heir at law. About a month thereafter Hearne died leaving him, surviving Violetta Johnson — mother of plaintiff — Rufus Hearne and Alumina, then the wife of H. G. Parker and the mother of the defendants. The additional facts appear in the opinion. His Honor held that the plaintiff’s right of action was barred by the statute of limitations and upon this point the case turns in this Court. Judgment. Appeal by plaintiff.</p>

Special Pkooeeding commenced on the 7th of September, 1874, in the Probate Court and transferred to and heard at January Special Term, 1878, of Row AN Superior Court, before Kerr, J. The plaintiffs filed a petition for partition of real estate, alleging that they and the defendants were tenants in common of the same. The defendants denied the tenancy in common and pleaded adverse possession for twenty years, sole seizin, and statute of limitations.

<p>Civil ActioN, tried at Spring Term, 1878, of Perquimans, ‘Superior Court, before Furches, J.</p> <p>This action was brought on the 2d of July, 1877, to re•cover possession of a tract of land, and the facts stated in •the case agreed are as follows</p> <p>Previous to 1868, T. F. Banks was seized in fee and in actual possession of a tract of land in Perquimans county ■containing 960 acres. On the 10th of January, 1868, David Parker became the owner of the same by purchase at execution sale and took a deed from the sheriff. On the 16th •of December, 1868, Parker at the request of Banks sold the land to C. C. Pool, .and took a deed of trust to secure the payment of the notes for the purchase money, — one for $600 and three for $1,000 each due severally on the first, day of January, 1870,-’71,-’72-’73, with power of sale in default of payment of either at maturity. Pool paid the first •note in June, 1870, and the second, in December, 1871, and made no other payment, but conveyed to Banks 220 acres of the land by metes and bounds, of which conveyance Parker had notice. Banks remained in possession under Parker after the sheriff's deed and the trust deed of Pool were executed, and accepted said deed for 220 acres from Pool, the mortgagor, and lived thereon until his death in 1873.</p> <p>In June, 1872, Pool made a second deed of trust to Parker by which he conveyed the larger part of said land (740 acres) to secure other debts; and also other real and personal property, with power of sale in default of payment of the debts secured.</p> <p>On the 10th of February, 1875, Parker sold the whole tract (960 acres) after advertising as provided in the deeds, and Joseph Parker, one of his sons, bid off the land for the-plaintiffs, who are also his 130ns. The sale was made by the attorney of Parker, and no money was paid to the attorney on the day of sale, but Parker directed him to prepare a deed for him to execute to the plaintiffs for the land; Parker died soon thereafter without having executed the deed, and upon proceedings instituted to which the defendant and Pool were parties, one White was appointed trustee under said deeds, and by a judgment of the Court therein, said trustee executed a deed to the plaintiffs, but no money was paid to the trustee. Neither the defendant nor Pool had actual notice of said sale. All of the land conveyed by the second deed has not been sold, and it is insufficient to pay the debts secured.</p> <p>The plaintiffs are the devisees and legatees of said Parker, and brought this action to recover the said 220 acres, and the defendant is the widow of said Banks, and has been in possession of the same since her husband’s death. His Honor upon the ease agreed gave judgment for the defendant and the plaintiffs appealed. The case was argued in this Court by Messrs. Gilliam £ Gatling for plaintiffs, and Mr. J. W. Albertson, for defendant.</p>

Civil ActioN, to recover Land, tried at Spring Term, 1878, of Halifax Superior Court, before Seymour, J. The referee to whom the case was referred reported as follows: It is admitted that unless the defendant can show seven years adverse possession under known and visible boundaries and under colorable title, the plaintiff is entitled to recover the possession of the land in dispute.

Civil Action tried at Spring Term, .1878, of NORTHAMPTON Superior Court, before Seymour, J. This action was brought against the defendants as sureties upon the official bonds of ffbhn Randolph who was appointed clerk and master in equity of Northampton ■county in 1850, and re-appointed in 1854. He executed two bonds and the defendants were sureties upon each ; and he died before action was brought.

Civil ActioN, tried at Spring Term, 1878, of Halifax Superior Court, before Seymour, J. R. P. Spiers was indebted in a large sum to H. J. Hervej and to secure the same, on the 1st day of January, 1875, conveyed to him by deed of mortgage a valuable tract of land. The debt consisted of two equal installments of .$2995 each payable respectively with interest at one and two years from that date.

Bill in Equity beard at December Special Term, 1877, of Beautokt Superior Court, before Schenok, J. This was a suit instituted in 1867, in the late Court of Equity and subsequently referred to E. S. Hoyt who found, that the plaintiffs and one Morris were engaged in the sale of drugs and medicines. In March, 1866, they sold their entire stock to Henry 0. Morris, A. J. Mock and S. H. Wiley for $6,000.

Civil Action tried at Eall Term, 1877, of Caswell Superior Court, before Buxton, J. The plaintiff brought this action to recover the purchase money for land alleged tobe due him by the defendants, Elisha Paschal, the intestate of defendant, and Elisha Sar-tain.

Motion in the Cause by the plaintiffs heard at Chambers in Winston on the 21st of May, 1878, before Cloud, J. The action in which this motion was made was originally brought in Rowan to subject certain real estate sold by virtue of a decree in equity to the payment of the purchase money. The plaintiffs moved for judgment in accordance with the verdict of the jury theretofore rendered.

Motion, to set aside a Judgment, heard at Spring Term, 1878, of Bladen Superior Court, before Eure, J. The case states: The plaintiff had served a notice on the defendant to make him a party to a certain judgment for $600 obtained at Spring Term, 1874, in favor of plaintiff’s-intestate. The defendant answered the notice alleging that the judgment was irregular and asked that it be set aside.

Motion by defendant to vacate a judgment under C. C.P. § 133, heard at Spring Term, 1878, of Cumberland Superior Court, before Moore, J. The motion was allowed and the plaintiff appealed.

Motion to set aside a judgment heard at Chambers, before Seymour, J. The facts appear in the opinion. His Honor refused the motion and the defendant appealed.

<p>Motion to dismiss the action heard at Spring Term, 1878, of Northampon Superior Court, before Seymour, J.</p> <p>The plaintiff as administrator with the will annexed of Edmund Jacobs, deceased, brought this action for-a money demand, and the defendants moved to dismiss upon the ground that the summons which issued June 18th, 1877, returnable to Fall .Term of said Court, was not served, and, no alias was issued. His Honor found as a fact-from the evidence that service had been made by publication. The defendants also moved to dissolve an attachment which had theretofore issued upon an affidavit made on the 18th of. June, 1877, in which the plaintiff stated that a summons had been issued and returned not served — defendant not to be found, &c. — ; that defendant was a non-resident but had property in this State, and was indebted to plaintiff’s testator in a certain ampunt for which a cause of action exists, &o. His Honor refused the motion and the defendants appealed.</p>

<p>Supplemental Proceedings — Private Corporation — Parties.</p> <p>1. Proceedings supplemental to execution lie against a private corporation created by a special act of the legislature and organized for purposes of the private gain of its share-holders.</p> <p>2. A creditor of such corporation, when the same is insolvent, is not compelled to pursue the remedy provided in Bat. Rev. ch. 26, § 22. (Whether the provisions of that section are mandatory in regard to corporations created under the general law — Quere?)</p> <p>3. Creditors not parties to a supplemental proceeding' are not entitled to share in any of the benefits arising therefrom.</p>

Civil Action tried at January Special Term, 1878, of Halifax Superior Court, before Schenek. J. His Honor overruled the objection to the testimony of the witness upon the facts set out in the opinion of this Court. Verdict and judgment for defendants and appeal by plaintiffs.

Civil ActioN tried at July Special Term, 1878, of Ca-barrus Superior Court, before Cox, J. The plaintiff in his complaint claims a right to the possession óf a tract of land known as the Phoenix gold mine, and alleges that the defendant his tenant refuses to surrender the premises.

Civil ActioN tried at Spring Term, 1878, of HertpoRD Superior Court, before Henry, J. The plaintiff alleged that on the 16th of January, 1874, the defendant executed his promissory note under seal payable to Samuel Winborn and George Cowper executors of Abram Reddick, and upon the same day the defendant and his wife made a mortgage conveying certain lands to said executors to secure the payment of the note on or before the 1st day of February, 1876; that on the 16th of…

Civil ActioN on an official bond tried at Fall Term, 1877,. of Pender Superior Court, before Moore, J. The facts applicable to the point decided by this Court appear in the opinion. His Honor sustained the demurrer to the complaint and the plaintiff appealed.

The plaintiff filed his complaint at the appearance term with a verification in the following words : J. W. Alspaugh being duly sworn, says, that the facts set forth in the foregoing complaint of his own knowledge are true, except as to those matters stated upon information and belief, and as to those matters, he believes it to be true. (Signed) J. W. Alspaugh. Sworn to and subscribed before me, this 15th day of May, 1878.

Civil ActioN tried on appeal from a Justice’s Court, at January Special Term, 1878, of Halifax Superior Court, before SeJienck, J. Tbe plaintiff in bis complaint before the Justice of the Peace claimed that the defendant was indebted to him in the sum of $105 for lumber, and the defendant denied the debt and pleaded a counter claim due by note from the plaintiff to him for $200.

Civil Action tried at Spring Term, 1878, of Chowan Superior Court, before Kurches, J. The plaintiff complains:— 1. That the defendants are indebted to him in the sum of $488.70 at eight per cent interest per annum from the 1st day of December, 1875. 2. That no part of said debt has been paid. 3. Therefore the plaintiff demands judgment against the defendants (for said sum) and costs.

Civil Action tried at January Special Term, 1878, of Rowan Superior Court, before Kerr, J. The plaintiff claimed that he was entitled to a right of way and had acquired an easement over the land of the defendant, and that defendant had obstructed the same. The defendant in his answer denied the plaintiff’s allegation, and insisted that if he ever possessed such right, it was lost by operation of the statute of limitations. .

Civil Action tried at Fall Term, 1877, of Jackson Superior Court, before Furches, J. By consent of parties a jury trial was waived and His 'Honor found the following facts: In the year 1872 or ’73, •the plaintiff agreed to sell defendant a tract of land in Jack-rson county for $2300; and in 1872 the defendant contracted to sell to one J. G-.

PROCEEDING instituted under Bat. Rev. ch. 91, for processioning land, heard on appeal at Spring Term, 1878, of 'Tyrrell Superior Court, before Furches, J. The processioner while running one of the lines was forbidden by the defendant to proceed further, and thereupon* he desisted and made report to the Probate Judge. The-Probate Judge appointed five freeholders to appearwith the-processioner on the premises and establish the disputed boundary.

MotioN by defendants heard at January Special Term, 1878, of Halifax Superior Court, before Schenck, J. The material facts appear in the opinion.

<p>Inquiry to assess Damages instituted at Spring Term, 1878, of Craven Superior Court, before Kerr, J.</p> <p>On the 10th of October, 1874, Nancy Folk, the intestate of plaintiff and trustee of S. A: Burnett, issued a summons to the defendant returnable to Fall Term, 1874, of Craven Superior Court, on 4th Monday after 2d Monday in September. On the same day, Oct. 10, the cestui que trust Burnett made the affidavit required by C. C. P. § 177 and obtained a requisition on the sheriff to take four mules from the defendant and deliver them to the plaintiff, (§ 178) and the sheriff" thereupon took the mules and afterwards delivered them to the plaintiff. On said 10th of October, Burnett executed an undertaking in $600 “ that the plaintiff shall prosecute this action, return the said property to the defendant if return shall be adjudged, and pay him such sum as-may for any cause be recorded (evidently meaning recovered) against the plaintiff in this action.” On the return of the summons at Fall Term, 1874, the défendant moved to dismiss the action on the ground that it had been issued within ten days before the next ensuing term of the Court. The Judge refused the motion and the defendant appealed to this Court. At January Term, 1875, — 72 N. C. 527 — this-Court thought itself bound by the act suspending the Code (Acts 1870-71, ch. 40 § 2, brought forward in Bat. Rev. ch. 18 § 2) to dismiss the action.</p> <p>At Spring Term,1878, of Craven Superior Court, “ a jury were impannelled to assess the damages sustained by the defendant by reason of the wrongful taking of the said mules.” The defendant offered evidence of the value of the mules. The plaintiff offered to prove by said Burnett (the cestui que trust of plaintiff) that she was the owner of the mules when the action was begun, and after objection was allowed to testify to that effect. The Judge charged the jury that if they believed that the mules belonged to Burnett the defendant could recover only nominal damages, to which instruction the defendant excepted. The jury returned a verdict for six pence in favor of defendant, and the Judge gave judgment on the undertaking for that sum and costs, and the defendant appealed.</p>

<p>Civil ActioN tried at Spring Term, 1878, of Forsythe. Superior Court, before Buxton, J.</p> <p>The case is sufficiently stated by The Chief Justice in delivering the opinion of this Court. There was judgment-for plaintiff and the defendant appealed.</p>

Civil Action, on an Official Bond, tried at Spring Term, 1878, of WayNE Superior Court before Kerr, J. This action was brought upon the official bond of the defendant, Morisey, as clerk and master of the late Court of Equity, in which it was alleged that he collected certain moneys, the proceeds of sale of real estate, and failed to pay the same to the parties interested, and the defendant sureties insisted that they were not liable for such default.

The plaintiff moved for a mandamus to compel the defendant to levy a uniform tax upon the whole county of Daie to pay a judgment theretofore rendered in favor of the county of Currituck; but the defendant insisted that the tax should be collected only out of that portion of Dare county which was taken from Currituck. His Honor allowed the plaintiff’s motion and the defendant appealed.

<p>Special Proceeding commenced in the Probate Court, and heard on appeal at Spring Term, 1878, of Harnett Superior Court, before Moore, J.</p> <p>This proceeding was instituted to compel the defendant guardian of Lewis Pipkin, a lunatic, to sell his ward’s real estate to pay a debt alleged to be due the plaintiffs, — an account of $224.65 for necessaries furnished said guardian, and for the sum of $416.41, contracted before the lunacy, and alleged to have been paid by plaintiff's at the request of said guardian. In the Probate Court an issue of fact was raised and the case transferred to the Superior Court for a trial by jury. After a reference to the clerk to take an account of the said necessaries and the coming in of his report, the defendant moved to dismiss the proceeding for want of jurisdiction in the Probate Court, and His Honor held that said Court had no jurisdiction in respect to the debt contracted before the lunacy and directed it to be stricken from the complaint; but as to the account, he held that said Court had jurisdiction, and permitted the plaintiffs to proceed as to that. Erom which ruling the plaintiffs appealed.</p>

<p>Civil ActioN, for Divorce tried at Spring Term, 1878, of Edgecombe Superior Court, before Henry, J.</p> <p>The plaintiff alleged that defendant was guilty of adultery, which was denied by the defendant who also alleged -that plaintiff was guilty of cruel and inhuman treatment towards her, and upon that ground she demanded judgment for a divorce from bed and board; and thereupon she .moved for alimony pendente lite. This motion was resisted by plaintiff, for that, the Court had no power under the statute to allow defendant a sum of money for alimony and expenses of the action. His Honor held otherwise, and made an order of reference to the clerk to report a reasonable allowance for the same, from which ruling the plaintiff appealed. {See Miller v. Miller, 75 N. C., 70.)</p>

Civil Action to recover Land tried at Spring Term, 1878, •of Watauga Superior Court, before Cannon, J. This proceeding is instituted under the act of December 18th, 1873, entitled “An act to restore the records of Wa-tauga county” Acts of 1873-’74 ch. 19. The summons was served upon the defendants H. W. Hardin and Robert Munday only, at Spring Term 1877, to which the process was returnable. The plaintiff filed his complaint and therein alleged :— 1.

Civil ActioN tried at Spring Term, 1878, of Watau&a Superior Court, before Cannon, J. This action was instituted in 1875 to recover a tract of land, and upon the question arising as to the regularity and priority of the grants issued to the parties, the jury found for the defendants. There was judgment accordingly, and the plaintiff appealed. The facts set out in the opinion are sufficient to an understanding of the case.

<p>Expression of Opinion by Judge — Nudum Pactum — Praetiee.</p> <p>1. Plaintiffs alleged that defendant owed them a certain amount for goods sold and delivered. Defendant answered denying the debt and setting up a compromise between them and the plaintiffs’ counsel by which defendant was to pay plaintiffs fifty per cent of the alleged indebtedness on condition that it should be “established.” The plaintiffs replied, reaffirming the contract and alleging that the debt was to be “ established” by an affidavit made before a proper officer, with which condition the plaintiffs had complied; Held, that under such pleadings it was not improper to submit to a jury an issue as to the validity of the original debt unaffected by the compromise, especially where the counsel on both sides assented to the framing of the issue.</p> <p>2. Plaintiffs alleged a sale to defendant in person, which defendant denied. On trial plaintiffs’counsel, upon suggesting that the sale was good, whether made to defendant or his agent, was interrupted by the defendant’s attorney who insisted that the plaintiffs’ witness testified to a sale direct to the defendant; whereupon the Judge inquired, — “Does the record show this?” Upon plaintiffs’counsel’s-assent, the Judge demanded, “How then do you agree that they were delivered to an agent?” Counsel replied, “The deposition of S. G. M. will fix that,” upon which His Honor said, “Very well t proceed;” Held, that the transaction was not an intimation of an opinion by the Judge under the act of 1796 forbidding the expression of an opinion by him upon the facts of the case.</p> <p>3. An agreement to take part of a debt in payment of the whole was nudum pactum before the act of 187A-’5, ch. 178, and where one pays a certaira sum upon a contested debt in compromise thereof m case it shall afterwards be established, a finding by the jury that it never existed will entitle the payor to a judgment of restitution for the money advanced by him.</p> <p>4. 'Where counsel on both sides agree that the clerk may take the verdict of a jury, and afterwards such agreement is rescinded with notice to the clerk but not to the presiding Judge, a judgment of the Court, rendered in ignorance of such r.escision, is not irregular.</p>

<p>Civil ActioN tried at Spring Term, 1878, of Cuilpokd Superior Court, before McKoy, J.</p> <p>The facts appear in the opinion. There was judgment for the plaintiffs in the Court below and the defendant appealed.</p>

Special Pkocbeding commenced in the Probate Court and heard on appeal at Spring Term, 1878, of Martin Superior Court, before Henry, J. The plaintiffs filed their petition against the defendants in the Probate Court for partition and sale of lands devised by John Barden, and of which they were tenants in common.

Civil Action removed from Pender and tried at Fall Term, 1876, of Duplin Superior Court before MoKoy, J. The question presented by the record and decided by this Court was one of costs which were incurred as follows: The action was brought to recover damages alleged to have resulted from cutting a ditch upon certain lands, and the title thereto coming in controversy, the Superior Court of Pen-der upon motion of the plaintiff ordered a survey to be made, which motion was…

<p> Fees of Supreme Court Clerk. </p> <p>The clerk of the Supreme Court is not embraced in the provisions of ch. 247, Laws 1874-’75, directing the payment of half fees in certain cases. He is entitled to full fees when the defendant in a criminal action appeals to this Court. '</p>

Civil ActioN tried at June Special Terra, 1877, of New HaNOVEr, Superior Court, before Seymour, J. The plaintiff alleged that in June, 1877, the board of aldermen, ten in number, of the city of Wilmington proceeded in pursuance of law to elect a chief of police for the city, and that upon the sixth ballot he received five votes and the defendant four votes, and that one ballot was blank; that the clerk of the board announced that as but nine votes were cast and the plaintiff…

INDICTMENT for a Misdemeanor under Bat. Rev., eh. 32, §§ 119,120, tried at January Term, 1878, of Wake Criitiinal 'Court, before Strong, J. The defendant was charged with wilful abandonment of his wife Laura without having provided adequate support for her and a child which he had begotten upon her. The indictment was found at November Term, 1877.

Indictment for an Assault and Battery tried at Spring 'Term, 1878, of Madison Superior Court, before Cloud, J. The defendants and two others, Larkin Stanton and .'Solomon Stanton, were indicted jointly^ for an assault and battery on one Peter Howard. Larkin Stanton was not taken, and the other three defendants were put on trial. 'The jury acquitted Solomon Stanton and found the other defendants guilty, and from the judgment thereon they appealed to this Court.

Proceeding in Bastardy beard at Spring Term, 1878, of UNION Superior Court, before Moore, J. On the trial of the issue as to the paternity of the child, the examination of the mother .taken before the Justice was read to the jury, and the Solicitor then rested his case.

<p>INDICTMENT for Larceny tried at May Term, 1878, of Waice Criminal Court, before Strong, J.</p> <p>It was in evidence that John Jones had lost two sheep between the 20th and 28th of August, 1876, and that the defendant at that time owned no sheep. One Dick Yonng, a witness for the State, testified that soon after Jones lost them he saw the sheep shut up in an old out house in possession of defendant, and a short distance from his residence; that when he saw them he was in company with his son, Thomas Young, the witness next introduced, whose testimony corroborated the above, and during whose examination he was ordered by the Court to stop, but failing to do so, was ordered several times by the defendant’s counsel in a loud and disrespectful manner, to stop. The State next proposed to prove by one Lewis Jones, in order to confirm the evidence of the two first witnesses, that Thomas Young, shortly after the loss of the sheep and before the defendant had been accused of the larceny or receiving, &c., had made the same statement to the witness that he had given to the jury. The defendant objected to the evidence, the Court overruled the objection, and the witness said that Young had made the same statement to him.</p> <p>It was also in evidence that John Jones lived one mile from the defendant and owned a large number of sheep, among them the particular ones alleged to have been stolen by the defendant; that for several months before their loss, they were in the habit of grazing in defendant’s field where the out house was situated in which the sheep ivere seen by the witness as aforesaid ; that about the time they were lost, one Crawford bought two sheep of defendant, corresponding in description with them; Crawford at that time was living about eight miles from Raleigh, and "while on his "way to Raleigh about daylight carrying beef to market, he was overtaken by defendant, also going to Raleigh, with the sheep, and after some conversation in regard to the price, he bought them of defendant in the presence of one Nowell, and left them with one Johnston who lived by the roadside to keep for him until his return from Raleigh; that upon Crawford’s proposing to put them in an enclosure surrounded by a fence, the defendant said he. had better put them in a stable or confine them in some other place, that they were mischievous and might get. away; that they were tied and left inside the fence where they could have been seen by passers-by.</p> <p>It was further in evidence that the defendant since the indictment was found had denied to Crawford that he bought the sheep from him, and accused Crawford of stealing them himself; but one Stills, a butcher, testified that about the last of August, 1876, the defendant told him he had two sheep to sell, (described as those in question) and that soon afterwards on asking the defendant where they were, he replied that he had sold them to Crawford.</p> <p>The defendant’s counsel requested the Court to instruct the jury that there was no evidence that defendant had received the sheep knowing them to have been stolen, which was refused, and the defendant excepted. There was a verdict of not guilty of larceny, but guilty of receiving, &c. Judgment. Appeal by the defendant.</p>

<p>Evidence — Practice.</p> <p>1. The rule of law (Bat. Rev. ch. 48 § 16) disqualifying the wife to testify for or against her husband in criminal proceedings, applies only to cases where the husband has a legal interest in the result, and does not render her imcompetent to contradict his testimony for the State upon an indictment against a third party for an assault and battery upon him.</p> <p>.2. The refusal of the Court below to allow counsel to comment on irrelevant matter is not assignable for error, even though the refusal be based upon invalid reasons.</p>

<p>IndictMent for Larceny tried at February Term, 1878, of New Hanover Criminal Court, before Meares, J.</p> <p>That part of the case upon which the decision in this Court is based is as follows: “ While the Solicitor was submitting his argument to the jury, he was interrupted by defendant’s counsel who asserted that he ‘ was mis-stating the testimony’ of a witness, and the defendant’s counsel then stated what he understood to be the testimony of the witness. The Court thereupon remarked that neither of the counsel had stated the testimony correctly, and the defendant's counsel immediately replied in a positive manner ‘that that was a question for the jury.’ The Court then remarked that it was true ‘that it was a question for the jury to decide, but that the Court intended to state the testimony of the witness to the jury in such a way, that in the opinion of the Court, it would be moral perjury in a juror to accept the statement of defendant’s counsel as the correct one.’ ” The defendant excepted. In instructing the jury upon that part of the evidence about which the above colloquy arose, His Honor said, “ that counsel had their feelings enlisted in a cause, and were much interested in the result and were frequently subjected to interruptions while a witness was making his statements on the stand. They sometimes misunderstood a witness, and sometimes their memories were at fault, and that he had to discharge the duty of recapitulating the testimony of witnesses with accuracy, and in order to do so, was compelled to give strict attention to the statement of every witness; that he had no interest in the result of the trial, and while the Court in its opinion had,' as good a memory and could recollect the testimony of witnesses as well as any other person in the court room, yet out of abundant caution, he was in the habit of taking notes and not unfrequently writing out testimony in full, so as to enable him to state it with perfect accuracy; at the same time it was true as the defendant’s counsel had asserted ‘ that the jury were to judge as to what was the testimony of a witness.’ ” He then proceeded to state the testimony of the witness, and submitted the case to the jury who found the defendant guilty. Judgment. Appeal by defendant. (See Davis v. Hill, 75 N. C. 228 — opinion.)</p>

Indiotmbnt for Larceny tried at June Term, 1878, of New Hanover Criminal Court, before Meares, J. The defendant was indicted, for larcenjr alleged to have been committed in March, 1878, and during the progress of the trial the defendant’s counsel offered one Savage as a witness to attack the character of the prosecuting witness, Holloway. It was proved that Holloway had removed from New Hanover to Columbus county where he had resided for the past three years.

INDICTMENT for obtaining Signature by Ealse Pretence tried at Spring Term, 1878, of UnioN Superior Court, before Moore, J. This indictment was drawn under Bat.

<p>INDICTMENT for Fornication and Adultery tried at Spring Term, 1878, of Jones Superior Court, before K&rr, J.</p> <p>The defendants were indicted for lewd and lascivious cohabitation under the statute, Bat. Rev. ch. 32 § 46. It was proved on the trial that they were unmarried persons, had lived for five years some three hundred yards apart, on land belonging to the male defendant, and were frequently "together in the fields; that during this period the woman had given birth to several children, of whom all but one were dead, and that the defendant, Joseph Ballard, had been seen with the living child in his lap caressing it and speaking of it as his child, and on another occasion had been heard to say he believed the others were also his children. ’To none of the evidence was objection made by either defendant.</p> <p>The Court instructed the jury that in order to convict, they must be satisfied beyond a reasonable doubt- that the •defendants, within two years' before the finding of the bill, had been in lewd and lascivious intercourse, and the woman had been in the habit of surrendering her .body to the gratification of the man. The jury found the defendants guilty, »and from the judgment thereon they appealed.</p>

INDictment for Murder tried at January Special Terna, 1878, of Edgecombe Superior Court, before Henry, J. The prisoner was charged with the killing of Rudolph Eaton, which took place near the town of Rocky Mount, in Edgecombe county, and the facts upon which a new trial was granted by this Court are sufficiently stated in its opinion. There was a verdict of guilty of murder. Judgment. Appeal by the prisoner.

INDICTMENT tried at Spring Term, 1875, of Wake Superior Court, before Watts, J. ' At June Term, 1874, of said Court the grand jury made a presentment against the defendant and one M. S. Littlefield for an offence committed against the State, and at October Term following a bill, of indictment was found, in which it was substantially charged that they did combine, conspire, confederate and agree together and with divers other persons to the jurors unknown, by divers false…

<p> Indictment —Perjury. </p> <p>3. An indictment against a defendant for perjury assigned in an oath taken by him in a bastardy proceeding entitled, “ The State on relation of M v. B,” which refers to the same as constituted “ between, the State and the said B ” and as it appeared on the minute docket, sufficiently sets out the substance of the record and Identifies the case.</p> <p>2. In such case, where it appeared that the defendant swore he was • not the father of the child and had not had sexual Intercourse with its mother : whereas the mother swore that he was the father, and other witnesses proved the defendant’s confessions that such intercourse had taken place about five months before the birth of the-child; It was held, that the false evidence was material, and warranted a verdict of guilty.</p>

Indictment for a Nuisance tried at May Term, 1878, of Wake Criminal Court, before Strong, J. The facts material to the point decided are stated in the opinion. Motion in arrest was not made in the Court below. Verdict of guilty. Judgment. Appeal by the defendant.

INDICTMENT for Murder tried at Spring Term, 1878, of JohnstoN Superior Court, before Seymour, J. The prisoner was charged with the killing of Kader J. Ballard, and that part of the case applicable to the points-decided, is:— The first witness for the State was Ella Ballard, a daughter of the deceased, aged at the time of the- trial six and a. half years.

’IndiotmbNT for disturbing a Religious Congregation tried .-.at Spring Term, 1878, of Henderson Superior Court, before ¡Cloud,.,!. There was a verdict of guilty, motion in arrest of judgment, motion overruled, and appeal by defendants.

<p>INDICTMENT for a Misdemeanor tried at Spring Term, 1878,. of Buncombe Superior Court, before Cloud, J.</p> <p>The defendant was indicted in the following words: The jurors &c. present that J. C. Pickens &c. executed to one G~ A. Crooker a chattel mortgage (conveying certain personal' property) to secure the payment of a note &c., and-after the execution of the same, and while it was in force, said Pickens ■did sell and‘dispose of a'part of the property (naming it) embraced in said mortgage, without the consent and against the will of said Crooker, with intent to hinder, delay and •defeat the rights of said Crooker under said mortgage, .against the form of the statute &c. The jury found the defendant guilty, and on motion the Court arrested judgment, .and Gudger, Solicitor for the State, appealed.</p>

INDICTMENT for Larceny tried at Fall Term, 1877, of Lenoir Superior Court, before Eure, J. The defendant was found guilty and judgment pronounced, from which he appealed. And in this Court the defendant’s counsel insisted that the bill of indictment was defective in the particular set forth in the opinion.

IndictmeNT for injury to live stock under Bat. Rev., ck. 32, § 94, tried at February Term, 1878, of New Hanover Criminal Court, before Meares, J. The indictment contains two counts, — tbe first count •charges that defendant unlawfully, wilfully, and maliciously injured a cow belonging to Lee Samuel, and concludes at common law; the second count charges that he did, unlawfully and on purpose, kill, maim and injure live stock running at large in the range, the property of Lee…

In the second section of the act incorporating the Wilmington Steam Fire Engine Company (Private Acts 1869, ’69, ch. 55) it is provided that the members of it “ shall during membership be exempt from all jury and militia duty,” and by a subsequent act (Private Acts 1869 ’70) it is provided “ that the members of all organized fire companies in the city of Wilmington be and they are hereby exempt from serving as jurors on any coroner’s inquest, or in the Special or Superior…

<p>EDWARDS v. KEARZEY.</p>