Volume 81 — North Carolina Reports

Motion to strike out a portion of á Decree, beard at Spring. Term, 1879, of Henderson Superior Court, before Gudger, J. See same case, 80 N. C., 81.

PetitioN to Rehear, filed by defendant at January Term, and heard at June Term, 1879, of The Supreme Court. The facts in this case are reported in 78 N. C., 277, and the ■errors assigned in the petition to rehear are embodied in the opinion delivered by Mr. Justice Ashe.

<p>Petitions to Rehear — Practice Concerning — Decision of Foreign Court, effect of here.</p> <p>1. No case will be reviewed upon petition to rehear, unless it was decided hastily and some material point was overlooked, or some direct authority was not called, to the attention of the court.</p> <p>■2. The decision of the court of another state, in the interpretation and administration of its own laws in respect to property subject thereto and within its jurisdiction, is binding upon the courts of this state.</p>

Petition to Rebear, filed by plaintiff and beard at June Term, 1879, of The Supreme Court. Tbe petition assigns errors apparent in tbe opinion and decree of this court rendered a¿ Jan^ry term, 1878, in the above entitled cause, reported in 78 N. C., 386: 1.

Petition to Rehear filed by defendants at January Term and heard at June Term, 1879, of The Supreme Court. The petitioners ask that the judgment rendered in this case, reported in 78 N. C., 823, be reversed. The errors assigned are stated in the opinion.

<p>Practice — Married Woman — Vacating Irregular Judgment</p> <p>1. The absence of a complaint will not make a judgment irregular where the specialty sued on is filed as a substitute and the summons specifies the amount claimed.</p> <p>2. Where husband and wife are sued together on their joint obligation, it is the duty of the husband to defend for both, and to set up the wife’s disability in a proper case ; and if he fail to do so, the wife cannot have the judgment against her set aside on the ground of her incompetency to contract.</p> <p>3. A judgment against a married woman appearing in the suit by counsel of her husband’s selection, is as binding as one against any other person, unless it be obtained by the fraudulent combination of the husband with the adverse litigant.</p> <p>4. The party aggrieved by an irregular judgment must move to vacate the same before the rights of innocent third persons have intervened.</p>

Special Proceeding tried on appeal at Spring Term, 1877, of Northampton Superior Court before Buxton, J. This proceeding was commenced in the probate court on behalf of the feme plaintiff against the defendant for an account of the administration of the estate of B. G. Clark, deceased. The case is fully stated by Mr. Justice Dillard in delivering the opinion.

<p>Civil ActioN tried at Fall Term, 1878, of Guilford Superior Court, before Kerr, J. ■</p> <p>The facts constituting the basis of the exception taken in. the court below are sufficiently stated by Mr. Justice Dillard in delivering the opinion. Verdict and judgment, for.defendant, appeal by plaintiff.</p>

CONTROVERSY without action under C. C. P., § 315, heard at Spring Term, 1879, of Northampton Superior Court, before Eure, J. The plaintiffs are James W. Grant, administrator of Lewis B. Hill, deceased, and Matilda J. Hill, widow; and the defendants are James W. Newsom, sheriff, and W. H. Hughes, executor of W. M. Crocker, deceased.

Civil Action tried at Spring Term, 1879, of Pamlico Superior Court, before Avery, J. This action was brought before a justice of the peace under the landlord and tenant act, to recover possession of land and judgment rendered for plaintiff.

Civil ActioN tried at Spring Term, 1879, of AlamaNce Superior Court, before Buxton, J. This action was begun in 1872 by Joseph B. McMurray, the intestate of plaintiff, against Thomas Biglow, George Williamson and others, stockholders in defendant bank, and payment demanded of an amount alleged to be due under the personal liability clause of the bank charter. McMur-ray died in 1877, and the plaintiff Long his administrator was made a party.

Civil Action tried at Spring Term, 1878, of Cherokee Superior Court, before Schenck, J. The plaintiff claims that one John M. Martin, being the owner of a certificate of purchase, No. 101, third district of Cherokee lands, and having paid the purchase money to the state, transferred the same to one Standridge, who after-wards assigned the same to him.

Civil Action heard upon. Exceptions to the report of a Referee at Spring Term, 1879, of Cumberland Superior Court, before McKoy, J. The plaintiff was a shareholder in defendant corpora-, tion, and upon the redemption of his stock by the association, he and the feme plaintiff joined in the execution of mortgage deeds to defendant to secure the performance of certain covenants and agreements.

<p>Practice — Supplemental Proceedings — Notice.</p> <p>1. Section 346 of O. C. P., requiring eight days’ notice of motions generally, has no reference to the examination of judgment debtors under supplementary proceedings, but snch cases are governed by section 264 of the Code, which refers the time and place of examination to-the discretion of the court or judge.</p> <p>Obiter: If the notice were insufficient, it seems that the proper course-would be to retain the case until full time for appearance had been given.</p> <p>2. An affidavit is insufficient to warrant the examination of the judgment debtor, if it does not negative property in the defendant liable to execution and the existence of equitable interests which may be subjected by sale in the nature of execution ; but the omission of such negative-averments may be remedied by amendment at the hearing.</p> <p>3. Joint, as well as single debtors, may be examined after the issuance of an execution, and before its return.</p> <p>4 A personal demand on the debtor that he apply his property to the satisfaction of the creditor’s claim, is not necessary to authorize supplemental proceedings. The prosecution of the suit to judgment and-execution is a sufficient demand.</p>

PROCEEDING for Contempt, heard on appeal at Spring Term, 1879, of Macon Superior Court, before Qudger, J. This proceeding was commenced before the clerk, under section 266 of the code, in an action wherein W. A. Cabe was plaintiff, and W. A. Patton defendant. His Honor affirmed the ruling of the clerk that the answer to the rule upon the facts set out in the opinion was insufficient, and that a fine of fifty dollars be imposed, and Daves appealed.

Civil ActioN commenced in Robeson and removed to and heard upon exceptions to a referee’s report at Fall Term, 1878, of Richmond Superior Court, before Buxton, J. The plaintiff brought three actions in a justice’s court against the defendant, and alleged in his complaint that on or about the 12th day of March, 1875, and from time to time thereafter until the 10th of April, 1875, the firm of Patterson & Co. sold and delivered goods and merchandise to defendant in certain…

<p>Practice — Bankruptcy, when pleaded — Supreme Court— Appeal.</p> <p>1. Where a defendant, during the pendency of the action, obtained his discharge in bankruptcy hut failed to plead it and suffered judgment to be taken against him, he cannot thereafter plead the discharge against a motion under 0. C. P., § 256, for leave to re-issue execution.</p> <p>2. If the judgment of the court below is right, it will not be reversed on appeal, because the result below was reached by an erroneous process of .reasoning.</p>

PetitioN for Partition, of Land commenced in the probate court and heard on appeal at Spring Term, 1879, of JoNES Superior Court, before Seymour, J. The facts are stated in the opinion. The report of the commissioners was set aside by the probate court, and this ruling was affirmed by His Honor, and the plaintiff’s appealed.

Civil ActioN tried upon Complaint and Demurrer at Spring Term, 1879, of YANCEY Superior Court, before Graves, J. Richmond Young, by his next friend, J. 0. Griffith, plaintiff, against Zephaniah Young, Jr., Seth Young, B. S. Young and William Hutchins, defendants. The complaint states: 1.

<p>Evidence — Levy—Description in Deed.</p> <p>1. Where, upon the trial of au issue of fraud in the sale of land, the fact that the grantor remained in possession after conveying, is competent evidence; any act or declaration of his, characterizing his possession as fraudulent or otherwise, is also competent.</p> <p>2. A levy, made in 1846 under a justice’s execution, which describes the land as lying “on the waters of Tyson Creek, adjoining the lands of Bryant Burroughs and others, containing two hundred acres, more or less,” is sufficient under Rev. Code, ch. 62, § 16; and a sheriff’s deed which conforms to such description confers, at least, color of title on the purchaser.</p> <p>3. In such case parol evidence is admissible to fit the description to the land.</p> <p>(Smith, O. J.T Dissenting.)</p>

MotioN to set aside a Judgment, beard at Spring Term, 1879, of HendersoN Superior Court, before Gudger, J. The motion was allowed upon the facts set out in the opinion, and the plaintiffs appealed. Cited and commented upon sections 133 and 343 of the code; Faison v. Mcllwaine, 72 N. C., 312; Jones y. Boyd, 80 N. C., 258; Harshaw y. McKesson, 66 N. C., 266; Hervey v. Edmunds, 68 N. C., 243.

<p>Civil Action to recover Land tried at Pall Term, 1878, of Mecklenbueg Superior Court, before Schench, J.</p> <p>The facts appear in the opinion. The question before the jury was, whether thirty years adverse possession was proved so as to take the title out of the state, and the court charged if the jury were satisfied of this, they should find for the plaintiff; and declined to charge that both parties claimed under James Neely, and that therefore the defendant could not deny the plaintiff’s right to recover the one*half as tenant by the courtesy of his wife’s interest. There was a, verdict for defendant, judgment, appeal by plaintiff.</p>

<p>Evidence — Declarations of One in Possession of Land — Statute of Limitations — Parties—Deed—Construction of</p> <p>1. The declarations of one in possession of land are not admissible ini evidence to show changes in the title of those for whom he holds.</p> <p>2. When land, devised to several, is held by the heirs of one devisee adversely for more than twenty years, the other devisees and their heirs not under disability are barred by the statute of limitations.</p> <p>3. In a proceeding for partition of land, those having a reversionary interest in the land are necessary parties, as well as the life tenant.</p> <p>4. B having an interest in a lot of land as tenant in common, conveyed the entire lot by deed with full warranty in 1834 ; afterwards a certain other share in the land descended to B upon the death of another tenant in common in 184b; Held, that the deed not only transferred the estate possessed by B at the date of its execution, but also has the effect, by way of rebutter, against the heirs of B, of passing the share thereafter inherited by him.</p>

•Civil ActtoN tried at Fall Term, 1878, of Brunswick Superior Court, before Buxton, J. This was an action in the nature of a bill to foreclose a mortgage. The plaintiff alleged that defendant executed a note to him for forty-two hundred dollars on the 27th of April, 1868, and secured its payment by a mortgage upon certain lands.

PetitioN to Rebear, filed at January Term and beard at June Term, 1879, of The Supreme Court.

<p>Statute of Presumptions — Acts Suspending — Evidence.</p> <p>1. The acts suspending the statute of presumptions do not apply to a debt contracted in March, 1866.</p> <p>2. It is not proper to consider, on an appeal from a justice’s court, a written statement of the plaintiff’s testimony before the justice which that officer had appended to the transcript sent to the superior court, when the plaintiff is present at the trial in the latter court and able to testify, if competent.</p> <p>•1. Under the act of 1879, ch. 183, it is not admissible for the plaintiff to prove by his own oath or to examine the defendant to prove the nonpayment of a bond in suit executed prior to the first day of August, 1868.</p> <p>4. Where an attorney abuses his privilege in addressing the jury and the judge promptly stops him, a new trial will not be granted.</p> <p>(Smith, C. J., Dissenting.)</p>

Civil ActioN tried at Spring Term, 1879, of CUMBERLAND Superior Court, before McKoy, J. The plaintiff bank alleged that on the 4th of March, 1875, the defendant, Lutterloh, promised by his promissory note to pay his co-defendant, T. J. Jones, the sum of three hundred and fifty-five dollars, sixty days thereafter, with interest at eight per cent from maturity; and that the defendant, Jones, endorsed the same to plaintiff.

<p>Questions of Law and Fact— Usury — Interest.</p> <p>1. What constitutes usury is a question of law, to be determined by the court when the facts are not in dispute.</p> <p>2. In the absence of a special contract as to the rate of interest, only six per cent is collectible on a debt incurred on the 6th of March, 1S75.</p> <p>3. The act of lS76-’77, ch. 91, § 3, which makes it a forfeiture of all interest to exact or charge usurious rates, does not apply to contracts entered into before its passag-e.</p> <p>4. The mere entry on account and subsequent presentation of an usurious claim is not a “charging” within the meaning of that statute.</p>

Motion’ for an Injunction heard at Chambers in Kinston on the 28th of October, 1878, before McKoy, J. The action in which this motion was made is pending in Greene superior court. The facts are stated in the opinion. The motion was granted restraining the plaintiffs from selling the lands mentioned in the pleadings, and from this judgment the plaintiffs appealed.

MotioN by defendant to Retax Costs, beard at June Term, 1879, of The Supbeiib Coubt. The question presented is whether the act of 1879, ch. 41, abolishing the tax fee of attorneys in civil suits, prevents the clerks from taxing such fees in cases heard at January term, 1879, of this court after the date of the ratification of said act. See same case, 80 N. C., 145.

Motion in the Cause heard at June Term, 1879, of The Supreme Court. It was agreed that the clerk of this court should ascertain and report whether William McL.

Civil ActioN tried at Fall Term, 1878, of Rutherford Superior Court, before Schenclc, J. The summons in this action was issued on the 9th of September, 1876.

MotioN to vacate an Order of Attachment heard at Spring Term,, 1879, of Halifax Superior Court, before Eure, J. The affidavit of plaintiffs upon which the order of attachment was issued is substantially as follows : 1. That the plaintiffs are partners doing business in En-field, N. C., and the defendants, in Baltimore. 2.

Motion to Vacate an Attachment, heard at Spring Term., 1879, of Pitt Superior Court, before Seymour, J. Upon affidavit of an agent of the plaintiffs an attachment issued against the defendants, and the sheriff by virtue thereof seized certain property of defendants, who subsequently upon notice moved to dissolve the order of attachment, which motion was denied by the court; and it appearing that issues of fact were raised by the intervening interests of a trustee and of the…

Civil Action tried at Spring Term, 1879, of Mecklen-burg Superior Court, before Kerr, J. This action was brought by the plaintiff as administrator of John M. Springs, deceased, to recover the amount alleged to be due upon a note made by M. L. Wriston, the defendant’s testator, to the plaintiff’s intestate.

Petition for the Removal of an Executor heard on appeal at Chambers in Fayetteville on the 23d of April, 1879, before McKoy, 'J. The petition was filed before the probate judge of Bladen county, who, upon the facts set out in the opinion of this court, ordered the removal of the defendant from his office as executor, and on appeal to the judge of the district the judgment was affirmed, and the defendant appealed to this court.

Civil Action upon a Guardian Bond tried at Fall Term, 1878, of Richmond Superior Court, before Buxton, J. The plaintiffs were the business managers of Floral College, and in their complaint alleged that defendant McKin-non was duly appointed guardian of Hattie S. McKinnon and executed his bond with Hugh L. Patterson as one of the sureties; that said surety died leaving a will, and the defendant, Gilbert Patterson, qualified as the executor therein named; that said guardian…

Civil ActioN tried at Fall Term, 1878, of Northampton Superior Court, before Seymour, J. This action was brought for contribution, and upon the facts set out in the opinion delivered by Mr. Justice Ashe, the court below gave judgment for plaintiffs and the defendant appealed.

Civil ActioN heard upon exceptions to the report of 'ai Referee at Fall Term, 1878, of Franklin Superior Court,, before Kerr, J. This was an action brought by the sureties upon the bond, of O. B. Harrison, guardian of Lee A. Jeffreys, (now Brown),. against Harrison and the sureties upon his bond as admin- • istrator of McKnight, and also against Mrs. Harrison and other purchasers of the land of McKnight, sold by Harrison, as administrator, to make assets.

<p>Motion by plaintiff for the appointment of a Receiver and for an Injunction heard at Chambers in Greensboro on the 20th of January, 1879, before Kerr, J.</p> <p>The facts appear in the opinion. The motions were refused and the plaintiff company appealed.</p>

<p>Contract — Ratification—Statute of Frauds — Form of Action.</p> <p>Plaintiff fenecí defendant for one hundred and twenty-five dollars, the price of a gin which the latter, without any authority from the plaintiff, liad sold to one T. on credit. At the time of the suit, which was brought in a justice's court, and in form ex contractu, the defendant had collected nothing from T. When informed by defendant of the sale, plaintiff said, “ Very well; go ahead and collect the money and remit.” In a subsequent conversation, occurring some hours later, plaintiff said to defendant, ‘‘I don’t know T. in the transaction; I shall look to you,' to which defendant made no reply : Held,</p> <p>(1) That the words, “Go ahead, collect,” &c., amounted to a ratification of the sale to T., which the plaintiff was not at liberty after-wards to recall.</p> <p>(2) That, if any promise to pay could be implied from the silence of the defendant when told that lie was to be held responsible, it was a promise to pay the debt of T. which was nudum pactum after the previous ratification, and void under the statute of frauds for want of a writing'.</p> <p>(8) That, even assuming that there was no ratification of the sale, plaintiff’s remedy was by an action in the nature of trover, since no money had been received and no personal benefit derived by defendant.</p>

Civil ActioN tried at Spring Term, 1879, of Halifax Superior Court, before Eure, J. The facts agreed on are that at May term, 1862, of the court of pleas and quarter sessions of Halifax county, a majority of the justices of the peace being present, R. B. Pierce chairman of the court was appointed commissioner to borrow money upon the credit of the county to buy salt for distribution among the people of the county, and was authorized to execute a bond to secure payment of the…

<p>Civil ActioN tried at Spring Term, 1879, of JoNES Superior Court, before Seymour, J.</p> <p>The plaintiff assignee brought this action to recover the amount alleged to be due upon certain notes under seal, executed by Ivey King the defendant’s testator to one Wine-fred Hill who subsequently assigned them to the plaintiff. The payment was resisted by the executor upon the ground of immoral consideration, in that, the said Winefred was living in adultery with the testator for some years during his life and up to the time of his death; and that the plaintiff took the notes past due with notice that payment was refused for the reason aforesaid. There was no evidence of any agreement or promise for future cohabitation made at the time of the making of the notes, nor of any statement that they were given for past cohabitation, and the court held that the notes being under seal were good without a consideration, and declined to submit the question to the jury upon the evidence in the case, stating that defendant, should have shown the consideration tobe illegal; that past cohabitation did not constitute an illegal consideration-, while an agreement for future cohabitation did ; and conceding the notes were given on account of the adultery, yet there was no evidence it was for future cohabitation. Defendant excepted. Judgment for plaintiff, appeal by defendant.</p>

Civil Action tried at Spring Term, 3879, of Halifax Superior Court, before Eure, J. The facts appear in the opinion. There was a verdict for plaintiff, judgment, appeal by defendant. Upon the effect of the endorsement, cited 1 Danl. Neg. Insts., § 669; Ingalls v. Lee, 9 Barb., 947. Parol testimony varying legal effect of blank endorsement not admissible. 1 Danl., § 717, ei scq; 18 Graft., 205; 6 Graft., 642; Broivn v. Wiley, 20 How.

Civil ActioN commenced before a Justice of the Peace and tried on appeal at Spring Term, 1879, of Wake Superior Court, before Eure, J. This action was brought to recover the price of certain wooden splints sold to the defendant by the plaintiffs’ agent and shipped from Geneva, Ohio, to Raleigh, less a discount of ten per cent, and $18.28 additional discount allowed by the plaintiffs.

.Claim and Delivery tried -at Spring Term, 1878., of •NORTHAMPTON Superior Court, before Seymour, J. This .action was brought to recover the possession of a hog which was admitted to be the plaintiff’s property.

<p>Civil Action tried at Spring; Terna, 1879, of Nash Superior Court, before Seymour, J.</p> <p>In order to secure the paymejxt of a debt to one John A. .Harrison, the defendant executed a deed without the joinder of his wife, conveying a tract of land to him, dated the 20th of January, 1874, which debt was by agreement to be paid in two years from the date of the. deed. The land was acquired by the defendant prior.bo March, 1867, and the debt was contracted subsequent to 1868. The defendant was married in 1847, and bis wife is still living. They now live upon the land, and have infant children. No homestead has ever been assigned, nor does the defendant own any other real estate, nor is the land worth more than one thousand dollars. On the 3rd of May, 1877, Harrison for a valuable consideration transferred his debt against defendant and his interest in the land to the plaintiffs who seek in this action to subject the land to the payment of the debt.</p> <p>The above are the facts, in brief, as found by the referee to whom the case was referred, upon which he concluded, as matter of law, that there is due the plaintiffs the sum of $489.72 and interest; that as against the feme defendant, the deed was ineffectual to deprive her of her homestead right; that the deed conveyed the reversion to take effect in possession after the homestead estate ; and gave judgment that plaintiffs recover the debt, also for a sale of the reversionary interest in the land, unless the money is paid in three months after the confirmation of the referee’s report.</p> <p>The plaintiffs excepted to the report, for that, the referee erred in finding as a conclusion of law that the deed was ineffectual to convey the land discharged of any claim of the wife, and that it only conveyed to Harrison a reversionary interest. The court overruled the exception and confirmed the report, from which the plaintiffs appealed.</p> <p>1. The homestead exemption is intended to be a protection against creditors, and not a disabling statute against the owner.' Mayar v. Nixon, 69 N. C., 108. The homestead provisions in the constitution are found in a chapter of “Exemptions.” “ Noscitur a sociis.” Sedgw. Stat. and Const. Law, 220, note a.</p> <p>2. If Art. -X, § 8 of the constitution, is a disabling statute, impairing or restricting the husband’s right of alienation, it is in derogation of his prior rights and should be strictly construed (Sedgw., 296) so as to apply only to homesteads already assigned and thus impliedly dedicated by the husband to the control and veto power of the wife. Mayho v. Cotten, 69 N. C., at page 294, (opinion); Jenkins v. Bobbitt, 77 N. C., 385.</p> <p>3; Right of alienation an inseparable incident to an absolute estate, and a restriction on this right, even for a limited time, is void for repugnancy to the estate granted. Mandel-baum v. McDowell, 29 Mich., 78 ; 18 Am. Rep., 61; School Com. v. Kesler, 67 N. 0., 443 ; Twitty v. Camp, Phil. Eq., 61. To submit the husband's right of alienation to the control and restraint of the wife, by requiring her assent to his conveyance, would be to defeat a vested right. Sutton v. Askew, 66 N. C., 177; Cooley Const. Lim., 361.</p> <p>4. The husband holds under an executed contract (“ which differs nothing from a grant,” 2 Bl. Com., 443) and his rights are protected by the clause in the federal constitution against impairing" the obligation of contracts. Cooley Const. Lim., 274-5.</p> <p>1. Deed by owner of homestead void unless signed by wife. Const., Art. X, § 8. This is not only for protection of the wife, but in terms a requisite of the deed itself. Nor is Sutton v. Askew in conflict with this; for here, the husband is not insisting upon a vested right of which the legislature had deprived him, but upon a.n exemption from liability which the legislature had conferred upon him at a time when no one was damaged therebA the sale being since the constitution. J</p> <p>2. The homestead right is ’Jested by the constitution, and not by the allotments, which only ascertains whether there is an. excess. Lambert v. Kmnery, 74 N. C., 348; Allen v. Shields, 72 N. C., 504. * '</p> <p>3. Upon the authority of Jenlcins v. Bob}>itt, 77 N. C., 385, it would be admitted that the sale was good as to the reversion, if it were not that under the first position taken the deed itself is informal and void.</p>

<p>Civil Action tried at Spring Term, 1879, of Halifax. Superior Court, before Eure, J.</p> <p>The case states: On the 27th of April, 1858, one Thomas B. Nichols, as principal, and Charles Latham and the defendant executed to the clerk and master in equity for Halifax county, a bond in the sum of three thousand dollars,, conditioned as follows: “ A' tract of land belonging to the-said Nichols for life, remainder to Mary W. Nichols, has been sold by order .of the court of equity, and the money ($1,500) paid over to said Thomas 13. Nichols; now if said Nichols at his death shall pay to said Mary the said sum of .fifteen hundred dollars, this bond is to be void, otherwise to remain in full force.” Thereafter Mary Nichols married ■John H. Hall, who died in August, 1877. Thomas B. Nichols died insolvent on the 1st of March, 1868, -and the :said Charles Latham is also insolvent.</p> <p>On the 17th of July, 1871, during the coverture, the plaintiff (being the owner of said bond) and her husband executed their deed, with privy examination of the wife taken as prescribed by law, as follows: “Know all men by these presents that we, John Ii. Hall and wife Mary W. Hall, have received-of H. B. Short the sum of seven hundred dollars, for and in consideration of which we do hereby agree and bind ourselves that we.will never sue nor prosecute any ■claim or demand of any kind against said Short on the bond in the clerk and master’s office, [describing it] said bond having been given for land belonging to said Mary W. Hall. The nbject of this paper is to release, acquit and discharge said .Short forever from all responsibility on said bond; but it is expressly agreed and'understood that the other signers are not hereby released and discharged. And so far as is necessary to discharge and release said Short, we do hereby assign, bargain, sell and set over to him-the money produced by the sale of said land for which said bond was given; the object of this paper being to assure .said Short against any and all further claims and demands -of every kind. The said sum of seven hundred dollars is this day paid us by said Short as a compromise and in full discharge and settlement of said claim of ours against him, and all claims of every kind that we have against him.”</p> <p>. . Neither the plaintiff nor any one for her has received any ■amount, except the sum of seven hundred dollars as aforesaid, from any of the obligors in the bond, and she seeks by this action upon said bond, to recover of defendant the balance due for the sale of said land. Upon consideration of the above the court held that the plaintiff could not recover, and thereupon the plaintiff excepted to the ruling and assigned as error: 1. That the deed of July 17th, 1871, is nu-dum pactum. 2. That it is void as a deed and can operate only as a receipt for seven hundred dollars. 3. That the privy examination of the feme covert and the registration of the deed can give'it no force and effect that it did not have before. Judgment, appeal by plaintiff.</p> <p>This is .an ascertained debt of $1,500 and interest. An agreement to receive a part thereof in discharge of the whole is nudum pactum and cannot be enforced although styled by the parties a compromise. Mitchell v. Sawyer, 71 N. O., 70-; McKenzie v. Culbreth, 66 N. C., 534; Bryan v. Foy, 69 N. Cf, 45; Warren v. Skinner, 20 Conn., 659; (dumber v. Wayne, 1 Smith’s L. C., 249. And this is so though the debtor is a surety, and the debt is due by bond. Equity never regards a seal, and under the present system of administering rights, seals have lost much of their original force. Bryan v. Foy, supra. The acceptance or agreement to accept a less sum does not bar a demand for a greater when there is no consideration. Hayes v. Davidson, 70 N. C., 573.</p> <p>The paper upon which defendant relies is a covenant not to sue, a release and a conveyance. Bussell v. Adderton, 64 N-. C., 417; Paxton v. Wood, 77 N. C., 11,. The case of Pippen v. Wesson, 74 N. C., 437, has no .application. The principle there laid down is that the separate estate of a married woman is not liable to be charged with her debts except expressly or by necessary implication. A married woman can release, 1 Bish, Mar. Worn,, § 603; Wall v. Nelson, 3 Litt. (Ky.) 395' Kirkman v. Bank, 77 N. 0., 394; Newhart v. Peters7 80 N. C., 166. In Williams v. Green, 68 N. C., 183, it is implied that a feme covert can be compelled to specifically perform her contracts.</p>

Civil ActioN tried at Pall Term, 1878, of Northampton Superior Court, before Seymour, J. Upon the finding of the jury and the facts admitted in the case, the court gave judgment for the plaintiff and the defendants appealed. The assignment of the chose in action was valid and binding on Harris and his wife, unless he was deprived of the power to sell it by virtue of the provisions of the constitution of 1868.

<p>Married Women — Separate Estate — Parties.</p> <p>In a suit by a purchaser at ah execution sale seeking to dispossess the husband of his wife’s land, the wife’s possessory right is such an interest in the controversy as entitles her to bemade a party defendant.</p>

Motion by defendant to set aside a Judgment on the. ground of excusable neglect under C. C. P., § 133, heard at Spring Term, 1879, of Foesyth Superior Court, before Schenck, J. ' The motion was refused upon the facts set out in the opinion, and the defendant, Matthews, appealed. Cited and commented upon the cases cited by the court, ■•and distinguished this case from Griel v. Vernon, 65 N. C., 76, where the neglect was that of the attorney alone.

MotioN to vacate a Judgment under C. C. P., § 133, heard at Greenville on the 27th of March, 1879, before Seymour, /. The judgment which the deféndant moved to set aside was recovered against him at spring, term, 1879, of Wilson superior court. The facts are stated in the opinion. The motion was refused and the defendant appealed.

<p>Estate of Lunatic — Claims against, how collected.</p> <p>Property of a lunatic in the hands of a committee is to be regarded as in custodia legis, and no creditor can reach it for a debt pre-existing the inquisition-of lunacy, except through the order of the superior court; and that order is never made until a sufficiency for the support of the lunatic and that of his family, if minors, is first ascertained and set apart.</p>

Civil ActioN tried at Pall Term, 1878, of Hertford Superior Court, before Eure, J. The complaint states substantially that the plaintiff and defendant were candidates for the office of clerk of the superior court of Hertford at an election held on the first Thursday in August, 1878; that the plaintiff received a majority of the lawful votes cast and was duly elected, but the judges of election at one of the precincts refused to count the votes given for plaintiff, and it was…

Petition by plaintiff to Rehear filed and heard at June Term, 1879, of The Supkeme Coukt.

Civil Action in the nature of Quo Warranto tried at Spring Term, 1879, of Jones Superior Uourt, before Seymour, J. This action was brought to try the title to the office of sheriff of Jones county, and upon the facts set out in the opinion of this court, His Honor held that the first term of office of Nathan McDaniel, deceased, did not expire until December, 1878; that the appointment of the plaintiff was for the unexpired term of McDaniel under his first election and…

Applioation of plaintiff to be recognized a Clerk of the court, heard at Spring Term, 1879, of Craven Superior Court, before Eure, J. It was admitted that defendant was duly elected clerk of the superior eourt of Craven county at an election held on the first Thursday in August, 1878, and was inducted into office on the first Monday in September following, and was acting as clerk aforesaid when the motion of plaintiff was made.

Civil ActipN in nature of Quo Warranto tried at Spring Term, 1879, of CraveN Superior Court, before Eure, J. This action was brought to recover the office of treasurer of Craven county, and a trial by jury being waived, the court found the facts as follows : The plaintiff was elected treasurer on the first Thursday in August, 1878, and on the first Monday in September following, gave the official bond required by law and qualified before the board of county commissioners.

MotioN to issue Execution, heard on appeal at Spring Term, 1879, of Yancey Superior Court, before Graves, J. A notice was issued to defendants on the 4th of February, 1879, to appear before the clerk of the superior court and show cause why an execution ^should not issue upon ajudgment obtained before a justice of the peace on the 1st of September, 1869, and docketed in the superior court on the 10th of February, 1870.

MotioN of a Sheriff for instructions as to the proper application of funds in his hands, heard at Spring Term, 1879,, of Jackson Superior Court, before Gudger, J. On the 14th of September, 1878, the plaintiff obtained a judgment against the defendant, on a debt contracted prior to 1868, before a justice of the peace, which was duly docketed in the superior court on the 13th of January, 1879, and on same day an execution was issued and levied on defendant’s land, and the land…

Civil Action-, tried at Spring Term, 1879, of Geeene Superior Court, before Seymour, J. On the 16th of October, 1871, the plaintiff obtained judgment upon a note against the defendant; Joseph Dixon, and execution issued and was returned nulla bona.

Special Phooeeding heard on appeal, at Spring Term, 1879, of Foesyth Superior Court; before Schenclc, J. The opinion contains the facts. From the judgment below, the defendants Wilson & Shober appealed.

<p>Civil ActioN, tried at Spring Term, 1879, of Halifax Superior Court, before Eure, J.</p> <p>The opinion contains the facts. The plaintiffs recovered judgment in this action before a justice of the peace, and on appeal His Honor held that the plaintiffs had no lien upon the premises but that they had a lien upon the lumber and gave judgment accordingly, from which the defendant appealed.</p>

<p>Civil ActioN tried at Spring Term,, 1879i of Halifax Superior Court, before Eure, J.</p> <p>The-opinion contains- the facte. His Honor gave judgment for the sum claimed by plaintiff as due for services rendered as a farm overseer, but held that he had no lien on the crops, &c.7 of defendant to secure payment of the judgment. From which ruling the plaintiff appealed,</p> <p>Commented upon the ruling in Wray v. Harris, 77 N. G., 77, and maintained that under the constitution and acts of assembly, overseers Were not the objects of’the benefits conferred. An overseer is simply an agent. Smith w, Cameron, 11 Ire., 572,</p>

MotioN in the Cause heard at Spring Term, 1879, of Gran-ville Superior Court, before Buxton, J. The summons in the case was made returnable before the clerk, and upon the facts set out in the opinion of this court, the defendant insisted that the matters complained of were the proper subject of a civil action and not a special proceeding.

MotioN to set aside a Judgment heard at Spring Term, 1879, of HbNdeesoN Superior Court, before Gudger, J. Upon the facts set out in the opinion His Honor refused the motion and the defendant appealed.

PbtitioN for Dower filed before the Clerk of the Superior Court of Hertford, and heard on appeal at Chambers, on the 19th of September, 1878, before Eure J. A. J. Askew and Mary A. his wife intermarried in the year 1843; and 1874, the husband died, residing at the time of his death,on a tract of land of which he was seized, situate in .the county of Bertie, leaving him surviving, his-wife, the plaintiff.

<p>Superior Court — Jurisdiction-—Practice—Parties—Married Women — Infants.</p> <p>1. The superior court in term has jurisdiction: of an action to declare a trust in certain real estate and to have title executed to the plaintiff and also to- impeach a sale of the land under a decree of the probate court had in- a special proceeding then ended.-</p> <p>2. A decree for the sale of land made in a special proceeding is not conclusive upon a feme covert defendant whose- husband is not served with process nor otherwise made a party, or obtained leave from the court to proceed without him,</p> <p>3, A decree in such case is not conclusive upon infant defendants who were -not -served with proeoss, but who were represented by a guardian ad litem, appointed before the petition was filed on nomination of plaintiff, and who filed an answer prepared for him at plaintiff’s instance and without inquiry as to the rights of the infant defendants.</p>

Civil ActioN to recover a Penalty for False Return under Bat. Rev., ch. 106, § 15, tried at Spring Term, 1879, of Wilices Superior Court, before Schench, J. The defendant as sheriff of Wilkes county had in his hands divers executions against J. 0.

<p>■Sheriff — Execution Sale — Purchaser..</p> <p>A sheriff, having executions in his hands in favor of A., B. and C., levied on the lands of the debtor, and advertised the same for sale according to law at a regular term of the court. Afterwards, at the request of the •debtor, and with the concurrence of the attorney of A. and B., he sold the land on .another day, 'Without notice to 0., and after but two days .advertisement. Said attorney became the purchaser, and, on refusal of the sheriff to make him a deed, obtained from the court below a rule absolute for such conveyance, from which the sheriff appealed -, tLeld,</p> <p>!{1) That it was the duty of the sheriff to advertise and sell in such a way as to bring the most money for all the creditors. ■</p> <p>(2) That this duty was not discharged by a sale on two -days notice without the knowledge or concurrence of 0.</p> <p>(3.) That the purchaser, being implicated in 'the sheriff’s dereliction, was not entitled to call for a conveyance.</p>

Civil Action to recover Land tried at Spring Term, 1879, of Jones Superior Court, before Seymour, J. The facts constituting the basis of the decision of this court are set out in its opinion. Judgment for defendants, appeal by plaintiff.

Petition to Rehear, filed by defendants at June Term, 1878, and heard at June Term, 1879, of The Supreme Court. The facts are stated in same case, 77 N. C., 25. The error assigned is that defendant S. G. Sturgis did not acquire title to the land in controversy by becoming the purchaser at the commissioner’s sale at Louisburg in Franklin county on the 7th of November, 1870.

Civil Action to recover Land, tried at Spring Term, 1879, ■of Jones Superior Court, before .Seymour, J. The case states that it was conceded the plaintiff is entitled to recover the land, and the only question was whether ■defendant is entitled to the value of certain permanent improvements made upon the land by him ; to ascertain wdiich ¡he .offered to prove that while in possession of the locus in ■gro.and under the belief .that he had a good title, he had made such…

PROCEEDING, under the Landlord and Tenant Act, tried on appeal at Spring Term, 18-79-, of Rowan Superior Court, before Schenek, J. Upon the facts-set out in the opinion, the court below intimated that the plaintiff could not recover, and he thereupon took a nonsuit and appealed.

<p>Action for Land — Adverse Possession — Burnt Records — Grant, presumption of.</p> <p>1. Where in an action to recover' land the plaintiff showed title out of tile state by a thirty years’ possession, and, without producing any paper title, relied upon section eight, chapter fourteen, of Battle’s Re-visal, concerning “burnt records;” it was held, that this statute did not make it necessary for the plaintiff to show a seven years’ adverse possession in addition to the thirty years to entitle him to recover.</p> <p>2. In such case the lapse of seven years’ adverse possession concurrently with the thirty years necessary to raise the presumption oí a grant, is sufficient.</p>

Civil ActioN to recover Land tried at Spring Term, 1879, of Wilkes Superior Court, before Schenclc, J. The case was tried upon the pleadings, the nature of which is embodied in the opinion. Judgment for the defendants, appeal by plaintiff.

■Civil Action for Damages for Trespass bm Land tried at Fall Term, 1878, of Chatham Superior Court, before Kerr, J. The facts are stated in the opinion. Judgment for plaintiff, appeal by defendant. See .same case, 77 N. C , 216.

The service of summons in this case, was accepted by the defendants, and the complaint alleges substantially that on tlio 27th. of February, 1879, a bill to be entitled an act to revise and consolidate the public school law was introduced in the house of representatives of the general assembly of North Carolina then in session, and on that day passed its first reading; and on the 6th of March, 1879, it passed its second reading by a vote taken by yeas and nays as appears…

<p>PetitioN by defendant to Rehear filed at January Term, and heard at June Term, 1879, of The Supreme Court.</p>

This proceeding was begun by the service of a notice upon ■defendant that the plaintiff would apply to the cleric of the superior court of Gaston count}’' for the appointment of three commissioners to value t.wo acres of land, belonging to the ward of defendant, lying on the west side of Catawba river and joining the right of way of the company, to be condemned for the use of the plaintiff.

Civil Action tried at Spring Term, 1879, of Northamp-.1 r'dr a.-r Cop.rl, boA.ro Lave, J. Tins action was brought to recover damages for sixty-twu bales of cotton, which defendant company as a common, carrier had contracted to carry oyer its road from Bull Hill landing in Northampton county to Norfolk, Virginia, upon the allegation that the damage to the cotton was caused by the negligence of defendant, or its agents or servants, while being transported on its road.

<p>Master and Servant — Negligence of Agent — ^Lidbility of Master.</p> <p>1. Where the relation of fellow-servants or co-laborers subsists, a master is not responsible for an injury to one of his servants occasioned by the negligence of á fellow-servant engaged in the same business or employment.</p> <p>3. To impute the negligence of an agent to the master, he must be something more than a mere foreman over other hands ; he must have the entire management of the business, clothed in that respect with the authority of the master, to whom the laborers are put in subordination and to whom they owe the duty of obedience.</p> <p>3. In an action against a railroad company for damages, where it appeared that the plaintiff was employed as a train hand and was injured while engaged in digging gravel under the direction of one L, who was engineer, superintendent, conductor and master of the gravel and material train of defendant, whose business it was to employ and discharge hands connected with the train and who had entire charge of this branch of the business over a section of defendant’s road ; It was held, that the plaintiff and L were not mere fellow-servants and that plaintiff was entitled to recover of the defendant for an injury sustained on account of the negligence of L.</p>

Civil ActioN fox Damages tried at Spring Term, 1879, of Guilford Superior Court, before Buxton, J. The plaintiff was a brakeman in the employ of the defendant company, and was injured by a fall from a freiglit car, caused by the breaking of the rod of a brake attached to the car, while he was operating it.

Civil ActioN tried at Fall Term, 1878, of Guilford Superior Court, before Kerr, J. This was an action, to recover damages for killing cattle of the plaintiff. The defendant company admitted the value of the cattle, and that they were killed by being run overby an engine on its road. The testimony introduced on the trial, and the charge of the judge to the jury are sufficiently stated in the opinion of this court. Verdict and judgment for plaintiff, appeal by defendant.

Civil Action Removed from New Hanover and tried at Spring Term, 1878, of Brunswick Superior Court, before Eure, J. This action was brought to recover an amount of money alleged to be due the plaintiffs by the Commercial bank of Wilmington on account of deposits made by them with the bank.

INJUNCTION beard at Fall Term, 1878, of Duplin Superior Court, before McKoy, J. The action in which the injunction, was obtained was commenced by the plaintiff against the defendant to test the legality of sections ten and twelve of schedule B, chapter 158, of the acts of' 1876-77.

CONTROVERSY submitted without action under C. C. P., § 315, and heard at Chambers in Jackson, Northampton County, on the 25th of January, 1877, before Watts, J. The plaintiff company claimed exemption from taxation by reason of the provisions of its charter, and applied for an -order restraining the defendant commissioners from collecting the tax assessed under the revenue law of 1875.

Civil ActioN to recover a Penalty tried at Fall Term, 1878, of Beaufort Superior Court, before Eure, J. On the 24th day of December, 1812, the general assembly passed an act incorporating “ the president, directors and company of the Washington'toll bridge,” and authorized the company, when constituted according to the provisions of its charter, “ to build a bridge across Tar river,, above the town of Washington in Beaufort countj’, and near the said town, to commence at…

<p>CONTROVERSY, for the Construction of a Will, submitted without action under C. C. P., § 315, at Spring Term. 1879, of Wake Superior Court, before Eure, J.</p> <p>Upon the clause of the will set out in the opinion, the court below held that the plaintiff was entitled to the bonds mentioned as an endowment of as many scholarships as the interest thereon from year to year may be sufficient to pay for at the then current rates of tuition at the University, and no more, the students who are to receive the benefits thereof to be selected as set forth in said clause; and adjudged that defendant executors pay the costs of the proceeding. From which ruling the defendants appealed.</p> <p>The leading purpose of the testator as gathered from the will being to confer a bounty on the University, all minor considerations coming in the way must yield, and the primary purpose must prevail. Lassiter v. Wood, 63 N. C., 360; Alexander v. Summey, 66 N. C., 577; King v. Lynch, 74 N. C., 364; Macon v. Macon, 75 N. C., 376.</p>

<p>INDICTMENT for an Assault and. Battery tried at Spring-Term, 1879, of HeNdersoN Superior Court, before Gudger, J.</p> <p>There was a verdict of guilty, judgment, appeal by defendant.</p>

<p>PkocebdiNG in Bastardy tried at Spring Term, 1879, of Henderson Superior Court, before Gudger, J.</p> <p>On the 17th of November, 1877, a justice of the peace issued a warrant against Mary Key Kendall, the relator in this case, to compel her to declare the father of a bastard child of which she had been delivered, or otherwise comply with the requirements of the law in such cases. Upon the hearing of the matter, she refused to declare the father, and. thereupon a fine was imposed, and a bond for the maintenance of her children executed by her and the defendant, as surety.</p> <p>Subsequently, to-wit, on the 4th of September, 1878, she made an affidavit before another justice of the peace that she had been delivered of two bastard children, and that the defendant was their father. Upon this affidavit a warrant was issued and the defendant arrested and bound over to answer the charge at the superior court. When the case was called the defendant’s counsel moved to quash the proceeding on the ground that the woman had refused t.o declare the father and had given bond as above set forth. The state in reply alleged that this was brought about by a-.collusion between the justice and the defendant, and .that a fraud had been perpetrated on the woman, and offered to introduce testimony to establish it; that the question should be submitted to the jury, and that there were two children, whereas the warrant first issued against the woman charged her of having been delivered of only one child. The court allowed the motion to quash and ordered the defendant to be discharged, and from this ruling, Ferguson, solicitor for the state, appealed.</p>

At February term, 1879, of said court the defendant was indicted for a trespass upon the premises of Jere M. Hewlett, and upon the trial the jury returned a verdict of “ not guilty.” Hewlett was marked as prosecutor, and the court finding that the prosecution was frivolous and malicious, on motion of defendant’s counsel, adjudged that the prosecutor pay the costs.

Petition for a Certiorari filed and granted at Jone Term, 1879, of The Supreme Court.

INDICTMENT for Larceny, tried at Spring Term, 1879, of Davidson Superior Court, before Schenck, J. The bill of indictment charged the defendant Stephen Holder alias Stephen Phillips, with stealing “ one dog of the value of one dollar,” the property of oneT. T. Spaugh. The defendant’s counsel moved to quash the indictment on the ground that it did not charge an indictable offence. The motion was allowed, and Dobson, solicitor for the state, appealed.

INDICTMENT for False Imprisonment tried at Spring Term, 1879, of Macon Superior Court, before Gudger, J. The bill charged that the defendants, Wiley Lunsford, Leander Bateman and Nelson Rogers did make an assault upon one Robert Garrison, and him the said Garrison, unlawfully and injuriously, against his will, and against the laws of the state and without any legal warrant, authority,, or reasonable or justifiable cause whatsoever, did imprison and detain, &c. The jury…

Indicthent for Obstructing a Highway tried at Spring Term, 1879, of Edgecombe Superior Court, before Eure, J. After a verdict of guilty the defendant’s counsel moved in arrest of judgment because [the indictment concluded “ against the statute in .such case made and provided and against the peace and dignity.” The words “of the state ” were omitted, and the offence was one at common law. His Honor granted the motion and Collins, solicitor for the state, appealed.

INDICTMENT for Retailing Liquor, tried at Spring Term, 1879, of Northampton Superior Court, before Mire, J. The defendant was indicted in the following words: “The jurors for the state upon their oath present, that E. C. Joyner late of the county aforesaid at and in the county aforesaid, on the 20th day of March, 1879, unlawfully did sell to one A. H. Reid one pint of intoxicating liquor contrary to the statute in such case made and provided.” The jury returned a special…

<p>CRIMINAL', ACTION tried at April Term, 1879, of New-hanover,’'Criminal court, before Meares, J.</p> <p>The case states: The prosecutor, Simon Richardson, a constable, obtained a warrant against the defendant for assault and battery which was tried before a justice of the peace. The defendant was adjudged to be'guilty and fined, and from the judgment he appealed to said court, moved to quash the proceedings upon the ground, first, because the act of assembly (1879, ch. 92,) conferring final' jurisdiction upon justices of the peace in cases of assault and battery creates a- statutory offence, and that therefore the warrant ought to have concluded against the form of the statute and the peace and, dignity of the state, which it does not do; ■and secondly, that the warrant does not charge that the of-fence was committed in New Hanover county. The motion was overruled.</p> <p>It was proved on the trial that the defendant was in charge of a bar room kept by one Mary Williamson, when the prosecutor entered to arrest an individual who was supposed to be in the bar room, or in an adjoining room, where a large number of persons were engaged in dancing. The prosecutor swore that he showed the warrant for the arrest of the person for whom he was searching, and that he was ordered out of the bar room and finally pushed out of it by the defendant. Tlie jury returned a verdict of guilty, and the-defendant moved in arrest of judgment upon the grounds above stated. Motion denied. Judgment, appeal by defendant.</p>

Indictment for Embezzlement tried at April Term, 1879, of New Hanover Criminal Court, before Meares., J. After charging the election and qualification of the defendant -as clerk of the superior court of New Hanover county, the indictment further charged that he by virtue of his office and in pursuance of an act of the general .assembly ratified on the 10th of March, 1877, received and collected from one Alexander Oldham the sum of one dollar on a certain mortgage deed as a…

Indictment for a Misdemeanor under Bafc. Rev., ch. 32, § 95, tried at Spring Term, 1879, of Edgecombe Superior Court, before Eure, J. The bill charged that defendant with force and arms did unlawfully injure and abuse a certain hog the property of the prosecutor, said hog being at the time in a certain enclosure not surrounded by a lawful fence, contrary, &c. After a verdict of guilty, the defendant’s counsel moved in arrest of judgment because the word “wilfully” or some…

Indictment for a Misdemeanor, tried at Spring Term, 1879, of Caldwell Superior Court, before Graves, J. The facts appear in the opinion. Verdict of guilty, judgment, appeal by the defendants.

<p>Irrelevant Testimony — Consequences of its admission.</p> <p>1. On a trial for murder it appeared in evidence- that the deceased was, probably, slain while chasing a hog. To connect the prisoner with the homicide the state was permitted to prove (prisoner excepting) a declaration by her that “ the hog was braised, and when salted down after it was lulled, was nice, clean meat, but that when site put it in warm water, it would look like clotted blood ” -7 Held, that the testimony, standing alone, liad no tendency to implicate the prisoner.</p> <p>2. The admission of irrevelant testimony, over objection properly interposed, is ground for a new trial.</p>

<p>Juror — Indictment—Burning Gin House — Statutes Construed— Punishment.</p> <p>1. One who had been summoned on a special venire, but not drawn on the jury, within two years next preceding the term of court at which he is summoned as a talesman, is not thereby disqualified under the act of 1879, ch. 200. To render such talesman incompetent, it must be shown that he “has acted” or served upon a jury within the time prescribed by the act.</p> <p>2. An indictment for burning a gin house charging the offence to have been done unlawfully, maliciously and feloniously, is sufficient under the act of 1869, ch. 167, § 6. The words used in the bill as descriptive of the intent imply that the act was done “wilfully.”</p> <p>3. An indictment for such offence under the act of 1875, ch. 228, cannot be supported; though where it was intended to be drawn thereunder, and is sufficient under the former act, a conviction will be sustained. The two are not inconsistent, but the words “any house” in the latter act do not include “gin house.”</p> <p>4. Where the punishment imposed by the sentence of a court is unauthorized, the judgment will be reversed and the case remanded to the end that a legal judgment may be pronounced.</p>

INDICTMENT for Larceny, tried at Spring Term, 1879, of Pitt Superior Court, before Seymour, J. The evidence was that the defendant who was in the employ of the prosecuting witness took the key of the witness’ safe from his pocket one morning before the witness had dressed, and went to his office, unlocked the safe, took therefrom a drawer containing money, completely removing the-same from the safe, and was handling the money when the witness detected him ; but the money was…

IkdictMeNT against tbie defendant as Overseer of a Public Road, tried at Spring Term, 1879, of Alexander Superior Court, before Graves, J. The facts necessary to an understanding of the case are set out by Mr. Justice Dillard in delivering the opinion of this court. There was a verdict of guilty; judgment, appeal by defendant. /

The facts are stated in the opinion. From the order made in the court below, Galloway, solicitor for the State, appealed.

Indiotment for Larceny tried at April Term, 1879, of New Hanover Criminal Court, before Meares, J. The case states: This bill of indictment was sent to the grand jury at February term, 1879, of said court, and returned with the endorsement “not a true bill,” and signed by the foreman.

<p>Petition for Certiorari, filed by the State and granted at June Term, 1879, of The Supeeme Couet.</p> <p>The indictment was found in Wake (see .same case, 79 N. C., 632)-and removed to Franklin for trial, and the case was called at Spring Term, 1879, of Feaniclin Superior Court, before Buxton, J.</p> <p>The facts are sufficiently set out by Mr. Justice Ashe in delivering the opinion. The state asked for an appeal from an order made by Plis Honor which was refused, and. the state then applied for a writ of certiorari to bring up the record for review.</p> <p>Certiorari a common law writ before appeal, first, to remove causes, second, to control inferior courts generally or for particular errors of law. 1 Tidd Ch., 15 and 16 ; 3 Bl. Com., 41, 42 ; 4 Ibid., 265, 321; 2 Chitty Gen. Pr., 353. Statutes affirming common law, Potter’s Revisal, ch. 5, § 2, and chapters 115, 133 and 693; Rev. Code, ch. 33, § 6; Bat. Rev., ch. 33, § 55; ch. 17, § 413; see also Brooks v. Morgan, 5 Ire., 481; 13 Ire., 372; 7 Ire., 130. As to interlocutory judgments : State v. Jefferson, 66 N. C., 309; Wiseman, 68 N. C., 203; McGimsey, 80 N. C., 382. Removal for trial before issue and for what. Bailey v. Beaumont, 22 E. C. L. B,ep., 415; 18 Ibid., 100; 22 Ibid., 329; 3 B. & Pul., 12; 1 Stanton, 57; Mayor v. Proctor, 1 Wilson, 298; 7 Term, 694 and 731; 3 East, 330; 1 Chitty Or. L., 201 and ch. 9; 1 Tidd., ch. 25. Statutes in affirmance. Potter’s Revisal, ch. 693, § 12; Rev. Code, ch. 31, § 115; Acts 1874-75, ch. 19; compare Bat. Rev., ch. 17, § 69. See also Jones v. Frost, 28 Cal., 245; Bell v. Morris, 15 N. J., 657. As affidavit is no part of record, supreme court cannot know cause of removal. State v. Bar-field, 8 Ire., 344. Order for removal final. State v. Reid, 1 D. & B., 377. Act remedial and should have liberal construction to effect its purpose. Cause of issue: If replication general. Rex v. Sheen, 12 E. C. L., 295; Whar. Cr. L., §§ 53, 2992, 3000, 3398 ; State v. Carroll, 5 Ire., 142 ; State v. Christmas, 4 D. & B., 411. If replication special, a writ of certiorari should have issued to Wake for amended record. State v. Munroe, 8 Ire., 258 ; State v. Oraton,-Q Ire., 164. Power of amendment is in the court. State v. Reid, 1 D. & B., 377 ; Ashe v. Streater, 8 Jones, 256; State v. Buckley, 72 N. C., 358. Refusal to make proper amendment as for want of power, erroneous. Freeman v. Morris, Busb., 287; State v. Cherry, 2 Dev., 550.</p>

. INDICTMENT for Fornication and Adultery, tried at Spring; Term, 1878, of Bujbke Superior Court, before Cloud, J. The record shows that the defendant and one Eliza Lackey were found guilty of the offence charged in the indictment,, and moved for a new trial, which motion was overruled. The court then pronounced judgment that the defendant,.

INDictment for Misdemeanor under Bat. Rev., ch. 32, § 116, tried at Spring Term, 1879, of Rowan Superior Court, before Schenck, J. The bill was found at fall term, 1878: The jurors, &c.-, present, that defendant with force and arms, &c., upon the lands and premises of one Jesse W. Miller, &c., did then and there wilfully and unlawfully enter upon and fell and destroy the timber growing thereon, after being forbidden to enter upon said premises by the said Miller, and without…

INDICTMENT for removing a Pence under Bat. Rev., ch. 32, § 93, tried at Spring Term, 1879, of Henderson Superior Court, before Gudger, J. The bill of indictment charged that the defendant did wilfully and unlawfully pull down, injure and remove a fence surrounding a cultivated field. The facts and exceptions to the charge of the court are sufficiently set out in the opinion. Verdict of guilty, judgment, appeal by defendant. (See State v. Ilovis, 76 N. C., 117.)

CRIMINAL Action for failure to work a Public Road commenced before a Justice of the Peace, and tried on appeal at May Special Term, 1879, of New Hanoyer Criminal Court, before Meares, J. The j ury found a special verdict: “That defendant ivas duly summoned by the overseer of the road to work upon the same; that the road was a public one, and the overseer duly appointed; that defendant refused to work, on the ground that he is a bar pilot on the Cape Pear river and exempt…

<p>PbtxtioN for a Certiorari filed by the Prisoner and granted at June Term, 1879, of The Supreme Court.</p> <p>• The prisoner was put upon trial for murder at Spring Term, 1879, of Pitt Superior Court, before Seymour, J.</p> <p>After the jury were sworn and impaneled, His Honor upon the facts set out in the opinion of this court ordered a mistrial, refused to discharge the prisoner, and remanded him to jail to be held for another trial. And thereupon the prisoner obtained a writ of certiorari to bring up the record and review the ruling of the court below. Upon the argument here, the state relied mainly upon Wiseman’s case, 68 N. C., 203.</p>

Indictment for a Misdemeanor under Bat. Rev., ch. -32, § 116, tried at Spring Term, 1879, of Jackson -Superior Court, before Qudger, J. The bill charged the defendant with entering upon the land of E. C. Chastain, after being forbidden to do so.

<p>Petition for a Certiorari filed by the prisoner and granted at June Term, 1879, of The Supreme Court.</p> <p>The facts upon which the motion for the discharge of prisoner is based are sufficiently stated by The Chief Justice in delivering the opinion of this court.</p>

<p>INDictment for a Misdemeanor under Bat. Rev., ch. 32, § 95, tried at Spring Term, 1879, of Buncombe Superior Court, before Cudger, J.</p> <p>The bill charged that the defendants, William Roberts, James Dixon and others did wilfully and unlawfully abuse and kill one hog, the property of M. M. Harper, in an enclosure not surrounded by a lawful fence, &c. The facts constituting the grounds of the exception taken in the court below appear in the opinion. Verdict of guilty as to William Roberts, judgment, appeal by defendant.</p>