Volume 82 — North Carolina Reports

<p>Petition to Rehear — Affirmance of Judgment.</p> <p>The decision in Mizellv. Simmons, as reported in 79 N. C., 182, is affirmed, and must stand as the judgment of this court.</p>

Motion to dismiss an Appeal heard at January Term, 1880, of The Supreme Court. At February term, 1879, of the superior court of Wake county, a judgment was rendered (by Eure, J., presiding) in behalf of the defendants in a civil action then depending, wherein Hilliard J. Smith is plaintiff, and James J. Lyon, Wiley Lyon and William Jackson, administrator of Lewis Jackson deceased, are defendants.

<p>Practice — Appeal— Certiorari.</p> <p>Where one loses Ms right of appeal and fails to apply for a certiorari in apt time, hut by no neglect of liis own, as is shown by the circumstances in this case, and an execution issues upon the judgment obtained against Mm, it was held that his petition for a ceHiorari may be filed and the adverse party notified to show cause why it shall not be grantedand that the sheriff be restrained from proceeding under the execution until.the further order of this court.</p>

<p>Practice — Judge's Charge— Contract — Parol promises.</p> <p>1. An alleged error or omission in a fudge’s charge must be accepted to on the trial below, and cannot be assigned for error ore tenus and for the first time in this court.</p> <p>2. In an action against A for goods sold and delivered, the question being for whose use they were furnished, there was evidence tending to show that an overseer employed by A and B managed their farms and bought the goods on orders drawn by him as agent of B (B being the agent of A) without specific directions to make purchases, and that some of the articles were used on A’s and others on his farm, A promising to pay the whole account if upon inquiry he found that the articles were used on his farm, the court charged the jury that plaintiff was entitled to recover if they were satisfied the goods were bought for defendant and he promised to pay for them j but that defendant was not liable for any articles furnished B or any one else except himself, and if any of them were not furnished to defendant and he had not promised to pay for them, the plaintiff was not entitled to a verdict for such articles .-</p> <p>Held, in the absence of special instructions asked for, the jury were substantially and properly instructed as to the distinction between parol promises to pay one’s own debt, and those to pay the debt of another.</p>

<p>Civil Action tried at Fall Term, 1879, of Currituck Superior Court, before Gudger, J.</p> <p>The case is stated in the opinion. Judgment for plaintiff, appeal by defendants.</p>

<p>Application for an Injunction heard at Chambers, Fall Term, 1879, of Pamlico Superior Court, before Gudger, J.</p> <p>Upon the hearing the court granted an order that the defendants be perpetually enjoined from levying and collecting taxes to pay certain debts, mentioned in the opinion, and the defendants appealed.</p> <p>In the absence of legislative provision, the annexed territory is not liable for the old debt of the county. Dill. Mun. Corp., § 128; Currituck v. Bare, 79 N. C., 565. Defendants have no power to levy the tax unless the same had been conferred by statute. Com’rs v. Clarke, 73 N. C., 255; Wade v. Com’rs, 74 N. C., 81; Cooley Const. Lim., 487. Plaintiffs had no voice in creating this debt and are therefore not liable. Draining Co. v. Hooper, 2 Metc., 350; Cooley, 493.</p> <p>Where territory is annexed to a county, it becomes a part of it for all purposes, and the rule of absolute uniformity in taxation is applicable. Cooley on Taxation, 180; Burroughs,. 51; and where territory is taken from an indebted county it is relieved of the debts of such county in the absence of legislative provision to the contrary, Dill. Mun. Corp., § 128; 92 U. S. Rep., 807; Currituck v. Dare, 79 N. C., 565. And the converse must be true on principle. Manly v. Raleigh, 4 Jones Eq., 370 ; Dillon, § 126 ; 8 Ohio, 285 ; 13 Mo., 400. Legislature has absolute control of corporations. 11 Ired., 558; Cooley, 281; Dillon, § 126.</p>

■ Civil Action, tried at Fall Term, 1879, of Cumberland Superior Court, before Seymour, J. This action was brought to recover the amount of certain bonds issued by the defendant corporation. Judgment was rendered in favor of the plaintiff, and a writ of mandamus ordered to issue commanding defendants to levy a sufficient tax at the time allowed by law for the purpose of paying the debt, and the defendants appealed. The exceptions are embodied in the opinion.

Civil AotioN, tried at Spring Term, 1879, of New Hanover Superior Court, before Seymour, J. The action was brought to fall term, 1878, which began on Monday the 2d day of December, 1878. The summons was served on Thursday the 21st day of November, 1878 ; and the defendant contended that the summons was not served ten days before said term, and that the spring term was therefore the appearance term.

<p>Justice’s Process — Failure to Return — Amercement.</p> <p>Under the act of 1874-’75, eh. 33, a justice of the peace has no power to amerce the sheriff of a county other than that in which lie hold his court, for failure to make clue return to process issued by such justice. He can only amerce the sheriff of his county when he fails to perform the duties imposed by that act.</p>

<p>Confirmatory Evidence — Declarations of deceased persons.</p> <p>1. Proof that a witness made a statement in regard to the matter in dispute consistent with that testified to on the trial, is admissible as confirmatory evidence.</p> <p>2. Upon an issue relating to the contents of a lost or destroyed deed, the acts and declarations of a deceased person tending to show the extent of his title under the deed and that by it an estate of inheritance pass*ed, are inadmissible in evidence; but may be received when they qualify the possession, or are explanatory thereof.</p> <p>3. Such declarations merely narrative of a past occurrence cannot be re_ eeived as proof of the existence of such occurrence.</p>

<p>•Special Proceeding for Partition of Land commenced in the probate court, and tried at Fall Term, 1879, of Cumberland Superior Cou rt, before Seymour, J.</p> <p>The facts appear in the opinion. Verdict for plaintiffs, judgment, appeal by defendants.</p> <p>Cited and commented on James v. James, '76 N. C., 331; Braclsher v. Cannady., Id., 445; Wilkinson v. Wilkinson, 2 Dev., Eq., 376.</p> <p>Whether a gift-is -an advancement or not, depends upon ■the intention of the parent .at the very time the gift-is made. •Osgood v. Breed’s Heirs, 17 Mass., 357; Riddle’s Estate, 19 Renn.,431'. Every gift of a substantial character (education ■and maintenance excepted) is by Rule 3, chapter 36, of Battle’s Revisal, an advancement, unless it appears at the time •of making it; the- parent intended it should not be-such. The controlling idea in Rule 3 is to secure equality. Johnston v. Johnston, 4 Ired. Eq., 9; Headen v. Headen, 7 Ired. Eq., 159. See also especially Bridgets v. Hatchings, 11 Ired., 68 ; Hanner v. Winburn, 7 Ired. Eq., 142. And as to the question of estoppel in pais, see Bigelow on Estoppel 480.</p>

<p>Rescinding Deed — Evidence—Practice.</p> <p>1. Where an act is performed, even though it he not tainted with illegality or fraud, in ignorance or mistake of facts material to its operation, such act will he set aside in equity, a fortiori should such relief he afforded where one who was a near neighbor and regarded as a particular friend to the grantor obtained from an old, infirm and ignorant widow a deed for a tract of land by untruly stating to her that the supreme court had decided adversely to her interest an action for such land.</p> <p>2. It is improper to read to the jury, as evidence on the trial of a cause, a statement of the facts of another case between privies in estate of the litigants, as found in the reports of the supreme cffurt; but where such impropriety is promptly checked and reprobated by the judge, the party cast will not be entitled to a new trial, unless he can show that he was prejudiced by such incipient wrong before the interposition by the court. The same observations will apply to an unsuccessful attempt to put in evidence a plat of the land of which a reconveyance is sought.</p>

<p>Evidence — Presumption of Regularity — Relevancy—Declarations against Interest — Hearsay—Demurrer to Evidence.</p> <p>1. The fact that a will was found in a book kept by the clerk of the court of pleas and quarter sessions, as required by law, is proper evi- • dencc to go to the jury of the existence of the will of the supposed . testator and of its due probate and registration, (where the original will and court records have been destroyed by Are).</p> <p>2. On the trial of an ifsue as to the existence of a will, it is competent'to show that a paper purporting to be such was publicly read at the funeral of the alleged testator, in the presence of the heirs at law, who afterwards assert that their ancestor died intestate.</p> <p>3. Declarations of persons in possession of land, characterizing their possession, are admissible in evidence, when made in 'disparagement of their title.</p> <p>4. It is admissible to prove, as against an heir denying the existence of a will, that a writing alleged to be such, was taken by one of the devisees in the presence of the heir, from a tin box containing other valuables, and read over in the presence of the heir.</p> <p>5. The foregoing testimony is not obnoxious to the objections which apply to ‘‘hearsay.”</p> <p>6. Upon a demurrer to parol evidence, when the same is loose and indeterminate, or circumstantial, the court will not compel the adverse party to join in the demurrer, unless the other party will distinctly admit upon the record every fact and conclusion which the evidence offered conduces to prove.</p>

This was a motion made before the clerk of the superior court of Craven county for leave to issue execution after the lapse of three years. The judgment was rendered in the superior court at spring term, 1870. Not long after its rendition, David Wharton, one of the defendants, died, and notice of the motion was served on his executor and the other defendant.

Civil ActioN tried at Spring Term, 1879, of Edgecombe Superior Court, before Eure, J. It was admitted in the pleadings that the defendant held two notes against the plaintiff amounting to about eighteen hundred dollars, but the plaintiff in this action avers that he owes the defendant nothing, and brings this suit to recover an amount alleged to be due upon a parol agreement entered into between the parties and relating to the manner in which said notes were to be discharged.

Upon the facts set out in the opinion of this court, His; Honor refused the plaintiffs’ motion for an injunction and dissolved the restraining order theretofore granted, and the plaintiffs appealed. This is not the case of an ordinary injunction in aid of and secondary to another equity. It is to prevent irreparable injury. Purcell v. Daniel, 8 Ired. Eq., 9. The relief here sought is to stay waste and destructive trespass, 6 Jones Eq.,. 88.

Appeal.from an Order made at Pall Term, 1879; of NobthamptoN Superior Court, by Avery, J. The facts constituting the basis of the decision in this court are stated in its opinion. The plaintiff appealed from the judgment of the court below.

<p>'Civil Action tried at Fall Term, 1878, of Graven Superior Court, before Seymour, J,</p> <p>■ The plaintiffs are W. J. Jones and wife Clara and Freeman S. Ernell, and the defendants are Adolph Cohen and wife Sally. The complaint alleges that plaintiffs are the owners in fee of a tract of land in Craven county, which descended to them from their grandfather, Moses Ernell, and known as lot No. 2 in the partition of 'his real estate, and that defendants withhold possession of the same. The defendants deny the allegation, and say that Adolph Cohen is the owner in fee of one-half of the land,to wit, that claimed by Jones and wife, having bought it from them in the year 1866, and received a deed in fee with the privy examination of the feme plaintiff. And that by said purchase, Adolph became tenant in common with the other plaintiff, Ernell, and in 1867, filed a petition against Ernell in the court of equity for a sale of the land; that a guardian ad litem was appointed to protect the interest of Ernell, then a minor, and a report being submitted that it would be to the interest of the minor to sell, an order of sale was accordingly made, and the land sold for five hundred dollars on the 7th of February, 1870, on a credit of six and twelve months; that' Ernell became of age on the 14th of August, 1870, and filed an affidavit in the cause on the 7th of February, 1873, opposing the confirmation of the sale, and admitting his co-tenancy with Cohen; and the defendants therefore allege that plaintiffs are not entitled to the possession. The issues and finding of the jury are embodied in the opinion. - Judgment for plaintiffs, appeal by defendants.</p>

Civil ActioN to recover possession of Land tried at August Special Term, 1879, of Rutherford Superior Court, before Buxton, J. The land claimed in the complaint consists of six adjoining tracts containing in all three hundred and eighty-two .and a half acres, and once belonged to James Withrow who 'by deed dated January 24th, 1863, conveyed an undivided one-half in the whole to his son Jason H. Withrow, and by deed dated February 19th, 1875, conveyed the remaining undivided…

Civil Action tried at Fall Term, 1878, of Cleaveland Superior Court, before Schenck, J. The plaintiff and defendant, on the 15th of December, 1874, entered into a written contract whereby the plaintiff leased a tract of land too defendant for five years, beginning on the first day of January next thereafter, at a rent of one-third of all the crops raised on the land to be delivered to plaintiff at Shelby, with .other covenants on the part of defendant for cultivation of the…

<p> Salaries of Judges. </p> <p>The constitution provides that the salaries of the judges shall not be diminished during their continuance in office. The additional compensation of one hundred dollars given to a superior court judge by the act of 1S69 for services in holding a special term, is a part of his salary; Hence section four of the act of 1879, ch. 240, which provides for a reduction thereof, considered separately, is unconstitutional; hut taken in connection with section seventeen of same chapter, its operation is postponed until such time as the constitution ceases to give protection.</p>

PROCEEDING for Contempt, heard at Chambers, Spring Term, 1879, of Pasquotank Superior Court, before Avery, J, Upon the hearing the court adjudged that Walker was guilty and ordered him to be imprisoned, from which judgment he appealed.

Special Proceeding to sell land for assets commenced in the Probate Court of Halifax County, and heard on appeal at Chambers on the 12th of December, 1879, before Seymour, J. After proceedings were had according to law, the plaintiff as administrator of Edward Couigland, deceased, sold the land and Robert P. Hervey became the purchaser, but refused to comply with the terms of sale upon the ground set out in the opinion, to wit, that a good title could not be made by the…

Civil ActioN tried at Fall Term, 1879, of Rowan Superior Court, before Gilmer, J. It is alleged in the complaint that plaintiff recovered several justice’s judgments against the defendant, McIntyre, amounting in all to $558.75, principal money, and caused executions to be issued thereon which were returned nulla bona; that McIntyre, after becoming thus indebted to plaintiff', purchased of one West a house and lot for five hundred dollars, and paid the money and procured the…

Civil Action commenced before a justice of the ‘peace and tried on appeal at Spring Term, 1879, of CUMBERLAND Superior Court, before McKoy, J. The plaintiff endorsee brought this action before a justice of the peace against the defendant, John D. McArthur, the acceptor, and the other defendants composing the partnership firm of W. D. Smith & Co., as endorsers, to recover, the amount due on a draft of one E. Page for one hundred and thirty-five dollars, on which a payment of…

Civil ActioN to recover possession of Land, fried at Fall Term, 1879, of Cumberland Superior Court, before Seymour, J. The facts material to the points decided are set out in the opinion of this court. Verdict for defendant, judgment, appeal by plaintiffs.

<p>Application of payment to open account and note — Judge’s Charges.</p> <p>In an action on a note, where defendant owed notes and accounts to plaintiff (a creditor firm), the following issues were submitted to the jury : first, Did defendant make the cash payment on general account, or did he reserve the right to apply it afterwards ; second, If the right was reserved were any directions given to apply the money first to the open accounts and the balance on one of the notes.</p> <p>The evidence was that defendant left the money with the book-keeper at plaintiff’s store with a request to get up his papers by the afternoon when he would oall and arrange the matter; one of the firm had agreed that the payment should be applied to the accounts and the balance to the note first falling due ; but upon subsequent disagreement between debtor and the other member of the firm, it was applied to the notes, thereby reducing their sums so as to be cognizable before a justice.</p> <p>Thereupon defendant asked the court to charge the jury: first, that if they believed there had been a previous agreement with one of the firm about the application of the cash payment (as above stated) then he had a right on his return in the afternoon to have it so applied ; seeond, if they believed he paid the money as aforesaid, reserving the right to direct its location, he had that right at the time of his return. The first was refused, the second given, and the jury found that it was paid on general account.</p> <p>Held, the refusal of the first instruction was error. The jury should have been aided by the consideration of the conversations between defendant and both members of the firm, in passing upon the second issue. The eharge given had the effect of restricting them to the evidence as to the application at the time the money was delivered to the book-keeper.</p>

PETITION for Divorce tried at Spring Term, 1879, of Halifax Superior Court, before Bure, J. The plaintiff at spring term, 1876, of Halifax superior court, by her petition duly verified and charging the defendant, her husband, with desertion and adultery, applied for a decree of divorce from the bonds of matrimony, and if not entitled thereto, from bed and board and for alimony.

Civil Action for Claim and Delivery, tried at Spring Term, 1879, of Craven Superior Court, before Eure, J. The summons in this action was returnable to fall term, 1874, when defendant moved to dismiss on the ground that the summons was void. The motion was overruled, and upon defendant’s appeal the judgment was reversed. lolk v. Howard, 72 N. C., 527.

■Civil Action tried at Spring Term, 1879, of Beaufort Superior Court, before Avery, J. This action was brought upon a note under seal executed by James S. Campbell (defendant's intestate) and Samuel B. Latham. The facts appear in the opinion. Upon an intimation of the court that the plaintiff could not recover, he took a nonsuit and appealed. The defence of payment may be made under general issue in assumpsit, but specially pleaded in action of debt on a specialty. 2 Greenl.

The facts are reported in same case 77 N. C., 268, and 80 N. C., 46. Upon the coming in of the report of a referee, the court intimated that the plaintiff could not maintain his action without submitting to a judgment against him for the amount actually due the defendants with six per cent interest thereon. Whereupon the plaintiff took a nonsuit and appealed.

<p>Special Proceeding- commenced in the Probate Court of Halifax and heard on appeal on the 12th of December, 1879, before Seymour, J.</p> <p>The plaintiff executors seek to subject the land of their testator to the payment of debts. The defendants demurred. Demurrer sustained by the clerk, but overruled by the judge, and the defendants appealed.</p>

<p>Account — Issue involving final settlement, when submitted.</p> <p>1. An account will he ordered as of course where defendant admits he is an accounting party. But if the liability to account is denied (as here by former settlement) no order of reference or other issue can he had until the alleged bar is passed upon; Therefore in an action on the bond of a railway treasurer where the defendant’s accounting character is admitted in the answer but a settlement with the company pleaded in bar of an account, the court did not err in submitting an issue to the jury in relation to the settlement, as a preliminary matter.</p> <p>2. On the trial of such issue the proof was that defendant had turned over the assets enumerated in a certain receipt and had had other moneys not embraced therein, and that the party giving the receipt refused to execute it as in full. Upon this proof the judge properly told the j ury there was no evidence of a final settlement.</p>

Civil ActioN to recover Possession of Land, tried at Fall Term, 1879, of YaNCEY Superior Court, before Schench, J. The complaint alleges that the plaintiff was seized in fee ■of the land in dispute, that lie was entitled to the possession, land that the defendants unlawfully withhold the possession from him. The answer denies the allegations of the complaint. • The case was submitted to a jury who found all the issues in favor of the plaintiff. Judgment, appeal by defendants.

This was a motion before the clerk of the superior court of Gaston county for leave to issue execution on a judgment rendered in behalf of the plaintiff against the defendant at May term, 1867, of the superior ewurt of said county.

<p>Civil AotioN to recover Possession of Land, tried at Fall Term, 1879, of WilsoN Superior Court, before Eure, J.</p> <p>Case Agreed: This action was brought on the first day of February, 1869, for the recovery of a lot in the town of Wilson, which is part of a tract of land formerly owned by one William Farmer and. upon whose death descended to his heirs at law, situate at that time in the county of Edge-combe, but is now and was at the commencement of this action embraced in the county of Wilson (formed in part from Edgecombe). In 1837 the said heirs filed a petition for partition of said land, in the court of equity of Edge-combe, the feme plaintiff in this action being a plaintiff in that proceeding, and a minor represented by a guardian ad litem; and before she arrived at the age of twenty-one, she married the plaintiff, James D. Parmer. Service of process was made upon the defendants, resident and non-resident, and in 1838 the prayer of the petitioners was granted and the land sold by the clerk and master in equity to one Arthur D. Farmer, who paid the purchase money into court. The sale was confirmed in 1839 and an order for the distribution of the fund made, also for the execution of a deed to the purchaser. After which final decree the case was dropped from the docket and never afterwards brought forward until spring term, 1873, upon due notice given.</p> <p>The defendant deduces his title to the lot in controversy from the said Arthur D. Farmer by a regular chain of conveyances. The share to which the feme plaintiff was entitled in said land was an undivided one one-huudred-and-eighth part. After her arrival at the age of twenty-one-years but during her coverture, she received from the clerk and master her share of the proceeds of sale of said land, but without any privy examination. No deed executed by the master to said purchaser according to the order of the said court of equity can be found by the defendant.</p> <p>The notice above referred to was served upon the plaintiffs at the instance of-the defendant informing them that the defendant would apply to the superior court of Edge-combe at the spring term, 1873, for an order directing its clerk to execute a deed for the land sold as aforesaid, in lieu of the deed made by the former clerk and master, which has been lost. The clerk was thereupon ordéred to execute the conveyance, and it was further adjudged that the effect of the decree should be to transfer to said Arthur D. Farmer or his assigns the title to said land. The cause coming on to be heard on the case agreed, the court gave judgment for the defendant and the plaintiffs appealed.</p>

<p>Practice — Proceedings in Partition — Charge for Equality in Partition — Revival of Judgment — Notice.</p> <p>1. Where in a partition of land, one share is charged with the payment of a certain sum to another share for equality of partition a venditioni exponas can issue upon the decree; and it is not admissible for the creditor to obtain a personal judgment against the debtor for the sum so charged.</p> <p>2. Where, in such ease, the creditor did obtain a personal judgment against the debtor and after his death had the judgment revived, execution issued thereon and a part of the land in the possession of one of the heirs of the deceased debtor (the same having been partitioned( sold, hut without notice to his heirs or personal representatives; Held,, that the purchaser at such sale acquired no title.</p> <p>3. In such case, even if the execution had been a ven. ex. issued upon the' decree in the original partition suit, a sale under it would have passed no title to the purchaser, there being no notice to the heir in possession of the part sold ; she was entitled to notice and an opportunity to show payment or to defend herself against the placing of the entire sum due. on her portion of the land.</p>

<p>Injunction — Receiver—Mining Interests.</p> <p>in this state an injunction will not be granted to stop the working of a gold mine, but where it appears that the party in possession is of doubtful ability to respond in damages if he be cast in the action, a receiver should be appointed to secure the profits.</p>

Motion to set aside a Judgment heard at Fall Term, 1879, of New Hanover Superior Court, before Eure, J. The court refused to grant the motion and the defendant appealed.

MotioN to vacate an Order under C. C. P., § 133, heard at January Special Term, 1880, of Davidson Superior Court, before SchencJc, J. This was originally a motion before the clerk of the superior court for leave to issue execution on a judgment obtained by plaintiff against the defendants at spring term, 1868, for the sum of one hundred and fifty dollars, with interest and cost.

Civil ActioN for Damages commenced before a justice of the peace and tried on appeal at Pall Term, 1879, of RowaN Superior Court, before Gilmer, J. An ordinance of defendant corporation imposed a tax of one dollar upon all dogs running at large on the streets, and required the owners to put collars and badges on their dogs as evidence of the payment of the tax.

Civil ActioN to recover, possession of Land, tried at Fall Term, 1879, of GreeNE Superior Court, before Eure, J. The cause was heard upon the pleadings and a case agreed-which are sufficiently set out in the opinion. Judgment in< favor of defendants, and plaintiff appealed.

<p>Special Proceeding for Partition of Land commenced in the probate Court and heard on appeal at Special Pall Term, 1879, of Iredell Superior Court, before Qudger, J.</p> <p>This proceeding involved the construction of a will, and the plaintiffs appealed from the ruling of the court below.</p>

■ Civil Action for Construction of a Will heard at Fall Term, 1879, of MeckleNburg- Superior Court, before Bux-ton, J. The plaintiff appealed from the judgment of the court below. Cited and commented on Jones v. Posten, 1 Ired., 166; Pruden v. Paxton, 79 N. 0., 446 ; Lassiter v. Wood, 63 N. C., 360; Macon v. Macon, 75 N. C., 376.

<p>MotioN for Judgment in a proceeding heard at January Special Term, 1880, of Davidson Superior Court, before Schenclc, J.</p> <p>Upon the facts set out in the opinion judgment was rendered against the defendant John H. Peebles, from which he appealed.</p>

PetitioN to sell land for assets (transferred from the late court of equity) heard at Fall Term, 1879, of MoDowell Superior Court, before Schenck, J. This was a bill filed in the court of equity to sell land for partition between plaintiffs and defendants as heirs at law of James Burgin, deceased, and one other claiming the share of one of the heirs by assignment, and at the sale under a decree in the-cause, defendants L. E. Burgin and John D. Burgin became purchasers of one…

<p>Specific Lien— Purchaser — Homestead.</p> <p>1. Where land sued for has been adjudged in a previous suit to be subject to a specific lien before the adoption of the constitution of ’68 and to be sold, such judgment is one in rem directly affecting the land itself, and a party to the suit cannot, in a subsequent action by the purchaser to recover the land, collaterally attack the judgment and claim the res as a homestead exemption.</p> <p>2. And the plaintiff here by his purchase has title running back to the lien to which the land was subject, and is entitled to recover the present possession as against the defendant homesteader.</p>

Petition for Dower heard at Spring Term, 1879, of Yad-kin Superior Court, before Schenek, J, This was a petition-for the assignment of dower to the plaintiff, Susan'Jenkins, a widow of Francis Jenkins, in the lands described in the petition, which cameffiy appeal from the probate court to the superior court, and His Honor being of opinion that plaintiff was not entitled to dower in the land in controversy gave judgment accordingly and the plaintiff appealed.

-Civil Action commenced before a Justice of the -Peace ;and tried on appeal at Fall Term, 1879, of Northampton -Superior Court, before Avery, J. The plaintiff submitted to a nonsuit and appealed.

<p>Personal Property Exemption — “ Old Debt.”</p> <p>1. The personal property exemption against a debt contracted in I860 is only such as was secured to the debtor by the law existing at the date of the contract,|víz : Rev. Code, ch. 45, §§7,8.</p> <p>2. The exemption law as applicable to debts contracted at different times discussed and explained by Ashe, J.</p>

Civil ActioN, tried at Pall Term, 1879, of Northampton Superior Court, before Avery, J. Case agreed : At fall term, 1869, of said court, the defendant Hughes, as executor of William M. Crocker, obtained judgment against Lewis B. Hill, the plaintiff’s intestate, for about one thousand dollars. The debt on which the judgment was based was contracted prior to January, 1865. Executions were regularly issued thereon according to law, and the same kept alive.

Civil Action tried at Fall Term, 1879, of CumberlaND Superior Court, before Seymour, J. The complaint states that on the 19th of October, 1874, the defendant executed a mortgage conveying the land in dispute to the plaintiff to secure the payment of the sum of eighty-five dollars with interest from April, 1873, which he owed plaintiff; that defendant failed to pay the same according to the terms specified in the deed, except the sum of about thirty-five* dollars, and that…

Special Proceeding to sell Land for Assets commenced-in the probate court of Halifax on the 15th of December,. 1879, and heard at Chambers before Seymour, J. The plaintiff is clerk of the superior court and probate judge of Halifax county, and as executor of his testator filed a petition in said probate court to sell land for assets to pay debts.

Civil Action tried at Fall Term, 1879, of Hyde Superior Court, before Qudger, J. The defendant demurred to the complaint upon the ground that the superior court had no jurisdiction. The demurrer was sustained and the plaintiffs appealed.

Civil Action tried at Spring Term, 1879, of New Hanover Superior'Court, before Seymour, J. This action was brought by the state on the relation of the plaintiff, as treasurer of New Hanover county, against the defendant sheriff and the sureties upon his official bonds, to recover damages for his failure to account for and pay over certain taxes.

<p>JRecordari — Appeal from Justice’s Court.</p> <p>1. On petition ior writ of recordari it appeared that the petitioner was one of the defendants against whom judgment was recovered in a justice’s court, and lived in a county other than that of the justice forty miles from the place of trial; that he was making preparations to attend the trial but failed to do so and lost his appeal by reason of sickness and his consequent inability to procure the services of an agent to represent him; Held, a proper case for the aid of remedial process and error in the judge to refuse the writ, though there be no evidence of efforts made to get an agent.</p> <p>2. Under the circumstances of this case a delay of three months in applying for the writ will not deprive the petitioner of its benefit, as no damage thereby accrues to plaintiff; nor will the denial of the first application furnish ground for a refusal of the writ upon an amended affidavit containing an additional and material fact.</p>

Contboversy submitted without action under C. C. P. § 315, and heard in CUMBERLAND Superior Court, on the; 22d of January, 1880, before Buxton, J. Judgment for plaintiffs and appeal by defendant.

Petition for Certiorari granted at January Term, 1880, of The Supreme Court. This case was brought to this court at the present term by a writ of certiorari as a substitute for an appeal, and the facts as gathered from the record, the petition for the writ, and the certificate of the clerk, are fully set out in the opinion of the court.

Civil Action tried upon complaint and demurrer at Spring Term, 1878, of Cabarrus Superior Court, before Cox, J. The plaintiffs allege a contract of sale to defendants of two bales of cotton, at ten and a half cents for one, and ten and sixty-five-one-hundredths cents for the other, on the terms that the price was to be paid down and no title to pass until payment made, and the cotton was passed into the defendants’ possession on the condition aforesaid.

<p> Contract, construction of. </p> <p>1. The construction of a contract does not depend upon what either party understood but upon what both agreed.</p> <p>2. Where the terms of a parol contract are in dispute, the jury ascertains them as a question of fact, and the court determines the legal effect.</p>

<p>PETITION to Rehear filed at January Term, 1879, and heard at January Term, 1880, of The Supreme Court.</p> <p>The plaintiff in his petition assigns as cause of error that the court in its decision held that, he could not recover on the cause of action as stated in the complaint without an amendment thereof. The action was brought to recover damages for an alleged breach of contract in not furnishing a certain number of subscribers to sustain the publication of an Agricultural Journal. See same case, 79 N. C., 164.</p>

INJUNCTION heard at Fall Term, 1879, of Alamance Superior Court, before McKoy, J. The plaintiff, the N. C. and R. & D. railroad companies, applied for an injunction, pending the action, to restrain the defendant commissioners from proceeding under the act-of 1879, ch. 158, to assess and collect the taxes alleged to be due from plaintiff. The application was refused and the plaintiff appealed.

Civil Action commenced before a justice of the peace arid tried on appeal at Fall Term, 1879, of Mecklenburg Superior Court, before Buxton, J. On the 18th day of May, 1877, the plaintiff sued out a warrant from a justice of the peace against the defendants upon their liabilities as acceptors of an unpaid draft for one hundred and twenty-five dollars; and also an attachment against their goods and chattels which was levied on the same day upon six half casks of bacon,…

Civil Action tried on complaint and demurrer at Fall Term, 1879, of Gbanville Superior Court, before McKoy, J. The plaintiffs are Robert J. Gill, (administrator of Robert Gill, deceased,) and Robert Gill, M. Fuller (by her next -.friend Robert J. Gill) and W. M. Hight. The defendants .are D. E. Young, Isaac J. Young and W. H. Hughes. Robert Gill departed this life in 1873, leaving Robert J. •Gill, (who became his administrator) and M. Fuller his next of kin and heir at law.

<p>Plea of Former Judgment — Jurisdiction—Neto Trial — Appeal.</p> <p>1. Upon plea of former judgment, the defendant showed by the record of a justice’s court that there had been a trial between the same parties on the same bond, the defence was a plea to the jurisdiction and non eat factum, and case dismissed at plaintiffs’ cost the justice testified there was evidence on the plea of non est factum at the trial before him, and that he decided against plaintiff on the ground of a want of jurisdiction j Reid, the picáis not sustained by the proof.</p> <p>2. A justice of the peace has no jurisdiction of an action where the ‘ ‘ principal sum demanded ” exceeds two hundred dollars, unless the plaintiff remits the excess, and the same is entered of record.</p> <p>3. Whether a new trial should be granted under the circumstances of this case is a question of discretion addressed to the presiding judge, and no appeal lies from his.ruling thereon.</p>

<p>Evidence — Equitable Defence — Payment.</p> <p>In an action against an administrator for the non-payment of a decree rendered at spring term, 1S57, the defendant denied that there was such record and averred it was of spring term, 1856, and that he had paid the same ; and the court having ruled that the record was of 1856 to which there was no exception, it thereupon became competent for the defendant to sustain his allegation of payment by the production of receipts which were dated after the actual decree but before the time of the decree as alleged by the plaintiff. And even if the receipts were anterior, they were available as an equitable defence.</p>

Civil ActioN to recover Land tried at Fall Term, 1879, of Davie Superior Court, before Gilmer, J. There was a verdict for the defendant, a motion for & venire de novo. Motion overruled and judgment for defendant,, from which the plaintiff appealed.

<p>Civil Action tried at Spring Term, 1879, of Moore Superior Court, before McKoy, J.</p> <p>Verdict in favor of the plaintiff, judgment, appeal by defendant.</p>

Civil Action for Slander tried at Spring Term, 1879, of Yancey Superior Court, before Graves, J. The complaint charged the defendant with saying to her son — McCurry: 1st. “Your mother (meaning the feme plaintiff) is a damned old rogue and has concealed for you from your cradle up/’ 2d. “ That your mother (meaning the feme plaintiff) is a rogue, she has stolen herself and has concealed for you from your cradle up.” The answer denied each allegation of the complaint.

<p>Motion heard at Fall Term, 1879, of MoDowell Superior Court, before SchencJc, J.</p> <p>The plaintiffs, T. Y. Lytle and B. F. Bynum, brought this action to recover possession of land purchased at an execution sale on a judgment against the defendant who was in the sole possession claiming it as his own. No answer being filed to the complaint, the plaintiffs moved for judgment by default and for a writ of possession, and thereupon the eounsel for L. E. Burgin filed an affidavit and moved to be made a party defendant, and have leave to file an answer. The plaintiffs filed counter-affidavits, and upon the hearing the court refused the motion of L. E. Burgin ; first, because the affidavits show that the defendant was in the sole possession of the land claiming it as his own and had been for years; and secondly, the motion is also refused, in the exercise of what the court believes to' be its discretion. And from this ruling L. E. Burgin appealed.</p>

Motiok for an Alias Mandamus heard at Fall Terra, 1879,. of Montgomeky Superior Court, before Buxton, J. After due notice given by the plaintiff of a motion to-renew an order for a writ of mandamus to be issued to defendant commissioners, His Honor made the following order: It appearing from an inspection of the record in, this case that plaintiff recovered judgment against defendants at fall term, 1875, for four hundred and fifteen dollars- and ninety-seven cents, and…

<p>Civil Action tried .at August Special Term, 1879, of IREDELL Superior Court, before Oudger, J.</p> <p>The following are .substantially the facts as shown by the record and statement of the case: The plaintiff declared upon a -certificate of deposit, which is as follows, to wit: Bank of Statesville, No. 1,604. Statesville, N. C., May 10th, 1875. W. F. Wasson has deposited in this bank one thousand currency dollars, paj'-able thirty days after notice is given’R. F. .Simonton, cashier, on the return of this certificate properly endorsed, with interest at the rate of eight per cent per annum, if left for twelve months.</p> <p>(Signed) R. F. Simonton, Cashier.</p> <p>The certificate was endorsed by W. F. Wasson in blank, and he was sued as endorser. The certificate was transferred by the defendant W. F. Wasson, who was sheriff of the county of Iredell, to C. A. Carlton, then the treasurer of the county, on a settlement in payment of the taxes due the ■county for which he was liable as sheriff; and it was after-wards turned over by Carlton to his successor in office as a part of the county funds. The defendant Wasson contended that he was not liable as an endorser of the certificate, for the reason that when he endorsed it in blank, it was understood between him and Carlton that he was not to be liable for the same. And there being some conflict of testimony on this point, the issue was submitted to the jury: “ Was it the intention of the parties that Wasson was to he liable on the transfer of the certificate, or was it endorsed by Wasson only to transfer the title and enable the county to draw the money on it?”</p> <p>It was in proof that the hank was considered good at the time of the transfer, and the certificate was the property of the county, and it was admitted that C. A. Carlton was treasurer of the county at the time, and that the certificate of deposit was a negotiable instrument. The plaintiff asked the court to instruct the jury,</p> <p>1. That if they believed that the board of commissioners received said certificate with a blank endorsement thereon of defendant’s name, for value and without notice of any understanding, if any, as to the nature of said endorsement, made between Carlton and Wasson, then defendant is liable.</p> <p>2. That if the jury believe that Carlton took the certificate of deposit, relying on his ability to collect the same, and that he turned over said certificate to plaintiff in settlement of his indebtedness and without notice of any understanding between Carlton and Wasson, then defendant is liable and plaintiff is entitled to recover.</p> <p>The court declined to give the instructions as prayed for, and charged the jury, “ that if Carlton received the certificate as treasurer of Iredell county, and in payment of a debt due by Wasson to the county, his (Carlton’s) act was the act of the county; that if defendant wrote his name across the hack of the certificate of deposit, the law presumed that he intended to make himself responsible therefor, and that the burden was on the defendant to rebut this presumption raised by the law; that if he (Wasson) had satisfied them by a preponderance of testimony that at the 'time he endorsed the certificate, the contract between him and Carlton was, that he was not to be liable and that his endorsement was to pass the title only, then they should find the issue in favor of the defendant; but if they were not so satisfied, they should find the issue in favor of the plaintiff.”</p> <p>The plaintiff excepted to the instructions, and the jury found the issue in favor of the defendant, Wasson, and that he was not liable for the certificate of deposit. No defence having been set up by the other defendants, judgment was rendered against them and in favor of the defendant Wasson upon the finding of the jury, from which judgment the plaintiff appealed. The bank of Statesville, one of the defendants, was solvent at the time the deposit was made, and alleged to be insolvent at the time of suit brought.</p>

Civil Action tried at Fall Term, 1879, of GastoN Superior Court, before Buxton, J. The plaintiff brings bis action to recover the balance due on a promissory note under seal as follows: “$3,000 On the first day of January, 1876, with, interest from the 1st day of June, 1875, at eight per cent per an-num, I promise to pay Jonas Hoffman tlie sum of three thousand dollars for value received. Witness my hand and seal, this -day of-, 1875. James 0.

Civil Action for Damages for breach of contract tried at Fall Term, 1879, of Tbansylvania Superior Court before Graves, J. Verdict and judgment for plaintiff, appeal by defendant.

.Application for the Removal of an Administrator heard on appeal at Spring Term, 1879, of New HaNOVer Superior Court, before Seymour, J. Upon the facts set out in the opinion of this court, His Honor ordered the case to be remanded to the probate court to the end that the defendant administrator be removed and a suitable person be appointed in his stead, and from this judgment the defendant appealed.

N. Ford, on a guardian bond on which Larkin Stowe was a surety. Both of these debts were reduced to judgment against the executors of Larkin Stowe at the same term of the court,, and they filed' their petition in the probate court for a license to sell the land for assets, and pending the proceedings they were removed from office, and the defendant Armstrong became administrator de bonis non with the will annexed.

<p>Civil Action tried at Spring Term, 1879, of Mecklen-burg Superior Court, before Kerr, J.</p> <p>Verdict and judgment in favor of plaintiffs, and the defendant appealed.</p>

On the 6th of March, 1865, the defendant was appointed guardian of Mildred Peebles and others, and the plaintiff became one of the sureties on his guardian bond, and an action was brought against the principal and sureties and judgment recovered against them upon the bond at ... term of the superior court of Northampton count}' for the sum of fifteen thousand three hundred and thirty-seven dollars and twenty-eight cents.

<p>Practice — Form of Issue — Evidence—Admissions .of Administrator.</p> <p>1. While tlsafc form Of an issue cannot be commended which submits to the jury a series of alternative propositions which should have been sepa_ rately presented, yet, if the case be snch that an affirmative answer to any one of the propositions entitles the plaintiff to relief, no exception thereto can be sustained.</p> <p>2. The admissions of an administrator, made before he was completely clothed with that trust, cannot be received against him in his representative capacity.</p>

MotioN to dismiss an Appeal from a justice’s court, heard at Fall Term, 1879, of LincolN Superior Court, before Bux-ton, J. The motion was refused and the defendant appealed.

<p>Practice — Submitting Issues.</p> <p>The issues in a cause are made by the pleadings, and it is not error to refuse to submit an issue which the pleadings do not raise.</p>

<p>Action for Land — Practice—Parties—Married Woman.</p> <p>Plaintiff, being the purchaser at an execution sale of the land of the male defendant, brought an action for possession of the same. The feme defendant was allowed to intervene And to answer, setting up title in herself under a senior judgment and prior sheriff’s sale. To meet this defence the plaintiff offered evidence that ’such sale was fraudulently and collusively made to protect the land from the husband’s creditors; Held,</p> <p>(1.) That such evidence could only be rendered competent by allegations in the pleadings impeaching the elder title, and setting forth special facts calling for the exercise of the equitable pow ers of the court to put the elder title out of the way.</p> <p>(2.) That tlie wife was properly admitted as a party, to defend her pos-sessory rights.</p>

<p>Divorce — Alimony pendente lite — Practice.</p> <p>1. A feme defendant in an action for divorce, who does not set up a claim upon her part for a divorce, is not entitled to alimony pendente lite.</p> <p>2. An application for alimony pendente lite can be made by motion in tiie cause.</p>

Civil ActioN tried at Fall Term, 1879, of Pender Superior Court, before Eure, J. The plaintiff brought this action to recover damages of the defendant company for alleged negligence in killing a mule, the property of plaintiff. The facts of the case are substantially set out in the opinion of this court.

<p>Counter-Claim — Parties.</p> <p>1. Where the plaintiff sues upon a bond given for the purchase money of a life estate in land whereof he is tenant in common with the ■defendant and others of the reversion in fee expectant upon the termi-mation of such life estate, the defendant cannot set up a •counter-claim .for damage done by the plaintiff to the inheritance in cutting timber from the land and committing other acts of waste, during the continuance of the life estate, and before the sale thereof to the defendant.</p> <p>■3. Even if such counter-claim were allowable, it could not he pleaded without making t'he other tenants in common of the reversion parties •to the suit.</p>

Civil Action tried at Fall Term, 1879, of Randolph Superior Court, before McKoy, J. The action was brought to recover a sum, byway of contribution, of the defendant’s intestate, William Kirkman. A demurrer to complaint was overruled by the court, and the defendant appealed.

Civil Action to recover possession of Land, removed from McDowell, and tried at Fall Term, 1879, of Caldwell Superior Court, before Schenclc, J. Verdict for defendants, judgment, appeal by plaintiffs.

<p>Execution Sale — Trust Estate..</p> <p>Where A executed a note lor the purchase of land and having paid part'thereof gave his note for the remainder with B and C as sureties, and' had title executed to B who agreed orally that he would pay the balance due; afterwards B sold and conveyed the land to the defendant who purchased for value and without notice of the agreement; Held,.</p> <p>(1) That A had no legal or equitable interest in the land subject to sale-lander execution upon a judgment obtained subsequent to the conveyance to the defendant.</p> <p>(2) That the equity of A in the land, even if enforceable against B, ■was not such as could be enforced against the defendant at the time of •the execution sale.</p> <p>■(3) That the trust estate in A, even if existing under the oral'agreement with B, was not a pure and unmixed trust liable to sale under execution under the act of 1812.</p>

Proceeding under the Landlord and Tenant act, commenced before a justice of the peace and heard on appeal at Spring Term, 1879, of Yadkin Superior Court, before Schench, J. The following facts appear from the case agreed : 1. The defendant entered the premises in controversy under a parol contract of purchase with one R. C. Poindex-ter in 1872. 2.

PetitioN to open biddings for sale of land heard on appeal at Fall Term, 1879, of Perquimans Superior Court, before Gvdger, J. On the death of Henrietta Winslow her lands were sold by decree of the probate court for partition among the heirs-at-law by Caleb White, appointed a commissioner for that purpose.

Claim against the The State heard at January Term, 1880, of The Supreme Court. The application of plaintiff for leave to constitute an action against the state was made at June term, 1879, and the court declining at that time to pass upon the question of leave or the merits, ordered a copy of the complaint to be furnished the governor to the end that he may make such defence against the motion or otherwise at the next term, as he may be advised.

1879, of Davie Superior Court, by Gilmer, J. The injunction granted was continued to the hearing, and' the defendants appealed. The facts of the case are substantially set out in the opinion.

Civil Action commenced before a justice of the peace to recover the amount of a note and tried on appeal at Fall Term, 1879, of Wayne Superior Court, before Eure, J. The note sued on was in the following words: “ On demand, first day of January, 1862, I promise to pay William Carraway, guardian to W. B. Best, or order, one hundred' and’forty dollars, for rent of ‘ home place’ and creek field, value received. January 17, 1861. (Signed) C. W. Biz-zell.

<p>MotioN for leave to issue Execution heard on appeal at Fall Term, 1879, of Wilkes Superior Court, before Gil-mer, J.</p> <p>The motion was granted and the defendant appealed.</p>

<p>Practice — Suit in Equity.</p> <p>Where, under the old practice, proceedings in equity for partition by sale were transferred to' the supreme court, the whole case was taken up, and all subsequent and necessary orders in the cause will he made in this court.</p>

The plaintiff, on behalf of himself and others, the male residents in the city of Charlotte between the ages of eighteen and forty-five years, and tax payers, seek in this action to restrain the defendants from enforcing certain provisions; of the act of March 13, 1879, within the corporate limits of that city. Act 1879, cli. 83.

Civil Actioh tried at December Special Term, 1879, of Haywood Superior Court, before Graves, J. The plaintiff alleging himself to be the owner brings this action to recover the amount due on a note, as follows: One day after date we promise to pay W. W. Stringfield one thousand dollars, for value received. Witness our hands and seals this 29th Oct., 1872.

Civil Action tried at Fall Term, 1879, of Richmond Superior Court, before Seymour, J. The plaintiff sues to recover the residue due on a bond executed to him by the defendants, after deducting the several payments admitted and specified in the complaint.

MOTION by defendant to dismiss the action heard at Fall Term, 1879, of Gaston Superior Court, before Buxton, J, A.t the first term of the court after the coming in of a report of a referee of the statement of an account, the defendant’s counsel moved to dismiss the action “ for want of equity,” and was proceeding to state the grounds of the motion, when the court expressed the opinion that as a demurrer to the complaint had once been filed and overruled, and no appeal taken,…

<p>APPLICATION for an Injunction heard at Fall Term, 1879, of Forsyth Superior Court, before Gilmer, J.</p> <p>The plaintiff’s application was granted and the defendant commissioners appealed,</p>

The plaintiff is a- citizen of Ashe county and owns three hundred and sixty-four shares of, stock in the bank of Abing-don chartered and doing business in the state of Virginia. The stock in the bank is taxed by the laws of Virginia, and the defendant commissioners have listed the same for county and state taxes and placed the list in the hands of the sheriff of the county for collection.

MotioN in the cause heard at Fall Term, 1879, of Buncombe Superior court, before Graves, J. This motion was made by plaintiff to strike out an entry of satisfaction of judgment which had been made at his instance. His Honor found that plaintiff had failed to show by preponderance of proof that he entered satisfaction under a mistaken fact, and refused to allow the motion. From which ruling the plaintiff appealed.

<p>Civil ActioN heard in GastoN county at Chambers on the 26th of February, 1879, before SchencJc, J.</p> <p>His Plonor in the court below, upon the agreement of the parties to this suit, found the facts which were deemed essential to present the points involved, and from his ruling thereon, both sides appealed. The case was disposed of on motions made in this court, rendering it unnecessary to set out the facts found.</p>

<p>Executors and Administrators — Sale of Land — Jurisdiction.</p> <p>1. A proceeding under section 319 of the code, instituted against the heirs, personal representatives, etc., of a deceased judgment debtor, more than three years after his death for the purpose of subjecting certain lands to the payment of the judgment debt, resembles an ordinary action and should be made returnable to a term of the superior court, and not before the clerk.</p> <p>2. An order made by the clerk granting leave to issue execution upon such judgment, is a nullity, and no title is convoyed to tire purchaser by a sale under such execution.</p>

<p>Executors and Administrators — Injunction.</p> <p>Where an administrator sold land to make assets, and it was bought by his sister either for his or their jointjbenefit, the plaintiffs becoming her sureties for the payment of the purchase money, and judgment was rendered against her and the plaintiffs for the balance due on the purr-chase money; and it further appeared that the administrator who was insolvent, remained in possession of the land ; It was held, that the plaintiffs were entitled to an order appointing a receiver to re-sell the land (which was not resisted), and an order restraining the administrator from collecting the money due on the judgment against the plaintiffs, and from using or assigning the commissions due him from the estate, until the determination of the action.</p>

<p>Clerk and Master's Bond — Remedies,</p> <p>Where land was sold under proceedings in equity lor change of investment in 1855, and in 1859 the title was made to the purchaser, the clerk and master ordered to pay the interest on the purchase money annually to the life tenant, and the cause was dropped from the docket; upon a re-docketing of the cause in 187S after the death of the life tenant, and a motion by the remainder-man that the executrix of the clerk and master should be required to show cause why a judgment should not be entered against her for the amount of the purchase money and accrued interest: Held, that the remedy was not by a motion in the cause, but by a summary motion against the executrix and sureties of the clerk and master under Bat. Rev., ch. 80, ,§ 14, or by action upon his official bond.</p>

<p>Motion to vacate a Judgment heard at Fall Term, 1879, of Henderson Superior Court, before Graves, J.</p> <p>The motion was refused and the defendant appealed.</p>

Special PROCEEDING commenced in the probate court and heard on appeal at Pall Term, 1879, of Chatham Superior Court, before Gilmer, J. .This proceeding was commenced by the next of kin of George Drake, deceased, against the defendant, Britton Drake, his administrator, for an account and settlement, and was heard upon exceptions to a report of the clerk of the court. The plaintiffs appealed from the ruling of the judge upon the exceptions, and from the judgment rendered.

Civil Action tried on appeal at December Special Term, 1879, of Haywood Superior Court, before Graves, J. This action was commenced before a justice of the peace in the county of Haywood.

<p>Evidmce^-Part of Conversation — Und/Uje Influence,</p> <p>1. Upon the trial of an action brought for the cancellation of a deed, one of the plaintiff’s allegations being the inadequacy of the'price’($490), a -witness for the plaintiff testified upon cross-examination that he had heard two of the plaintiffs say they would -not give more than $400 for the land on account of the title. Plaintiff then proposed to prove by the witness the whole of the conversation, in which the two plaintiffs expressed the opinion that the deed was fraudulent, &e., but the evidence Was excluded'; Held, to be error, forthe defendants'had brought •out a part of the conversation, and the whole was admissible as evidence qualifying the plaintiff’s estimate of the value.</p> <p>2. The law does not require that persons should be able to-dispose of property with judgment and discretion. It is sufficient if they understand what they are about. Susceptibility to undue influence will not vitiate an instrument operating inter vivos or after death, unless it was induced by fraudulent practices.</p>

Civil Action tried at Fall Term, 187&, of BuNcombe Superior Court, before Graves J. The plaint’ff by his own labor in cultivating a tract of land of which he was in possession, raised a crop of oats which at maturity he gathered in bundles and stacked. The defendant’s intestate entered without license, took and carried away the oats and converted them to his own use.

<p>•Surety and Principal — Exoneration—Subrogation.</p> <p>1. If there be an agreement between a creditor and surety, at the time a mortgage is taken (here of perishable property) to secure the debt of the principal, that the creditor is to “look after” the security, the creditor is bound to active diligence; and if loss is occasioned by his laches, the surety is exonerated to the extent of the value of the mortgaged property.</p> <p>2. But in the absence of such agreement, his quiescence will not discharge the surety ; nor is he required to resort in the first instance to the property conveyed, but may proceed against the surety who is subrogated to the rights of the creditor upon payment of the debt.</p> <p>3. Or, after the debt becomes due and before the surety pays it, ho may ■' compel the creditor to proceed against the principal upon indemnifying him against loss from the suit.</p>

Civil Action to. recover possession of land tried at Fall Term, 1879, of BüNCOmbe Superior Court, before Graves, J. The action having been depending for several terms, it was agreed at fall term, 1879, of said court, that the cause should be referred to arbitrators to settle the differences between the parties, when the following entry was made upon the docket: “ It is agreed by the parties to the above entitled action that the issues therein be referred to R. V. Black-stock…

<p>Appeal— Certiorari.</p> <p>1. To the rule that appeals will- be dismissed on motion of the appellee if not perfected according to law, there are the following exceptions : first, Where the record shows a- written agreement of counsel waiving the lapse of time ; and secondly, Where the alleged agreement is oral and disputed, and'such waiver can be shown by the affidavit of the appellee, rejecting that of' the appellant.</p> <p>2. So, upon petitition for certiorari where it appears from the affidavit of the party resisting it, that there was an oral agreement to'waive the " code time,” the writ will be granted.</p>

<p>Appeal— Certiorari — Laches.</p> <p>Where the appeal from a judgment is lost by laches, and the party afterwards moves to vacate the judgment and for the grant of an appeal therefrom, which motion is refused, and the appeal from this judgment is also lost by a failure to give bond within the time required by law, this court will not grant the writ of certiorari to bring up the case for review, especially where, as in this case, the petitioner shows no merits. The right of appeal cannot be restored by motion to vacate a judgment and an appeal from the refusal.</p>

Civil Action for Divorce a mensa et thoro tried at Fall Term, 1879, of Richmond Superior Court, before Seymour, J- Judgment was rendered for the plaintiff upon the verdict, and the defendant appealed.

<p>Homestead — Conveyance of.</p> <p>The constitutional provision in respect to a homestead is self-executing and vests it in the resident owner; and a conveyance of the homestead in the mode prescribed is effectual to pass the estate, exempt from the debts of the vendor, during- his life at least; and this, notwithstanding- the vendor may have since removed from the state.</p>

Civil ActioN, tried at December Special Term, 1879, of Haywood Superior Court, before Graves, J. The note sued on, “One day after date I promise to pay J. C. Palmer five hundred and 'twenty-five dollars, for value received. Witness my hand and seal. June 3rd, 1863. (Signed) J. R. Love, [Seal],” was endorsed to the plaintiff. Under the instructions of the court, there was a verdict for plaintiff, judgment, appeal by defendant.

<p>Ejectment — Title under reservation in grant — Burden of Proof.</p> <p>1. A continuous and uninterrupted possession of land for seven years, under color of title, manifested by distinct and unequivocal acts of' ownership (as distinguished from successive and occasional trespasses)! is absolutely essential to bar the entry of the legal owner, and ripen a. defective into a perfect title.</p> <p>2. The law cledaiing what acts do, and what do not, constitute such possession, discussed by Smith, C. J., and cases reviewed.</p> <p>3. In ejectment, where a party relies upon a reservation in a grant to support his title, the onus is upon him to show that the land claimed is •embraced within its terms. The presumption contra spoliatorem does not arise upon the facts in this case.</p>

Civil Action to recover possession of land, tried at Spring Term, 1879, of Cleaveland Superior Court, before Cox, J. After the evidence was adduced in support of the title of the parties respectively, the plaintiff’s counsel requested the court to charge the jury: 1. That the call for a natural boundary controls course and distance, but the natural boundary not being found, the course and distance must prevail. 2.

<p>Exceptions on Appeal — Sales under Execution.</p> <p>1. No exception can be taken in the supreme court in a civil case which does not appear to have been taken below, except for want of jurisdiction, or that upon the whole case the adverse party is not entitled to relief.</p> <p>2. Upon a sale of land under execution regularly issued in favor of a plaintiff corporation, the land brought enough to pay off the judgment and costs, but the purchaser was not required to pay the amount of the bid, upon a mistaken belief that at least that much of the assets of the corporation would belong to the purchaser who received a deed for the land; the corporation was afterwards declared insolvent and placed in the hands of a receiver, who moved to set aside the sale, to cancel the receipt on “the execution and annul the deed ; Held, that in the absence of fraud (which was not alleged), the sale was regular and ought not to be set aside, and that the receiver’s remedy, if any, was to pursue the land and charge it with the unpaid purchase money, as assets of the corporation.</p>

PetitioN for Removal of a Cause heard at December Special Term, 1879, of Haywood Superior Court, before Graves, J. The action is brought by the plaintiffs, heirs-at-law of John A. B. Fitzgerald, to set aside and annul a deed conveying the lands described in the complaint and executed by himself and wife, to the defendants, upon the allegation that the intestate was of unsound mind and incompetent to make the deed.

<p>Pleading — Recovery upon Special Contract.</p> <p>The defendant in 1867 leased to plaintiff a city lot, with a covenant that the lessees might make certain improvements, “ but they shall preserve unimpaired ” the entrance and right of way from an alley to the rear of the premises, and providing for the valuation of and payment for the improvement at the expiration of the lease; Held, in an action brought by the lessees to recover the value of the improvements;</p> <p>(1) That under section 93 of the code, a complaint which alleged that the improvements were made “in pursuance of the liberty and privilege granted to tlie lessees,” was sufficient without an express allegation that the rear entrance was preserved unimpaired.</p> <p>(2) Such preservation is not a condition precedent, but a proviso, and if it had not been complied with, this should be set up in the answer.</p> <p>(3) The tendency is to relax the stringency of the common law rule, which allowed no recovery upon a special unperformed contract nor for the value of the work because of the special contract, and to imply a promise to pay such remuneration as the benefit conferred is really worth.</p>

Civil Action tried at Spring Term, 1879, of Orange Superior Court, before McKoy, J. The plaintiff is one of four tenants in common in whose name a petition was filed in the late court of equity of Orange county at fall term, 3863, for partition and sale of a tract'of land of one hundred and fifty acres, the plaintiff an infant appearing by his uncle and next friend the petitioner, Anderson Latta.

Civil ActioN for Damages removed from Halifax and tried at Spring Term, 1879, of NORTHAMPTON Superior Court, before Eure, J. This action was brought under Bat. Rev., eh. 45, §§ 121, 122, 123, to recover damages for the pecuniary injury resulting from the death of Edward Conigland, (intestate of plaintiff) alleged to have been caused by the negligence of the defendant company.

Civil ActioN tried at Fall Term, 1879, of Chatham Superior Court, before McKoy, J. The jury found the issues in favor of the plaintiff, judgment, appeal by defendant.

<p>Civil Action tried at- Spring Term, 1879, of Halifax Superior Court, before Eure, J.</p> <p>Judgment for plaintiff, appeal by defendants.</p>

Proceedings in the nature of a Criminal Action, tried at Spring Term, 1879, of Henderson Superior Court, before Guclger, J. This was a warrant issued by the chief magistrate of the town of Hendersonville against the defendant, and is as follows : “ State oe North Carolina, \ Henderson County.” J “ To the ioivn constable to execute and return forthwith: You are hereby commanded to take the body of G. W. McMinn and cause him to appear before me to answer the complaint of the…

<p>Petition to Rehear — Affirmance of Judgment.</p> <p>The decision in Sudderth v. McCombs, as reported in 79 ÍT. C., 398, is affirmed, and must stand as the judgment of this court.</p>

INDICTMENT for Murder tried at Fall Term, 1879, of Robeson Superior Court, before Seymour, J. Judgment was pronounced upon conviction of the prisoner, and he appealed to this court.

INDICTMENT for a Misdemeanor tried at Fall Term, 1879, of Anson Superior Court, before Seymour, J. The indictment is drawn under the act of 1879, ch. 127, for carrying a concealed weapon. The state proved that the defendant was seen on the track of the Carolina Central railroad pointing a pistol at a train leaving Lilesville, and that he discharged the same.

<p> Appeal, when allowed in state case. </p> <p>An appeal does not lie in behalf of the state in criminal actions, except where judgment is given for defendant upon a special verdict or upon demurrer to indictment or motion to quash. (The law relating to appeal and certiorari discussed by Ashe, J-)</p>

Indictment for Removing a Fence tried at Fall Term, 1879, of Rutherford Superior Court, before Buxton, J. From the ruling of the court below, Montgomery, solicitor for the state, appealed.

<p>Appeal by the State from the refusal of a motion for judgment, made at Fall Term, 1879, of HeNDErsoN Superior Court, by Graves, J.</p>

IndictmeNt for assault and battery tried at Spring Term, 1879, of Graham Superior Court, before Gudger, J. The prosecuting witness testified that defendant on the occasion named was at his (prosecutor’s) house, and on hearing a “jower” asked who began it; one Rogers who was present replied that defendant commenced it.

Indictment for an Assault and Battery, tried at July Special Term, 1879, of Randolph Superior Court, before Avery, J. The defendants, Marion Burke and Patsey Burke (his mother) were charged with an assault upon one Ed. P. Smith. From the judgment pronounced upon the verdict of guilty, they appealed to this court. The exceptions taken on the trial are sufficiently set out in the opinion.

INDICTMENT for an Affray tried at Pall Term, 1879, of Wake Superior Court, before Avery, J. The defendant and one Adolphus Williams were indicted for an affray ; both were found guilty, and the defendant, Taylor, moved for a new trial on the ground of misdirection in the charge of the court to the jury. The motion was overruled, and judgment pronounced against both defendants, from which the defendant, Taylor, appealed.

IndictmeNt for an Attempt to' steal, tried at Pall Term, 1879, of Wake Superior Court, before Avery, J. There were two counts in the bill of indictment, and the solicitor not insisting upon the first, the defendant was tried upon the second count, which is as follows: The jurors, &c, present that Charles Utley, on the 23rd of June, 1879, did attempt to commit an offence prohibited by law, to-wit, did attempt to feloniously steal, take and carry away from the dwelling house…

INDICTMENT for a Misdemeanor tried at January Special Term, 1880, of Wake Superior Court, before Avery, J. The solicitor for the state appealed from the ruling of the court upon the facts found by a special verdict, which is sufficiently set out in the opinion.

Indictment for Fornication and Adultery tried at Fall Term, 1879, of Yadkin Superior Court, before Gilmer, J. The defendant and one Lou Royal were charged and convicted of fornication and adultery, and appealed from the judgment of the court below.

IndictmeNT for Conspiracy, tried at Fall Term, 1879, of Wake Superior Court, before Avery, J. The defendants, John Jackson, Anthony Cotten, Chaney Utley and Grace Burt, are charged with conspiring to impute to one Louisa Pierce the crime of infanticide, and to cause her to be arrested, prosecuted and punished therefor.

Certiorari granted on petition of defendants at January Term, 1880, of The Supreme Court. This was an indictment for burglary and larceny tried at Fall Term, 1879, of Halifax Superior Court, before Avery, J. A nolle prosequi was entered as to the count for burglary, and the defendants were tried on the count for larceny. An appeal was taken from an interlocutory order of His Honor and dismissed in this court.

<p>INdictment for Larceny tried at Fall Term, 1879, of Edgecombe Superior Court, before Avery, J.</p>

INDICTMENT for Disturbing a Religious Congregation, tried at Fall Term, 1879, of GastqN Superior Court, before Buxton, J. The bill of indictment is as follows : The jurors, &c., present that on the first day of April, 1878, &c., a number of citizens were peacefully assembled at Sandy Plain church in said county for religious worship of Almighty God, and the said persons being then and there assembled together for the purpose aforesaid, and actually engaged in Divine worship,…

INDICTMENT for an Escape, tried at November Term, 1879, of New Hanover Criminal Court, before Mean, J. The facts appear in the opinion. The defendant moved to quash the bill on the ground that the judgment of the court was erroneous, in that, the sentence upon the prisoner who escaped from the custody of the defendant, should have authorized his imprisonment in the county jail instead of in the house of correction, of which ' the defendant was manager.

INDICTMENT for a Misdemeanor in escaping from the custody of an officer, tried at Fall Term, 1879, of Graham Superior Court, before Graves, J. The defendant appealed from the judgment pronounced upon the verdict.

INDICTMENT for Larceny tried at June Special Term, 1879, of Wake Superior Court, before Nitre, J. The exception taken in the court below, and the facts applicable thereto, appear in the opinion. Verdict of guilty, judgment, appeal by defendant.

<p>INDICTMENT for Burglary tried at Fall Term, 1879, of McDowell Superior Court, before Schenclc, J.</p> <p>The prisoner was serving out a term of imprisonment at hard labor imposed upon his previous conviction for a criminal offence, and had been sent with other convicts to work on the Western North Carolina railroad. He escaped from the stockade in which the convicts were kept at night, and committed the alleged burglary. Judgment was pronounced upon a verdict of guilty and the prisoner appealed.</p>

<p>Evidence — Loaded Pistol-Practice.</p> <p>1. On trial of ail indictment under the act of 1S77, ch. 4, for shooting at a railroad car, proof that the pistol discharged by defendant was loaded or that the ear was struck, is not necessary to a conviction. If it be unloaded and this is relied on as a defence, the fact must be shown by the defendant.</p> <p>2. An exception not taken in the court below cannot first be taken in this court.</p>

Indictment for an Assault upon and resisting an officer, tried at Special Term, 1880, of Wake Superior Court, before Avery, J. The facts appear in the opinion. Verdict of guilty, judgment, appeal by defendant.

Indictment for Larceny, tried at Fall Term, 1879, of CleavklaND Superior Court, before Buxton, J. There was a verdict of guilty, and from the judgment pronounced the defendant appealed.

<p>False Pretense — Defective Indictment.</p> <p>An indictment under Bat. Bey., ch. 32, § 67, charging that defendant “did designedly, unlawfully and falsely pretend that a horse in his possession was sound and healthy, whereas in truth and in fact the said horse was not sound and healthy, well knowing the same to be false,” by 'which he obtained goods of another with intent, &c., is defective. There is no averment of any false pretense, but only of a falsehood or false affirmation.</p>

INDICTMENT for an Affray, tried at Fall Term, 1879, of Wautauga Superior Court, before SchencJc, J. The defendant was convicted of an affray with one Sam-nel Brewer, and after sentence of a fine of ten dollars and 'costs, and committed until the fine and costs were paid, applied to take the oath of insolvency prescribed in section 31, •chapter 60, of Battle’s Revisal, the ten days’ notice having been waived by the sheriff and other officers of the court, it was .admitted by…

<p>Forcible Entry — Presence and Possession of Proprietor.</p> <p>1. In an indictment for forcible entry, it is not necessary to charge or to show that the proprietor was in the house or present at the time of violent dispossession.</p> <p>2. If one leaves his dwelling house, for a merely temporary purpose, in charge of a member of the family, he cannot be said in law to have quit the possession, so as to make the unlawful entry of a trespasser an entry in his absence.</p>

INDICTMENT for Murder, tried at Fall Term, 1879, of Bertie Superior Court, before Avery, J. The prisoner is charged with the killing of one Peter Freeman in the county of Bertie. The first exception touching the qualification of a juror is stated in the opinion of this court.

IndiotmeNT for Murder removed from Sampson County and tried at Fall Term, 1879, of Wayne Superior Court, before Eure, J. The prisoner was charged with the killing of Babel Au-trey, on the 24th of July, 1878.

INDICTMENT for an. Assault, tried at Fall Term, 1879, of Madison Superior Court, before Graves, I. The defendant was indicted for an assault and battery, and it was charged in the indictment that the assault was made with a deadly weapon and serious damage done to the prosecutor, one Shepherd; but there was no proof that the assault was committed with a pistol or any other deadly weapon, or that any serious injury was done.

<p>Homicide — Jary—Confessions—Declarations—Insanity, plea of.</p> <p>1. Where the incompeteney of a juror was not ascertained until after he had been passed and accepted by the prisoner, the court may than allow a challenge by the state.</p> <p>2. Whether a prisoner’s confessions are voluntary or induced by hope or fear, is a question of fact to be decided by the judge, and his finding is conclusive. What constitutes such hope or fear is a matter of law which is reviewable upon exception taken below.</p> <p>3. Declarations of a prisoner made after the commission of the alleged crime are not admissible in evidence for him, not even in support of insanity as a defence, unless they form a part of the res gestee to some act which is admitted in evidence.</p> <p>4. A voluntary killing of a human being by another is taken by the law to be on malice implied, and no tiling more appearing, is murder. No extenuation or acquittal from that sentence of the law can he had, except upon matter coming from the prisoner, or by legal inferences from the surrounding circumstances, and shown to the satisfaction of the jury.</p> <p>5. So that, if the prisoner shall prove, or it be admitted, that he was insane before the homieide, still his insanity at the time of the homicide is yet an open question of fact which must likewise be established to the satisfaction of the jury ; and if not, then upon the malice implied, the prisoner is guilty of murder.</p>

<p>Homicide — Jury—Trial—Evidence of near relations — Judge's Charge.</p> <p>1'. An alleged irregularity in the formation of a jury cannot be taken advantage of after verdict.</p> <p>it. Upon disagreement of counsel as to facts testified to by a witness, it is not error in the court to have the witness re-examined, especially when in the charge the jury are told that they must be guided by their own recollection of the testimony.</p> <p>3. The credit of a witness related to the party for whom he testifies is thereby affected, and his evidence must be received with some degree of allowance. But if from his testimony and the other facts and circumstances in the case, the jury believe he has sworn the truth, he is entitled to as full credit as any other witness.</p> <p>4. The language of a judge in his charge to the jury must be read with reference to the evidence and points in dispute, and construed in reference to the context — approving' State v. Tilly, 3 Ired., 424. Abstract propositions of law not applicable to the case should not be laid down. Hor is a judge in giving an instruction required to adopt the words of the prayer; a substantial compliance is sufficient.</p> <p>5. The degree of homicide is murder where the prisoner acts coolly and vcngefully or with violence out of all proportion to the provocation ; and this, whether there be '‘cooling time” or not; Therefore, in an altercation about Prepayment of an alleged debt, the deceased promising- to pay when he got the change, the prisoner threatening to whip him if he did not do so then and there; deceased, unarmed, remonstrated with prisoner and expressed friendship for, him ; a fight ensued in which deceased was knocked down ; they were separated and deceased went off; prisoner at the request of a witness put up his pistol which had been drawn, promising to do no more, followed and overtook deceased and engaged in another fight, deceased crying out “hold him off me,” and killed deceased with a deadly weapon ; Held, to be murder.</p>

INDICTMENT for administering Poison, tried at Fall Term, 1879, of Macon Superior Court, before Graves, J. The defendant demurred to the bill of indictment, demurrer overruled, and defendant appealed.

<p>Joinder of Indictments — Arresting Judgment — Conviction of Misdemeanor, on Charge of Felony.</p> <p>1. Where two indictments relate to the same transaction, they are to he •treated as one bill with two counts,, and may be joined wherever a joinder of counts would be authorized.</p> <p>2. When the same act is charged in one hill of indictment as an assault and battery, and in another as an assault with intent to commit a rape,. and the jury convict of a simple assault only, an alleged misjoinder of the charges cannot be taken advantage of by motion in arrest of judgment.</p> <p>3. Where one is indicted for an offence which the bill terms a felony, but which is only a misdemeanor, he may be convicted of the latter offence.</p>

Indictment for an Affray, tried at Fall Term, 1879, of Iredell Superior Court, before Schenclc, J. The defendants, Snow Moore and William Sloop, were tried and convicted on an indictment for an affray in the-usual form. It was in proof that the defendant, Moore, struck his co-defendant with a stick loaded in the end with lead, and knocked out his eye.

INDICTMENT for an Affray, tried at Fall Term, 1879, of JacicsoN Superior Court, before Graves, J. The defendant and one Monroe Hooper were indicted in the usual form for an affray, in mutually assaulting and beating each other, and there was evidence that the offence charged was committed more than six months before indictment found.

INDictment for a Misdemeanor, tried at Fall Term, 1879, of Hertford Superior Court, before Gudger, J. This was a motion to quash a bill of indictment.

Indictment for a Misdemeanor in failing to list property for taxes, tried at Fall Term, 1879, of Edgecombe Superior Court, before Avery, J. The defendants moved to quash, the bill of indictment for want of jurisdiction. The court allowed the motion and the solicitor for the state appealed.

CRIMINAL Action for failure to ivork on Public Road, commenced before a justice of the peace and heard on appeal at October Term, 1879, of New Hanover Criminal Court, before Meares, J. The opinion in this case as reported in 81 N. C., 588, was certified to the court below with directions for further proceedings, when on motion of defendant’s counsel the judgment was arrested upon the ground of a want of jurisdiction in the justice’s court where the action begun, and Moore,…

<p>IkdictmeNT for Larceny, tried at Fall Term, 1879, of Rutherford Superior Court, before Buxton, J.</p> <p>The special instructions asked for by the defendants on the trial were refused, and after a verdict of guilty they moved for a new trial and in arrest of judgment, both of which motions being overruled, the court pronounced judgment and the defendants appealed. The exceptions taken below are set out in the opinion of this court. The articles alleged to have been stolen were taken from the prosecutor’s store at various times during the months of August and September.</p>

<p>Larceny — Recent Possession — Judge’s Charge.</p> <p>1. The finding of stolen goods in possession of the accused a week or two after the theft does not raise a presumption of law against him, but is a circumstance for the jury to consider, the rule being that the evidence is stronger or weaker as the possession is more or less recent.</p> <p>2. Discussion of presumptions on “ recent possession ” by Ashe, J.</p>

<p>INDICTMENT for Larceny tried at October Term, 1879, of New Hanover Criminal Court, before Meares, J.</p> <p>The facts necessary to an understanding of the case are stated in the opinion. Verdict of guilty, judgment, appeal by the defendant.</p>

IndictmeNt for an Assault with intent to commit rape, tried at Fall Term, 1879, of Camden Superior Court, before Gudger, J. The bill contained one count wherein the defendant is 'charged with making a violent and felonious assault upon the person of the prosecutrix with intent, her then and there feloniously and against her will, to ravish and carnally know,and upon the trial under instructions from the court, was found guilty of an assault only.

Ikdictment for Larceny, tried at June Special Term, 1879, of Wake Superior Court, before Eure, J. The bill of indictment contained two counts, one for larceny and the other for receiving stolen goods. The jury returned a general verdict of guilty, and the defendant’s counsel moved in arrest of judgment on the ground that the. indictment contained two counts charging different offences with different punishments. The motion was overruled and the defendant appealed.

<p>Indictment for Misdemeanor, tried at Fall Term, 1879, of Sukby Superior Court, before Gilmer, J.</p> <p>The defendant, being clerk of the superior court of Surry county, was indicted for neglecting to open his office from the hour of nine o’clock a. m., until four o’clock p. m., on Monday, the 31st day of March, 1879. There was a verdict of guilty, judgment that defendant be fined fifty dollars, and he was further adjudged to have forfeited his said office, and was accordingly amoved. From which judgment the defendant appealed.</p>

<p> Transcript of Record on Appeal. </p> <p>Where on appeal the “transcript” sent to this court consists of a series of loose, disconnected papers, not amounting to a history of the cause as it was conducted in the court below, the case will be remanded for a more perfect record.</p>

<p>Trial — Comments of Counsel.</p> <p>Where an attorney abuses his privilege in addressing the jury and the. judge stops him and tells the jury in his charge that they must not be influenced by the objectionable language used, a new trial will not be granted.</p>

<p>Appeal from a judgment refusing to discharge the defendants, rendered at Pall Term, 1879, of Caldwell Superior Court, by Schenck, J.</p> <p>The defendants were tried and convicted at spring term, 1879, of said court upon an indictment for trespass upon the premises of one Harris, and on appeal to this court it was held that there was a variance between the allegation and proof, in that, the case showed that the premises on which the alleged trespass was committed were in possession of one Lewis. See same case 81 N. C., 550. Upon the certificate of the opinion being transmitted to the court below, the defendants moved their discharge. The solicitor resisted the motion and stated that in setting out the evidence in the case on the' former appeal, the name of “ Lewis” was inadvertently substituted for that of “Harris,” and upon another trial the state could prove the facts as alleged in the bill of indictment. The court refused to discharge the defendants, from which ruling they appealed. And in this court the state moved to dismiss the appeal.</p>