Volume 83 — North Carolina Reports

<p>Appeal — Requisites of Transcript.</p> <p>The appellate jurisdiction of this court being derived from that previously acquired in the court from which the cause is removed, no appeal will he entertained here, unless the transcript sent up shows the possession of that jurisdiction and that the cause was properly constituted! in the court below.</p>

<p>Civil Action tried at Fall Term, 1879, of Nash'Superior Court, before Eure, J. .</p> <p>The facts appear in the opinion. . Judgment for plaintiff, appeal by defendant, Moore. . __ .</p>

Civil AotioN, tried at Spring Term, 1880, of Greene Superior Court, before Avery, J. The opinion contains facts necessary to an understanding of the case. Judgment for the plaintiffs, appeal by the defendant.

MotioN of plaintiff for an order requiring the defendant bank to permit an inspection of its books containing evidence relating to the merits of the action, heard at Spring Term, 1880, of Chaven Superior Court, before Gudger, J. The court allowed the motion and the defendant appealed.

Civil ActioN tried at Spring Term, 1879, of Tyrrell Superior court, before Avery, J. The complaint alleges that the plaintiffs owned a certain steam saw-mill and fixtures, and demands judgment against defendant for damages for conversion of the same to his own use.

Motion to have entry of satisfaction made on an execution, heard at Spring Term, 1880, of Halifax Superior Court, before Gudger, J. The motion was refused and the defendants appealed.

<p>Civil Action upon a Guardian Bond, tried at Fall Term> 1879, of PasquotaNK Superior Court, before Gudger, J.</p> <p>The opinion states the case. Judgment in the court bfe-low for plaintiff, appeal by defendants.</p>

SUPPLEMENTAL PROCEEDINGS heard at Chambers in New-bern on the 31st of January, 1880, before Seymour, J. The following creditors of the defendants, Reuben H. Berry and John McGowan, partners trading under the name and style of Berry & McGowan, to-wit, James M. Corbin, Wilson, Palmer & Co., P. T. George & Co., and Henry Welsh, after due preliminary steps of executions issued and a return of “ unsatisfied ” by the sheriff, applied to His Honor, A. S. Seymour, the resident judge…

<p>Mortgage Sale of Personalty— Where made — Presence of Property.</p> <p>Where personal property of a ponderous nature (e. g. printing presses and stands) are conveyed by mortgage with a general power of sale, unrestricted as to the place of such sale, the purchaser of the property at an auction had in execution of the power, at the court house door, in about fifty yards of the place where the property is located and in use, (the same being accessible to all who might wish to inspect it) passes, a title which, if impeachable at all, can only be questioned by the mortgagor and those claiming under him, and cannot he controverted by a stranger.</p>

<p>Discontinuance — Reference—Notice—Exceptions—Attorney and Client — Appearance—Excusable Neglect.</p> <p>1.. Under our present practice, a failure to take a judgment by default as soon as the same is allowable does not work a discontinuance.</p> <p>2. A reference to hear and determine all matters in controversy, under C. C. P., §§ 240, 245, precedes any adjudication by the court of the liability of the parties.</p> <p>3. When a defendant has been brought into court by the service of process he is charged with notice of whatever action the court may take while the suit is pending.</p> <p>4. Exceptions to a referee’s report biay be filed at the term to which it is made.</p> <p>5. If an .attorney appear, and judgment be entered against his client, . the court will not set it aside, though the attorney had no warrant, if he be solvent and able to respond in damages for his officiousness.</p> <p>6. Where a defendant has been served with a summons, but neglects to employ counsel to represent him in the action, remains away from the place of trial, and contents himself with such information as to the progress of the cause as he can get by corresponde'nce with persons under no legal obligation to furnish the requisite intelligence, he is not entitled to have a final judgment in the cause set aside under C. C. P., § 133, as having resulted from excusable neglect.</p>

Motion under section 133 of the Code to set aside a judgment, heard at Spring Term, 1880, of Perquimans Superior Court, before Graves, J. The facts in the case are sufficiently stated by Mr. Justice Dillard in delivering the opinion of 'this court. The feme defendant, Mrs. Jordan, appealed from the judgment below.

MotioN to vacate a judgment under the Code, § 133, beard at Spring Term, 1880, of Perquimans Superior Court, before Graves, J. The court allowed the motion, and the plaintiff-appealed. See preceding case.

<p>Civil Action to recover Land, tried at January Special Term, 1880, of Jones Superior Court, before Eure, J.</p> <p>This was an action to recover real estate upon a claim of title by the plaintiff as a purchaser under a decree of foreclosure of a mortgage executed by J. C. B. Koonce, deceased, against the defendant, Eleanor Koonce, widow of the mortgagor, and her co-defendants, being such of the children and heirs at law as were on the land at the institution of the suit, leaving other children of the mortgagor not joined as parties. At the trial term a jury was waived, and the trial was had by the judge. Upon the record of the foreclosure suit, under which plaintiff claimed, it was found as a fact that the heirs at law of the deceased mortgagor had not been made parties to that action; and thereupon the plaintiff, to obviate the apparent necessity that they should have been parties as taking by descent the equity of redemption, offered evidence tending to show that the equity of redemption had been divested out of the mortgagor by a sale of the same in his life time under execution, but the court ruled the evidence insufficient to authorize that fact to be found.</p> <p>Upon these facts, the court adjudged that the equity of redemption at the death of Koonce, the- mortgagor, descended to his heirs at law, and that they had not been made parties to the foreclosure proceedings, and that by reason of the non-joinder of said heirs, the decree of sale and deed to plaintiff were ineffectual to pass the title to him. From' that judgment the cause came by appeal to this court, and at June term, 1879, the judgment of the court below was reversed and a new trial granted upon reasons set forth in the opinion as reported in 81 N. C., 378. On the going down of the certificate from this court,-the plaintiff moved for judgment and a writ of. possession on the facts as formerly found by the judge.</p> <p>The court being of opinion that the cause stood for a trial de novo overruled plaintiff’s motion for judgment and execution, and allowed new parties to be made with leave to file answers, and continued the case until the next term, and from this ruling the present appeal is taken.</p>

<p>Civil Action to recover land, tried at Spring Term, 1879, of Halifax Superior Court, before Eure, J.</p> <p>Case Agreed : In the year 1812, the legislature granted a charter to the Roanoke navigation company, under an act entitled “ an act for improving the navigation of Roanoke river from the town of Halifax to the Virginia line,” and a company was duly organized thereunder at a meeting of the stockholders held in the town of Halifax on the fourth Monday of October, 1815; the proceedings of which meeting were ratified by the legislature at its session of 1816. And said corporation has since fully performed and complied with the provisions of its charter and the acts amendatory thereof. On the 23d of October, 1818, a tract of land belonging to the heirs of Daniel Weldon, deceased, (of which the land in dispute is a part) was condemned under the provisions of said charter, and an act subsequently passed (1817). Said land was necessary for the purposes of the company, was then paid for and entered, and has ever since been in possession of said company; The locus in quo (which is particularly described in the case) is occupied by the defendant; under a lease from said company. In 1878, judgments were recovered against the company in favor of certain persons, executions issued thereon, and at the sheriff’s sale in 1879, the plaintiff became the purchaser. Under the act of 1874-75, ch. 198, an action was instituted in Halifax superior court (and is now pending) for the dissolution of the company, appointment of a receiver, &c. If upon these facts the court shall be of opinion that the plaintiff is entitled to recover, then judgment shall be rendered in his favor for. the possession of the land and for costs; but if otherwise, then a judgment of nonsuit shall be entered. The court adjudged in favor of plaintiff and ordered a writ of possession to issue, and the defendant appealed.</p>

<p>MotioN to issue execution under C. C. P., § 256, heard, on appeal from an order of the Clerk, at Spring Term, 1880, of Pasquotank Superior Court, before Graves, J.</p> <p>The judge reversed the order of the clerk, and held that plaintiffs are not entitled to have execution issued upon the judgments, and the plaintiffs appeal.</p>

Summary Proceeding in Ejectment, instituted before a justice of the peace, and tried on appeal at Spring Term, 1880, of Halifax Superior Court, before Qudger, J. The plaintiff claimed to have leased the land in question to the defendant on the first of January, 1879, for a term ending on the 31st of December of ’that year, and alleged that defendant had refused to surrender possession after the expiration of said term.

Claim and Delivery, tried at Spring Term, 1878, of Pitt Superior Court, before Henry, J. The defendant, to secure certain debts due the plaintiffs and to obtain supplies for carrying on his farming operations'for that year, on May 26, 1876, executed to them a mortgage deed conveying a mule and other articles of personal property, “ and a lien upon each and every of the said crops to be cultivated and made upon the said land or farm during the present year, with full power to…

Civil ActioN for Claim and Delivery, tried at Fall Term, 1879, of Cumberland Superior Court, before Seymour,. J. The opinion states the facts. The matter in controversy was, whether the mortgage had- been discharged. Yerdict and judgment for defendants, appeal by plaintiffs.

<p>Complaint — Conversion—Jurisdiction—Practice—Evidence— Marshalling — Agricultural Supplies — Estoppel.</p> <p>1. A complaint for converting a mortgaged crop which avers title to such crop raised by the mortgagor and by him conveyed to the plaintiff, its delivery to the defendant, its value, and its appropriation by the defendant to his own use after demand by the plaintiff, is a concise and definite statement of every material fact upon which the right to recover depends,.and complies with section-93 of the code.</p> <p>2. An action for damages for converting a crop, of greater value than fifty dollars, is not founded on an implied contract, and hence is not within the cognizance of a justice’s court.</p> <p>3. Exceptions will not be heard in this court, alleging a defect of evidence on points not in issue in the court below. •</p> <p>4. In this action to determine the ownership of the cotton, it is not competent for the court to adj.ust the equities between the parties growing out of the'faet that the plaintiff has also a mortgage on the land which produced the cotton..</p> <p>5. One who gives a mortgage on a crop to obtain supplies, under the provisions of Bat..Rev., ch.. 65, §19, is estopped from asserting that articles which he receives as a compliance with the contract are not “supplies” within the meaning of the statute; and a second mortgagee who acquires an interest in the crop after such advances are made, stands in no better plight, and is likewise bound by such admission.</p>

<p>Civil Action, tried on appeal from a justice of the peace, at Spring Term, 1S78, of Pitt Superior Court, before Henry, J.</p> <p>Jeptha Walston left a last will and testament wherein after devising and bequeathing lands and personal property to his two sons, Joseph A. Walston and John J. Walston, he devised and bequeathed his home tract of land, containing four hundred and forty acres, and all the residue of his estate, not given to others, to his three daughters, Martha, Amauda and Della, chaiging the personalty (within the' residuary gift) with the debts of the testator, with a pecuniary legacy of five hundred dollars to a son of his wife by a former husband, and with a legacy of one thousand dollars to his wife. And among the clauses of the will material to the decision of the question presented on the appeal, are the following:</p> <p>“I give and devise to my three daughters (above named) their heirs and assigns forever, the tract of land on which I now reside in Pitt county, containing four hundred and forty acres, more or less. The residue of my property and estate of every description after paying my debts, funeral expenses, and settling my estate, the bequest of five hundred dollars to my step-son, Charles Taylor, and one thousand dollars to my wife, as secured to her by a written agreement entered into between us before our intermarriage, I give and bequeath unto my said three daughters, their executors and administrators.</p> <p>“ It is my will and desire, and I do hereby direct, that the land and other property and estate herein devised and bequeathed to my three daughters, be kept in common and not divided between them until the youngest one of them shall attain the age of twenty-one years; that until then, they may be permitted to reside on the land and be supported and educated out of the annual income which may arise from the sale of the surplus crops made on the land under the management and direction of their guardians hereinafter appointed, provided however, that in case either of my daughters should marry before the time arrives for the division to be made, she shall not be permitted to live on the land after such marriage, but shall be entitled to receive annually one-third of the income arising from the land, to be ascertained by deducting from the gross sales of surplus crops the expenses incurred in producing the crops, and the expenses incurred in the support and education of the unmarried daughters. And for the purpose of enabling the guardians to carry on the farm-property, I hereby authorize and empower them from time'to time to purchase farming implements, teams, and such other things as may be necessary for that purpose, and to employ laborers by paying them wages in money or a portion of the crops as they, the guardians, may deem best for the interest of my daughters.”</p> <p>. The testator appointed his brother, W. Walston, and his son, J. J. Walston, executors of his will, and the same per•sons guardians of the person and property of his three daughters. Both of the executors are dead, (of whom J. J. Walston was the survivor,) and thereupon Joseph A. Wals-ton was appointed administrator d. b. n. of Jeptha Walston, and B. W. Brown became administrator of J. J. Walston, and J. R. Thigpen qualified as guardian of Della, all of ■whom are parties defendant, the other two daughters, Martha and Amanda, having sold and assigned all their interest under the will to J. J. Walston, one of the guardians.</p> <p>The claim of the plaintiff is for work and labor done on the lands devised to the three daughters and advances in money to J. J. Walston, and the account sued on is charged to J. J. Walston as executor of Jeptha Walston. And it is stated in the case of appeal that the services and money sought to be recovered were rendered and advanced when J. J. Walston was living on the land with his ward, Della, and after the death of his co-guardian, and after the purchase of the shares of the other two daughters.</p> <p>The question presented for decision in the court below, and for review in this court on appeal, is on whom the liability rests for the plaintiff’s claim ? .whether on the estate of Jeptha Walston, or on the estate of J. J. Walston, during whose guardianship the debt was contracted, or on the estate of Della, the ward, in the hands of J. R. Thigpen, her present guardian ?</p> <p>The court below held that the liability was on the administrator d. b. n. of Jeptha Walston, and the appeal by him presents the question of the legal accuracy of that judgment.</p>

<p>Civil Action tried at Spring Term, 1880, of Pitt Superior Court, before Avery, J.</p> <p>This action was brought by the plaintiff as executor of Benjamin Pollard to obtain a construction of the last will and testament of his testator. The facts are set out in the opinion. The plaintiff appealed from the ruling of the-court below.</p>

Motion to vacate an oi’der of arrest and discharge the defendant from custody, heard at Spring Term, 1880, of Nokthampton Superior Court, before Qudger, J. The plaintiff in the year 1878 brought an action in the superior court of Northampton county upon the official bond of one Larkins, sheriff of the county of Halifax, against the defendants, his sureties on said bond.

<p>. Petition for Certiorari, heard at June Term, 1880, of The Supreme Court.</p>

<p>Civil Action to recover Land, tried at Fall Term, 1879, of Craven Superior Court, before Avery, J.</p> <p>The case was heard upon issues of law raised by demurrer to the complaint. Demurrer overruled, judgment for plaintiff,.appeal by defendant.</p>

MotioN by defendants to dissolve an injunction, heard at Chambers on the first day of April, 1880, before Eure, J. The action in which this motion was made is pending in the superior court of Cumberland county. The motion was. granted and the plaintiffs appealed.

' Civil Action to recover land tried at Spring Term, 1880, of Polk Superior Court, before McKoy, J. The plaintiff claimed title to the land under a deed made by the sheriff of Polk county,'by virtue of a sale had by him under an execution issued from the superior court of-Rutherford county, on a judgment rendered in that court in the year 1869, in an action commenced in 1867, in behalf of the present plaintiff against' E. D. Taylor, a resident of Polk county, and others, at…

Motion to set aside a judgment and order of sale, heard at January Special Term, 1880, of Sampson Superior Court, before Gilmer, J. The plaintiff filed his petition in the court of pleas and quarter sessions of Sampson county at November term, 1866, for a license to sell the land described in the petition to pay the debts of his intestate; and on this petition a summons was issued returnable to May term, 1867, against John Vann, styled agent of Mary Boney, and against'the…

. Claim and Delivery, tried at Fall Term, 1879, of Nash Superior Court, before Eure, J. The plaintiffs claimed a portable steam engine, grist and saw mill, and tire appurtenances thereto, which were located on the land of W. D. Harrison, in the county of Nash, and conveyed to them by Charles W. Smith of Pitt county, in the manner described in the opinion of this court. .

<p>Civil Action removed from Cleaveland and tried at Pall Term, 1879, of Lincoln Superior Court, before Buxton, J.</p> <p>The plaintiff alleges that the Wilmington, Charlotte and Rutherford railroad company (now the Carolina Central) by the unskilful construction of a trestle and falling in of a culvert across Muddy Fork creek, just below his lands situate on both sides of the' creek, caused an obstruction to the natural flow of the water in said creek, whereby it was thrown back and ponded on his land, and the -same was rendered unfit for cultivation; that defendant company thereafter, to wit, in April, 1873, became the owner of said railroad with all its rights, property and privileges, and as such have maintained and allowed to exist ever since their purchase the same trestle and obstruction in said creek and thereby continued the injury to plaintiff’s land.</p> <p>The action is brought to recover damages for injury to plaintiff’s land from overflow and absorption occasioned by the said obstruction allowed by defendants to continue in the, creek since their purchase, and for abatement of the nuisance. At the trial, it was admitted that the ownership of defendant company began in 1873, and that their said road was duly placed in the hands of the defendants, Grainger, Stout and Porter, as receivers, on the first day of April, 1876, by a decree of the superior court of New Hanover county, under whose control and management .the same, has ever since been, and is now. Upon issues submitted to the jury, it was found that the trestle and fallen culvert were an obstruction to the natural, flow of the water when the defendant company bought the road, and had continued to be and remain ever since, and that thereby'the plaintiff sustained an annual damage of twenty-five dollars.</p> <p>Upon the admission of the parties and facts found by the jury as above, the court adjudged that, plaintiff recover damages for three years next before the ;institution of his-suit, to wit, the sum of seventy-five dollars, but refused the motion for the further judgment of abatement of the nuisance, and from such refusal the plaintiff appealed.</p>

<p>Rule upon a witness to show cause why he should not be attached for contempt in refusing to answer certain questions, heard at January Special Term, 1880, of Wake Superior Court, before Avery, J.</p> <p>This was a proceeding supplementary to execution, and on the 10th. of April, 1878, an order was made by the judge of the superior court, requiring George W. Blacknall, the treasurer and managing agent of the defendant association, to appear before a referee who was appointed to take and certify the examination of said Blacknall and such other witnesses as may be brought before him, to make discovery concerning the property and effects of the defendant. And it was further ordered that the referee be vested with such powers in the conduct of the examination as are conferred upon him by law. After due notice, the said Blacknall appeared before the referee, and was sworn and examined as a .witness. He declined to answer the .questions set out in the opinion of this court, and for the reasons therein stated. The referee ruled that the questions (except one) were proper, but that he had no power to compel the witness to answer and certified the same to the court to the end that the witness may be dealt with touching his refusal to answer. And upon motion before Eure, J, at June term, 1879, the witness was ordered to show cause why he should not be attached for contempt. In answer to the rule, the witness stated in his affidavit, in substance, that his refusal to answer was based solely on the ground of his- privilege as a witness that is, that he could not be compelled to give evidence which might tend to self-crimination. The hearing of. the matters set forth in the answer to the rule was continued until January term, 1880, when the plaintiff’s counsel moved to make the rule absolute and declare the witness in contempt. His Honor held that the witness should be compelled to answer the question in reference to the possession of the books of the defendant association, .an.d how he had disposed of the same, and also that he should answer question No. 8, in reference to the existence of any assets of the association, and that he was not compelled to answer the other questions. The referee was ordered to proceed with the examination, and the witness to appear on Wednesday of the next term and show that he had obeyed the order of the court, or show cause why he should not be attached for contempt. From this ruling the plaintiff appealed.</p>

<p>Motion to amend a record heard at Fall Term, 1879, of RICHMOND Superior Court, before Seymour, J.</p> <p>In this action, which was founded on the bond of James A. Covington as administrator of J. P. Covington and Ann C. Leak as executor of John W. Leak, a surety thereto, to recover the distributive shares of the next of kin, a report of the account of the administration showing assets for distribution to the sum of $5,453.69 was made to the court, and being confirmed,-judgment was entered therefor instead of for the penalty of the bond to be discharged on the payment, thereof. And more than twelve months after the rendition of the judgment aforesaid, in pursuance of notice from defendant, a motion was made in the cause to amend the entry of judgment on the record so as to make it a formal one for the penalty of the administration bond to be discharged •upon the payment of the amount due. The motion was resisted by the plaintiffs, and the judge having drawn up and ordered it to be entered as the judgment that was intended to have been entered, an appeal' is taken to this-court.</p>

Petition for removal of a cause to the cireuifecourt of the United States, heard- at Spring Term, 1880, of. Bertie Superior Court, before Cadger, J. The motion was refused, and the defendant appealed.

<p>Married Woman — Poiver of Attorney — Registration.</p> <p>A power of attorney, given by a married woman to dismiss an action concerning her land, need not be registered to give it validity.</p>

Civil ActioN to recover Land, tried at Spring Term, 1880, of Currituck Superior Court, before Graves, J. The case was submitted to the judge upon the following facts agreed : Silas Powers, being the owner of the land in dispute, in 1850 married the plaintiff and died in 1862. He was the illegitimate son of Nancy Powers, who died before the said Silas.

<p>Civil ActioN for Damages, tried at Spring Term, 1880, of Edgecombe Superior Court, before Gudger, J.</p> <p>Judgment for defendant, appeal by plaintiff.</p>

Civil AotioN of elaim and delivery, begun before a justice of the peace and tried on appeal at Spring Term, 1880, of Surr.y Superior Court, before Bwzíon, J. A jury trial was waived by the parties and by consent the case was tried by His Honor upon the following state of facts: The intestate of the defendant. was a practising attorney in the county of Surry and sent to the plaintiff a letter as follows, to-wit: Oct. 25th, 1877. Mount .Airy, N. 0.

Motion in the Cause, .heard at Spring Term, 1880, of GraNVILLe Superior Court, before Seymour, J. At the .commencement of his action, the plaintiff sued out a writ of attachment against the estate of the defendant, who had removed from the state and was then residing in Virginia, and it wa.s levied on November 8th, 1875, upon certain real estate in Granville.

Special Pboceeding for Partition of -Land heard on appeal at January Special Term, 1880, of Sampson Superior Court, before Gilmer, J. The plaintiff alleged that he and defendant are tenants in common of the land, and the defendant sets up sole seizin and title in himself. Upon the facts stated in the opinion of this court, the judge below gáve judgment for the plaintiff, and ordered a procedendo to issue to the probate .court, and the defendant appealed.

Special Proceeding for the settlement of an estate, commenced in the probate court and heard on exceptions to a-report, at Fall Term, 1879, of Moore Superior Court, before-.Seymour, J. The defendants appealed from the ruling and-judgment, of the court below.

<p>Co-Sureties — Action for Contribution — Notice.</p> <p>1. In an action by a surety of an insolvent guardian for contribution against other sureties, it is proper to include in the sum adjudged to he raised by contribution costs which were paid by plaintiff in an action against iiim as a condition for leave to plead the statute of limitations.</p> <p>2. It is not necessary to entitle a surety to maintain an action for contribution that the amount of his liability which was paid by him should be fixed by a judgment.</p> <p>3. The waiver or withdrawal of á plea of the statute of limitations by a surety in an action agáinst him does not affect his right afterwards to maintain an action for contribution.</p> <p>4. In an action for contribution by a surety against four different guardian bonds, with different penalties and different sureties, some solvent and some otherwise, it is not necessary that notice should be given before the action is brought.</p>

<p>Construction of Will — “Capital”—Evidence—Declaration of Testator — Agreement of Partnership.</p> <p>1. A testator by his will devised as follows: “I give unto my beloved wife A, all the household and kitchen furniture, c%c.. with all the growing crops on the farm, &c.; also one-third part of my entire interest in my capital invested in the firm of C. SI. & G. Lines (except my interest in the buildings and machinery used and occupied as store and shoe manufactory) to have and to hold as her own property in her own right. I also give unto my beloved wife A during her natural life the use of the dwelling-house and lot where I now live, * * * and also the use of the Dodson farm with its minerals, &c., during her natural life. 1 also give unto C one hundred dollars and to M fifty dollars ; the above bequests to be taken out of my capital invested in the firm of O. M. & G. L.; the residue of my capital invested in the firm, after paying my individual debts and funeral expenses, I give one-third to my daughter H, one-third to the children of my deceased son C, and one-third to the daughter of my deceased son R. I also give to the daughter of my deceased son R, the twenty-four acre lot bought of T, * * * . At tiie deatli of my beloved wife A, I desire and will that the Dodson farm be sold and equally divided between the children of my deceased sons C and R. All the residue of my property * * * I give unto my daughter H, subject to the use of the dwelling-house and lot to my beloved wife A, during her natural life : It was held,</p> <p>(1.) That the accumulated earnings of the firm of C SI. & G. L. which remained invested in its business equally with the sums originally put in constitute its capital, and the widow is entitled to one-third part of the aggregate amount to which the testator would be entitled upon a settlement.</p> <p>(2 ) That the legacies to C and SI must be taken from the remaining two-thirds of the capital.</p> <p>(3.) That a certain sum of money found in a drawer in the safe belonging to the firm, (the key to which drawer the testator kept) and which corresponded in amount precisely with the sum charged against him in his cash book, and which was found by the court below to be the property of the firm, must be deemed part of the assets of the firm and of the capital disposed of in the will.</p> <p>(4.) That the growing crop on the Dodson farm belongs to the widow.</p> <p>(5.) That the growing crop on the twenty-four acre lot does not belong to the daughter of .B, but vests in the executor.</p> <p>(6.) That the money arising from the sale of the Dodson farm after the death of the widow must be divided among the children of C and K per capita.</p> <p>(7.) That the machinery in the shoe manufactory as well as the bnild-.ings belonging to the firm'are embraced in the words “ the residue of my capital invested &o.,” and after the deduction of debts and funeral expenses are devised in three equal parts to the testator’s daughter H, the children of C and the daughter of B.</p> <p>2. A memorandum of a declaration, made by a testator intermediate between the making of his will and his death, is not admissible in evidence to show an intent different from that expressed in the will.</p> <p>3. A tacit understanding among partners contravening the agreement (which then subsisted) on which the firm was formed is not admissible in evidence to modify and impeach its terms.</p>

<p>Appeal from an order vacating an injunction made on the 18th of February, 1880, at Chambers (in an action brought to Spring Term, 1880 of Caldwell Superior Court) by Avery, J.</p> <p>James Mobley of Fairfield district in South Carolina died in 1852 intestate, leaving him surviving Elizabeth Mobley, his widow and nin.e children, of -whom the feme-plaintiff, then an infant of tender age was one, and seized of a comfortable real and personal estate of which the widow and S. F. Mobley, one of the sons, became administratrix and administrator, and in' a short time they paid off the debts of the estate and settled their final account,-showing a share to the plaintiff in the net surplus for distribution of twelve' hundred dollars.</p> <p>On the 31st of December, 1855, the said widow of intestate aiid mother of plaintiff, became guardian to her and the other children under age, and from aud after that time, she had and held in her hands as such guardian the said sum of twelve hundred dollars, together with four hundred' dollars received as her share of the proceeds from the sale of the lands descended from her father.</p> <p>Upon the marriage of plaintiff, her mother at her request purchased in 1875 the tract of land in the pleadings mentioned at two thousand dollars, situate in Caldwell county of this state, and afterwards, it is alleged, she conveyed the same to the feme-plaintiff, in payment of her indebtedness to her as her late guardian, then and ever since having other property of value sufficient and available to pay all her debts.</p> <p>It is further alleged by the plaintiffs that the defendant, having a debt against the said Elizabeth Mobley, has recovered judgment and now threatens to sell and will sell the tract conveyed to her prior to the rendition of the said judgment, and that if he be allowed to sell it will greatly embarrass the feme-plaintiff, cast a cloud upon her title and do her an irreparable injury, and the relief demanded is an injunction to prevent defendant from selling the said land until he shall have established that the same is liable to the debts of Elizabeth Mobley.</p> <p>Upon the application of the plaintiffs, on the foregoing facts, a temporary injunction with an order to show cause was granted till a day named, with restraint in the meantime ; and at the time appointed, defendant appeared and for cause alleged that his debt was contracted with Elizabeth Mobley before the conveyance of the land to her daughter and on the credit thereof, that said conveyance was founded on voluntary consideration and not in payment of any debt to plaintiff as her late ward and was void as being executed with intent to hinder, delay and defraud her creditors, and he denied that Elizabeth Mobley retained then, or has now, sufficient property liable in law to pay his debt.</p> <p>On consideration of the cause shown by defendant, and the affidavits on both sides in support of their respective allegations, sent up with the case of appeal, His Honor without any finding of facts vacated the injunction and from that order the plaintiffs appeal.'</p>

<p>Civil ActioN to recover Land, tried at July Special Term, 1879, of.Randolph Superior Court, before Avery, J.</p> <p>The plaintiffs appealed from the judgment of the court below.</p>

<p>Payment— Usury — Pleading.</p> <p>1. Payment is an act £>f volition, requiring the assent of both debtor and creditor, and henee, the transfer cff money by the former to the latter, under a contract for usurious interest, cannot be treated by the.eourts as a payment on the principal debt; when it was not so intended by the parties at the time.</p> <p>2. Under the acts of 1874-’7o,-eh. 82, the payer of usurious interest may recover the same in an action for' money had and received to his use, or by way of counter-claim when action is brought for the balance due on the usurious contract.</p> <p>•3. Where the payee- of a note which is good as it originated makes a special contract for a usurious rate afterwards, to forbear enforcing payment, it is the special contract of forbearance which' is usurious, while the original note remains untainted.</p>

<p>Special Proceeding in the nature of a creditor’s bill commenced before the clerk, and heard on appeal at Spring Term, 1880, of Wayne Superior Court, before Avery, J.</p> <p>The opinion contains the facts. The plaintiff appealed from the judgment of the court below.</p>

<p>Covenant not to Sue — Equitable Release.</p> <p>Where a creditor receives from one of a number of joint and several debtors, by successive guardian bonds, a sum considerably less than tile aggregate amount due from all sudh debtors, and gives him an instrument under seal releasing all claims against him or his representatives and covenanting to execute any and all instruments which may be necessary to relieve the party making such payment from all liability to the other joint debtors, such instrument will have the effect of an equitable release to the other debtors of all in excess of -their aliquot portion of the joint indebtedness.</p>

<p>Civil ActioN, commenced in Randolph and removed to and tried at Spring Term, 1880, of Guilford Superior Court,, before Seymour, J. ....</p> <p>Verdict and judgment for defendants, appeal by plaintiff company.</p>

Application of the Sheriff for instructions as to application of funds, heard at Spring Term, 1880, of Pitt Superior Court, before Avery, J. This is an application by the sheriff of Pitt county to the judge of the superior court of that county for advice as to the disposition of a sum of three hundred and twenty-six dollars raised by him as sheriff of said county from the sale of the land of Robert Highsmith under executions issued to him, and which were in his hands and by…

<p>Civil ActioN upon a guardian bond tried at Spring Term, 1880, of Pitt Superior Court, before Avei'y, J. ■</p> <p>Alfred Turnage, the former Guardian of Neta Turnage, and having funds in his hands belonging to the infant, died intestate on the 25th of June, 1879, and shortly thereafter the defendant, W. A. Darden, was appointed his administrator. Some time early in August following, the relator, Alfred May, was appointed guardian to said infant, and on the 21st of the same month brought the present action against the defendant as administrator and the others, sureties on the guardian bond, to recover the ward’s estate, claiming to be due on the returns of January 5th, 1879, the sum of nine hundred and seventy dollars and seventy-six cents and interest thereon since, The. defendant answers admitting the indebtedness alleged, assenting to the recovery of judgment for that sum, and insisting that the action was prematurely and unnecessarily brought. There was an order of reference, and the referee in his report finds due to the ward on January 1st, 1880, nine hundred and ninety-nine dollars and eighty-one cents with compound interest thereon from that date. The defendant Darden excepted to so much of the report as charged his intestate’s estate with the payment of the costs of suit, in which is included the allowance for the report. The court overruled the exception and gave judgment for the penalty of the bond to be discharged by the payment of the sum reported by the referee, and that the costs be paid out of the assets of the intestate, if any, in the hands of his administrator, from which judgment the defendant appealed.</p>

Motion to remove a cause heard at Spring Term, 1880, of Cabarrus Superior Court, before McKoy, J. This motion was made in a civil action pending in said court.

<p>Corporate Seal — Mortgagor and Mortgagee.'</p> <p>1. It seems that a corporation may adopt 'and make effectual as its-seal the individual seals of its officers affixed to a deed of the corporation when it has no seal of its own,</p> <p>2. A second mortgagee has no right to buy the estate of his mortgagor at a sale to satisfy a prior incumbrance, but he lias a clear equity to be reimbursed for any expenditure, to relieve the estate of any incum-brances, and the property in tifs hands is charged therewith in preference to the trusts expressed in the mortgage deed.</p> <p>3. Where a sale of mortgaged property is acquiesced in at the time by the mortgagoiv.he cannot afterwards recall such assent and contest the</p> <p>. title of the vendee, either on the ground that the mortgage was invalid or that the particular purchaser liad no right to buy.</p>

Civil ActioN tried at Spring Term, 1880, of Buncombe Superior Court, before Schenck, J. There were three actions pending between the parties on appeal from judgments rendered by a justice of the peace. By consent of parties, they were consolidated-and pleadings filed. The plaintiffs’ counsel moved to strike out the answer as frivolous and irrelevant and for judgment. The court overruled the motion and the plaintiffs appealed.

<p>Civil Action tried at Spring Term, 1880, of Cabarrus Superior Court, before McKoy, J.</p> <p>Judgment for plaintiff, appeal by defendant.</p>

<p>' Civil Actioii tried at Spring Term, 1880, of Forsyth Superior Court, before Buxton, J.</p> <p>‘Verdict and judgment for plantiffs, Hanes & Brown; appeal by defendant.</p>

Motion to vacate an order of attachment heard at Spring Term, 1880, of Henderson Superior Court, before Schenclc, J. The action in which this motion is made was instituted by the plaintiff to recover damages for an alleged breach of promise to marry. .It appearing by'affidavit that. the.defendant is a non-resident and has property in this state, and that a good cause of action exists against him, the clerk -of the. court, granted on order of attachment, and thereupon the…

<p>Amendment of Court Record — Appeal.</p> <p>1. It is not only the right hut the duty of the court to so correct and amend its records as to make them a true and perfect transcript of whatever occurred that belongs to the record, and the rule is not varied by the fact that the record when corrected will not then avail the purposes of the party moving the amendment.</p> <p>2. The refusal to amend a court record is not the subject of review on appeal, unless based upon an adjudged want of power, and in such pases, as the discretion has not been exercised, the matter will be remanded in order that it may be.</p>

<p>Separate Estate of Married Woman — Courier-claim—>Evidence.</p> <p>1. Where personal property, the separate estate of a married woman, is sold under execution for a debt of the husband, the purchaser, when sued by the husband after the wife’s death, as her administrator, fob ■converting the property by means of such sale, cannot set up as a counter-claim under Bat, Rev,, cl). 44, § 26, his claim to be reimbursed the amount of his bid at such execution sale.</p> <p>2. In an action for such conversion the declarations of the deceased wife relative to the ownership of th‘e‘ property, as apart of and coupled with • the acts of ownership exercised by her, are admissible in response to an imputation in the answer that she had surrendered such ownership to the husband.</p>

Civil Action tried at Spring Term, 1880, of Mecklen-burg- Superior Court, before McKoy, J. The case was beard upon complaint and demurrer. The judge overruled the demurrer, and the defendant appealed.

' Civil Action tried at Spring Term, 1880, of Buncombe Superior Court, before Schenck, J. The action was brought upon a single bill of which the following is a copy : Raleigh, N. C., January 31st, 1876 $500 — Ninety days after date, with interest from date, we, H. G. Candler principal, and J. L. Henry surety, promise to pay C. H. Brogden or order five hundred dollars, value .received in borrowed money.

Civil Action tried at Spring Term, 1880, of Davidson Superior Court, before Buxton, J. The action was brought upon a single bill which was as follows: $450. Lexington, N. C., April 25th, 1876. One day after date we promise to pay to the order of T. S. Welfare the sum of four hundred and fifty dollars without defalcation, value received at eight per cent, per annum.

Civil Action for Divorce tried at Spring Term, 1880, of Edgecombe Superior Court, before Oudger-, J. This is an action for a dissolution of the bonds of matrimony upon the allegation of the'defendant’s adultery. The issues were drawn and submitted to the jury who find them all in favor of the plaintiff.

<p>Estoppel — Notice.</p> <p>1. Acts posterior to a sale, such as the payment of rent to the purchaser by one who claims that he owned certain land at the time it was sold to pay the debts of a third person, cannot be received in evidence to estop such claimant from asserting his title against the purchaser.</p> <p>2. While it is a general rule that possession of land is notice to the world of all equities in favor of the occupant, this rule does not extend to the possession of a slave prior to 1868, who bought and paid for land and had the legal title conveyed to the white owner of his wife who made her home on such land.</p>

Civil Action tried at Spring .Term, 1880, of Henderson Superior Court, before Schenck, J. This action was begun before a justice of the peace upon a single bill dated the 27th of July, 1866, and payable six months after date, with interest from date.

Civil. Action tried at Spring Term, 1880, of Granville Superior Court/ before Seymour, J. This is an action commenced before a justice of the peace on a bond executed by the defendant to D. S. Wilkerson aiid son, for the sum of one hundred and fifty-seven dollars, payable on demand'with interest from date, and dated the. '20th day of September, 1859.

Civil Action tried at Spring Term, 1880, of Craven Superior Court, before Gudger, J. This action was begun before a justice of the peace in the county of Craven, The plantiff complained that the defendant Palmer was indebted to him in the sum of fifty dollars, and that he held a mortgage on one bay horse and a wagon then in the possession of the defendant, executed by the defendant to one Eli H. T. Perry as collateral security for the payment of said debt) that said debt was…

Civil. Actiok tried at Spring Term, 1880, of Davidson : Superior Court, before Buxton, J. The facts appear in the opinion. The plaintiff appealed .from theijudgment of the court below.

<p>Petition for a Certiorari heard at June "Term, 1880, of The Supreme Court.</p>

<p>Division of Land — Compensation for Deficiency.</p> <p>1. A testator directed that his land (more than 1,000 acres) should be divided equally amono- his children, by three disinterested men, to be chosen by his executors to make such allotment. In the division a mistake occurred, whereby one of the children received about forty acres less than her proper share. The parties went into possession of their respective portions, several conveyances among- the children were made of the lots falling- to their share, and one of them had contracted in writing- to convey to a stranger. Valuable improvements had also been placed on several of the lots, under the supposition that .the division was fair and regular ;</p> <p>Held, that the party receiving-'less than her full share was not entitled, upon discovering the deficiency, to demand a re-allotment of the land, but must content herself with pecuniary compensation for her loss.</p>

Civil Action, tried at Spring Term, 1880, of Wilson Superior Court, before Avery*, j. The ease was submitted to the court upon the following facts agreed : On December 11th, 1877, one W. H. Bishop executed to Mollie Bardin a note under seal and a paper writing purporting tobe a mortgage to secure the same, which are as follows: $125. On demand Nov. 1st, 1878,1 promise to pay Mollie R. Bardin or order one hundred and twenty-five dollars for value received for one bay horse.

<p>Civib Action to recover laud, tried at Fall Term, 1879,. of Surry Superior Court, before Gilmer, J.</p> <p>Verdict and judgment for defendant, appeal by plaintiff.</p>

MotioN to vacate an injunction beard at Fall Term, 187&, of Macon Superior Court, before Graves, J. The material facts are that in August, 1875, D. C. Cunningham, the husband of plaintiff, as agent for her, purchased of defendant a house and lot in the town of Franklin, Macon county, at the price of twelve hundred dollars, payable in six equal annual instalments, it being left to the husband to manage the trade and have the title secured to her, as her sole and separate…

<p>Civil Action tried at Spring Term, 1880, of Chatham Superior Court, before Seymour,. J.</p> <p>In this action, decided against the plaintiff in a justice’s-court, an appeal was taken to the superior court, and on the hearing, the parties having waived a jury and consented to a trial of all issues of law and fact by the court, His Honor found the facts and the conclusions of law thereon as foL lows:</p> <p>1. That the bond declared on is the bond of the defendant’s testator and is for the sum of $173-.20, bearing interest from the 11th of November 1862.</p> <p>2. That the sum pleaded as a set-off or counter-claim by defendant is based on a judgment recovered by one A. H. Merritt against John S. McOlenahan and the present plaintiff at May term 1870 for $201, with interest from the 11th of February 1860, and $23.95 costs.</p> <p>3. That execution was issued on said judgment soon after its rendition and returned, nothing, to be found to satisfy said execution over the homestead, and that no other execution was issued thereon.</p> <p>4. That said Merritt assigned the said judgment on the docket of the court in 1878 to the defendant, on whose motion, after notice, the judgment was revived in her name and leave granted to have execution.</p> <p>Upon these facts, the defendant having remitted all of her claim in excess of plaintiff’s demand under the order of the court, His Honor adjudged .the defendant to be entitled to have her counter-claim applied in extinction of plaintiff’s «debt, and gave judgment for costs against the plaintiff, from which judgment plaintiff appealed,</p>

<p> Proceedings Supplementary to Execution. </p> <p>‘To authorize the grant of an order of examination under proceedings supplementary to execution there should he made to appear by affidavit or otherwise;</p> <p>(1) The want o£ known property liable to execution, which is proved by the sheriff’s return of “ unsatisfied ” ;</p> <p>’P) The non-existence of any equitable estate in land within the lien of the judgment^</p> <p>(3) The existence of property, choses in action and things of value, unaffected by any lien and incapable of levy.</p>

Civil Action heard upon exception to a referee’s report at Spring Term, 1880, of Guilfqed Superior Court, before Seymour, J. The plaintiffs appealed from the ruling of the court b.elow. .

MotioN to dismiss an action heard at June Term, 1880, of Wake Superior Court, before Gudger, J. Upon the facts set out in the opinion, the motion was allowed and the plaintiff appealed.

<p>Civil ActioN commenced before a justice of the peace, and tried on appeal at Fall Term, 1879, of. .Onslow Superior Court, before Eure, J.</p> <p>Judgment for plaintiff, appeal by defendant.</p>

Civil AotioN tried at August Special Term, 1879, of Iredell Superior Court, before Qudger, J. The plaintiff declared upon certain notes under seal, and the defendant set up the plea of infancy and statute of limitations, in bar of recovery. The letter (dated in 1876) referred to in the opinion of this court and offered in evidence by the plaintiff to show that the defendant had ratified and confirmed the contracts made during his minority, is as follows: Messrs.

<p>Arbitration — Award—Evidence.</p> <p>Arbitrators chosen to decide all matters in controversy between several late partners in trade, made the following award “We, the referees chosen to make a settlement between John Osborne and R. S. Calvert, do make this settlement, to-wit :</p> <p>That Calvert is due Osborne on first settlement. $323 00</p> <p>On settlement with Tom Osborne & Calvert. 268 75</p> <p>Interest. 10 75</p> <p>(Signed by Arbitrators) §604 SO</p> <p>Held, (1) That, with the aid of parol evidence to show upon what matters the arbitrators aetecl, such award is not impeachable, either for uncertainty or for failing to pass upon all matters submitted.</p> <p>(3) That parol evidence is admissible to show upon what matters arbitrators acted.</p>

Civil Action to recover' land tried at Spring' Term, 1879,. of JohNSton Superior Court,, before McKoy, J. This action is for the recovery of land in- possession of the- defendant, who denies the- plaintiff’s right and asserts title in himself. The cause was-referred to E-. W. Pou, who made three successive reports, two of which were set aside- and to the-last at spring term', 1879, the defendant put in-several exceptions. 1.

<p>Civil Actioñ tried at Spring Term, 1880, "of Iredell Superior Court, before Gilmer, J.</p> <p>Judgment for plaintiff, appeal by defendants.</p>

Civil Action tried at Spring Term, 1880, of Franklin Superior Court, before Seymour, J. The court adjudged upon the facts agreed on that the plaintiff recover, and the defendant appealed.

Civil Action for specific performance of a contract tried at March Special Term, 1880, of Wilson Superior Court, before Avery, J. The plaintiff submitted to a nonsuit and appealed. The facts are stated in the opinion of this court.

Civil ActioN tried at Fall Term, 1879, of Cumberland Superior Court, before Seymour, J. The defendant filed a demurrer to the complaint, which was sustained and the plaintiff appealed. The facts are embodied in the opinion of this court.

<p>Evidence — Examination of Parties.</p> <p>The examinations provided for hy the code, sections 332-340, are only obtainable where the testimony sought is that of a person immediately interested in the action.</p> <p>Semble, that the provisions of section 336 of the code were not intended to abrogate the common law rule which forbids one to impeach the veracity of his own witness, but only to allow evidence that the facts were otherwise than as testified by such witness.</p>

Civil Action tried at Fall Term, 1879; of Mecklenburg; Superior- Court before Buxton, J. The case w;as heard upon exception» to an account, and! the defendants appealed from; the ruling and judgment ai the court below..

Civil Action to recover land tried at Spring Term, 1879, of Buree Superior Court, before Graves, J. Both parties claimed under one Smith upon whose death his land was sold under a decree of the court of equity for Biirke county on a petition by his heirs to sell for the purpose of partition. The tract in question was bought at the clerk and master’s sale by the' defendant and sold by him to the plaintiff.

<p>Evidence — Transaction with Deceased Person — * Guardian Bond, Bights of Surety.</p> <p>A surety on the bond oí a deceased guardian, having paid the amount of the recovery of a ward in a suit on such bond, brought action to he substituted to the claims of the guardian against one to whom he had loaned the money of the wards;</p> <p>Held. (1) That the plaintiff was entitled to put in evidence the account taken in the suit by the ward on such guardian bond, and that the debtor to the guardian could not object to such evidence, it being immaterial to her to whom she paid the amount of her indebtedness.</p> <p>(2) That the administrator of the dece'ased guardian was a competent witness to show the execution of the bond by the debtor to the guardian, the evidence being offered to affect the interest of a living person, and not "‘against a party then defending the action as executor, administrator, heir at law,” &c.</p> <p>(8) That while the plaintiff was not entitled at this stage of the case to have the debt assigned to him (it appearing that other wards -of the deceased guardian had not been paid in full,', he was entitled to maintain this action to have the debt paid into court to await a final adjustment of the rights of the several parties in interest.</p>

<p>Telegraph Lines — Appeal.</p> <p>Under-the act of March 19th,-1875, ‘"to facilitate the construction of telegraph lines,’" talien in connection with the act of February 8th,-1872, for the same purpose, no appeal is allowable from- an interlocutory ruling- in the course of proceedings to- establish such lines,- hut only from, the final judgment therein.</p>

Civil Action to recover laud, tried at Fall Term, 1879, of Buncombe Superior Court, before Graves, J. ■ The defendants appealed from the judgment of the court below.

MotioN by defendant to vacate an injunction heard at Chambers on the 28th of January, 1880, (in an action pending in McDowell Superior Court) before Avery, J. The plaintiff appealed from the ruling of the judge be* low.

APPLICATION of sheriff for directions as to the proper distribution of fund raised by executions against defendants in favor of the plaintiff and other creditors, heard at Chambers in LincolNTON, in July, 1879, before Schenck J. The matter was heard upon exceptions to a referee’s report, and Shipp & Bailey, creditors, appealed from the ruling of the judge below,

<p>PetitioN by plaintiff for a Certiorari, heard at June Term, 1880, of The Supreme Court.</p>

<p>Appeal — Certiorari—In Forma Pauperis.</p> <p>A certiorari will not be granted where tobe petitioner is unable to give ■bond for his appeal, unless it be shown that the judge below made .aa order allowing the appeál in forma pauperis.</p>

<p>PetitjoN by defendant for Certiorari, and Supersedeas beard ■at June Term, 1880, of The Supreme Court.</p>

Civil Action tried at Spring Term, 1880, of FrankliN Superior Court, before Seymour, I. This action is brought upon a promissory note in the foh lowing terms; GREENSBORO FEMALE COLLEGE, N. O.-, $2,000. Greensboro, N. C., Nov. 7th, 1872.

Civil Action (tried at Spring Term., 188©, of Mecklen-burg Superior Court, before McKoy, J. The plaintiff declared upon a promissory note made by W. & It.

MotioN to issue Execution heard at Spring Term, 1880, of MoDowell Superior Court, before Gilmer, J. The motion was made before the clerk who ordered execution to issue, and upon appeal to the judge of the superior court the judgment of the clerk was affirmed, and the defendant appealed to this court.

<p>Civil Action commenced before a justice of the ’peace and tried on appeal at Spring Term, 1880, of Chatham Superior court, before Seymour, J.</p> <p>The plaintiff declared upon a single bill of which the following is a copy, viz.;</p> <p>“One day after date we, or either of us, promise to pay diaries Cole the just sum of one hundred and thirty six dollars for value received of him, as witness our hands and seals. W. B. Doesett, [Seal.]</p> <p>March 2d, 1861. Jos. J. Fox, [Seal.]</p> <p>It was in evidence that Jos. J. Fox was in fact only surety on said note, the money having been borrowed for Dorsett. The defendant, Fox, introduced a written notice in conformity to the provisions of the act of 1868-69, ch. 232, § 1, addressed to the plaintiff, requiring him to sue W. B. Dor-sett upon the note, on which he was surety, dated March •5th, 1870, and served the same day according to the return thereon, by the sheriff of Chatham county. It was conceded that no suit had ever been brought on the note against W, B. Dorsett.</p> <p>His Honor charged the jury that if they were satisfied that the defendant was a surety, and that the notice was served on the plaintiff according to the sheriff’s return, the defendant was entitled to their verdict. The jury found the issues in favor of the defendant, and there was judgment according to the verdict. A motion was made for a new trial upon the ground that it was incompetent to show by parol evidence that the defendant was a surety. The motion was overruled and the plaintiff appealed.</p>

Civil ActioN tried at Spring Term, 1880, of CraveN Superior Court, before Gudger, J. The case was heard upon complaint, answer and demurrer to answer. The court overruled the demurrer and the plaintiff appealed.

Civil Action to recover damages for the sale and conversion of property conveyed in a deed of trust, tried at Spring Term, 1880, of Cumberland Superior Count, before ■Eure, J. D. EL Bell executed a deed in trust on the 18th of February, T87-9, to his co-plaintiff, J. O. Boone, conveying for the security of his creditors in two classes as therein expressed, a stock of goods, wares and merchandise described as consisting of liquors, dry goods, groceries, notions and general…

Special Proceeding for partition of land commenced in the probate court of Mecklenburg, and heard on appeal at 'Chambers, on the 28th of January, 1880, before Schench, J. The plaintiffs, petitioners, appealed from the ruling of the court below.

Special -Proceeding- commenced in the probate court -and tried on appeal at Spring Term, 1880, of Cumberland -Superior Court, before Eure, J. The -plaintiff for himself and all other creditors of the defendant’s testatrix, demanded judgment for an account and settlement of the estate, and for the amount due as alleged in their complaint, and that the property of the same-be applied to the satisfaction thereof. The facts are stated in the opinion.

<p>Civil ActioN tried at Spring Term, 1880, of Franklin Superior Court, before MoKoy, J.</p> <p>Judgment for plaintiff, appeal by defendant.</p>

The North Carolina railroad company, under its charter granted in 1849, and subsequent amendments, completed in 1858 its authorized line of railroad from Goldsboro to Charlotte, entering the city on the northeast at A street, and proceeding down the street to the place where its warehouse and depot buildings are located.

<p>Civil Action to recover laud, tried at Spring Term,, 1880,, of GuTlEoRd Superior Court, before Seymour, J.</p> <p>Judgment for plaintiffs-, appeal by defendant</p>

Special Proceeding- heard on appeal at Spring Term, 1880, of Cumberland Superior Court, before Eure, J. This was a proceeding instituted by the plaintiff wards against the defendant guardian in the probate court of Cumberland county for an account and settlement. The probate judge took testimony and stated an account, to which both parties filed exceptions.

Civil Action tried at Fall Term; 1879, erf Cumberland .‘Superior court, before Seymour, J. This is a civil action commenced on the 17th day of December, 1878. before a justice of the peace in the county of Cumberland, to recovar the amount of a note of which the following is a copy; $140. One day after date we promise to pay to A. A. McKeithan,, or order, one hundred and forty dollars value-received. (Signed) ' Clement Long, [Seal.] Oct. 27th, 1860.

<p>MotioN for leave to issue execution beard at June Term, 1880, of The Supreme Court.</p>

Civil AotIon heard upon exceptions to a referee’s report, at Spring Term, 1880, of GastoN Superior Court, before McKoy, J. The defendants appealed from the judgment rendered.

<p>Civil ActioN tried at January Special Term, 1880, of Duplin Superior Court, before Gilmer, J.</p> <p>The defendant appealed from the ruling of the court below,</p>

' PROCEEDING under the landlord and tenant act heard on appeal at Pall Term, 1878) of Mecklenburg Superior Court* before Schenck, J. The defendants appealed from the judgment below.

Civil Action tried at Fall Term, 1879, of LiNcoln Superior Court, before Buxton, J. This action was commenced before a justice of the peace to recover the sum of $187.39, due by note with interest from the 15th of July, 1860, subject to a credit of one hundred dollars of date February 9th, 1861. The defendant appealed from the judgment of the court below.

<p>Civil action upon an administration bond tried at June Special Term, 1880, of Henderson Superior Court, before Schenck, J.</p> <p>The defendants appealed from the judgment rendered.</p>

<p>Landlord-and Tenant — Vendor and Vendee — Estoppel.</p> <p>1. Where the .plaintiff in an aetion to reeover land alleges a title in fee, it is competent for him to support such title, as against the defendant in possession, by proof of a renting by the latter from the plaintiff as the •owner of the fee.</p> <p>•%. The rule between lessor and lessee extends equally to one who takes •or holds possession under a contract of purchase, and he is not permitted to .controvert the title of him under whom he entered orhy .whose (Sonsant he has continued a possession.</p> <p>3. Possession previous to a lease or purchase does not let in the party i» . possession to dispute the title under which he entered.</p> <p>4. A defendant in possession of land is estopped to allege a sheriff’s sale of the same by consent of the party under whom the defendant entered, and a conveyance to the defendant by the purchaser at such sale, without a prior surrender of the land by the defendant to the person under whom he entered.</p>

Civil action to recover land, tried upon exceptions to á referee’s report, at Spring Term, 1880, of Chatham Superior Court, before Seymour, J. See same case, 76 N. C., 127. Judgment for the plaintiff, appeal by defendants.

Civil Action to recover Land tried at Spring Term, 1880,. of Watauga Superior Court before Gilmer J. ■ The issues were found by the jury in favor of the plaintiff, judgment, appeal by the defendant.

Civil action to recover Land tried at Spring Term, 1880, of Ashe Superior Court, before Gilmer, J. The complaint alleges that the plaintiff is owner in fee simple and entitled to the possession of a certain tract of land described by metes and bounds, lying in the county of Ashe, and that the defendant entered upon it, cut down timber, and otherwise injured it and still wrongfully holds possession of the same.

<p>Special Pkoceeding- for Partition commenced-in the Pro*bate Court, and tried at Spring Term, 1880, of Bladen Superior Court, before Nitre, J.</p> <p>. Hays T Shipman died in .1844, owning a large estate inland and slaves which he devises to his wife (with some exceptions not necessary to notice) and adds the following-clause to the gift; “ desiring and trusting that she will souse it that it will be to the mutual benefit of. herself and my dear children, Mary Eliza, Hays McNeill, Sarah Dorcas and Eliza Annalso desiring that at the proper time she' will make' such advancements as prudence may dictate,(always bearing in mind that it is my wish that all my children shall receive, after her portion, equal shares) provided nevertheless, that should she choose to marry again, then and in that case, it is my desire and will that my es--tate be divided according to the laws of the state of North Carolina; ” and in this event he adds certain articles to.her. equal share.</p> <p>The son, Hays McNeill, died withqut issue; The testa-tor’s widow, Sarah J. Shipman, went into possession of the property and, upon the marriage of her daughter Mary E to the defendant H. C. McCallum, advanced to her land of the value of $1,000 and negro slaves of the value of $5,883- and perhaps a small additional sum in other articles;- and in like manner to her daughter Sarah D., on her interinar-riage with the defendant John P. Smith, no land, but slaves •of equal value as those advanced to her. sister, Mary E.</p> <p>The plaintiff Eliza A.., resided with her mother until her marriage with the plaintiff John N. Kelly, and thereafter -until her mother’s death in November, 186S, and no specific .-advancements were made to her.</p> <p>The slaves retained after the advancements' mentioned were twenty-seven in number and of the value of $11,766, •aud the land of the value of $1,750.</p> <p>The use of the property was shared in by the plaintiffs -while residing with the mother and until the emancipation of the slaves at the close of the civil war.</p> <p>The object of the suit is to have partition of the land and <to charge the defendants with the value of their respective •advancements in slaves, and the defendant Mary E. with the value of her land, and the faets stated were either conceded by the parties or found by the j’ury upon issues. The •defendants., Smith and wife, put in no answer.</p> <p>The court adjudged that the defendants were not chargeable with the value of the slaves advanced, that the defendants, McCallum and wife, having received their full share of the land, were precluded from claiming any part of that to be divided, and that the plaintiff, Eliza Ann, and the defendant, Sarah D., were entitled as tenants in common to equal moieties thereof and to a division between them.</p> <p>The plaintiffs’ appeal is from so much of the judgment .as exempts the defendants from accountability for the value -of the slaves received by them, and directs an equal partition of the land between the' other .two sisters.</p> <p>Mr. E. H. Lyon, for plaintiffs, cited Meadows v. Meadows,' 1.1 Ired., 148; Walton v. Walton, 7 Ired. Eq.,' 138; ¥/oodfin v. Muder, Phil., 200; West v. Ball, 64 N. C., 43.</p>

<p>Sale for Assets. — Purchasers—Demand—Practice—Parties.l '</p> <p>1. Devised' land was sold by ord'er of' the- court to- pay debts of' the de-visor,. and bid off' by the devisee, who, after the sale was confirmed,, but before the purchase money had’been-paid, mortgaged the same to the plaintiff'to secure a recited indebtedness of $1150. Aftewards, the-devisee allowed A to-pay the purchase money and take a deed from, the administrator cum. test, annex, of the devisorHeld.</p> <p>(1) That the plaintiff was entitled to ownership and possession of such land subject to the claim, of the administrator for the purchase money, and that a judgment in a suit between the devisee and one to whom, the plaintiffhad assigned the mortgage debt and security concluded all parties as to-the extent and validity of such debt.</p> <p>(2) That the rights of the plaintiff could not be divested by a demand; on him for the purchase money by the administrator cum. test, annexes. before conveying the legal estate to A.</p> <p>2. Where land is directed by will to- be' sold' and converted into money,the executor and not the heirs, represents- the estate, and the latter are not necessary parties to a suit concerning the diposition of and charges on such estate.</p>

<p>Special Proceeding commenced in the' probate court and heard on appeal at Spring Term, 1880, of Cleaveland Superior Court, before McKoy, J.</p> <p>The plaintiffs, administrators of R. N. Watterson, not having personal estate of their intestate to pay his debts, applied to the. probate judge for license to sell a tract of land -which, descended to the defendants his heirs at law. The petition alleges the value of the personal' estate to be about $160, and the debts to be some $400, of. which..half were contracted before the adoption of the constitution of 1868, and that the land proposed to be sold consists of fifty-acres worth two dollars and fifty cents per acre.</p> <p>The adult defendant makes no defence and the other six infant defendants, by theit guardian ad litem, answer admitting the facts charged and asserting their right of homestead in the land and its exemption from sale until the youngest of them arrives at full age. The license as asked was granted by the probate judge, and on defendants’ appeal so modified in the superior court as to authorize and direct a sale of the land for the payment of those debts only which were contracted before the honiestead exemption was givne by law, and from so much of the modified order as restricts the purposes o'f the sale, the plaintiffs appeal.</p>

<p>Civil Action removed from Iredell and tried at Spring Term, 1880, of .Wilkes Superior Court, before Buxton, J.</p> <p>The case is that on the 31st day of August, 1869, J. T. Long sued out a summons against R. M. Johnson returnable to spring term, 1870, of the superior court of Iredell, -and at the same time an order of arrest returnable to the elerk’s office on the 3rd day thereafter, both of which were placed in the hands of the plaintiff (then the sheriff of the county) with directions to execute the same promptly, and he- early the next morning, as he alleged, between seven and eight o’clock- put the paper in the hands of the defendant (then a deputy sheriff) with similar instructions to be diligent in serving the same.-</p> <p>The'defendant returned the process endorsed, “ came to hand 1st of September, 1869, at eleven o’clock; R.M. Johnson not found in my county.” And thereupon said Long instituted a suit against -the plaintiff to fall term, 1870, in which •a recovery was effected for the penalty of $500 and costs $83, upon the allegation that said return was false, and the plaintiff after paying the same and demanding repayment of the defendant and his sureties, brought this action on ■the bond of indemnity executed at the time of his appointment as deputy.</p> <p>Among other things, the defendant by way of defence alleged that the process had been placed in his principal’s hands on the evening of the 31st of August with notice to •execute the same at once, and -that Johnson was on the' streets and other public places and in the actual presence of the plaintiff, and that plaintiff kept the same in his hands without executing it, until Johnson getting information thereof made rapid flight so that he could not execute the process when it came to his hands at eleven o’clock on the next morning. At the trial in Wilkes, to which county the case was removed, the parties having disagreed as to the issues to be submitted, the judge framed the following:</p> <p>1. Did R. 0. Linster, Hugh Kelly and Hugh Reynolds ■execute to plaintiff the bond mentioned in the -complaint for the purposes therein set forth ?</p> <p>2. Were the summons and order of arrest- in the case of Long v. Johnson placed by the plaintiff in the hands of the defendant, Linster, as bis deputy for service on the said Johnson on the 1st of September, 1869 ?</p> <p>3. If so, could the defendant, Linster, by due diligence have executed the same after receipt by him ?</p> <p>4. Is the return on said summons and order of arrest or either of them made by defendant, Linster, to-wit: “ R. M. Johnson not to be found in my county,” a false return ?</p> <p>5. If said return was false, did plaintiff have knowledge •of its falsity, and consent to the return as made by his ■deputy ?</p> <p>6. Has the plaintiff been damaged by the said false return of his deputy made without his knowledge or consent; and if so, how much ?</p> <p>To these issues the plaintiff objected and proposed the •three following as a substitute:</p> <p>1. Did R. 0. Linster, Hugh Kelly, and Hugh Reynolds make and execute the bond named in the plaintiff’s complaint ?</p> <p>2. Is the return on the summons and order of arrest, or either of them, sued out by Long v. Johnson, made by R. O. .Linster as deputy sheriff, and is it a false-return ?</p> <p>3. Has the plaintiff been damaged, and to what amount ?</p> <p>'The issues offered by the plaintiff as a substitute being ’rejected by the court, the plaintiff excepted, and this exception with others taken in the progress of the trial to the admission of evidence and to the instructions of the court given and refused (of which a more particular mention will be hereafter made) constitute the errors for our consideration on this, the plaintiff’s, appeal.</p>

<p>Appeal — Certiorari — Amendment of Record — Discretionary .</p> <p>3, A certiorari? as a remedial writ, will be granted on behalf of the state-in a criminal action, under the supervisory power conferred upon this-eourt by section eight, article four, of the constitution, where it appears in the petition that the superior court, on motion of the state to amend the record of a trial so a-s to malte it spealr. the truth, refused to hear evidence in support of the motion upon the ground ©f a want of power.</p> <p>SL Every eourt has powertoamend its-record to- make it speak the truth, and for that purpose to-hear evidence. But the propriety of theamend-merat and the particulars wherein it is to- be made, are matters addressed to- the discretion of the judge, tlie exercise of which is not reviewable by appeal or certiorari*</p>

Indictment for a misdemeanor tried on appeal at Spring Term, 1SS0> of Alleghany Superior Court, before Buxton, I\ Motion in arrest of judgment allowed, and the state appealed,

INDICTMENT for larceny, tried at Spring Term, 1880, of 'Chatham Superior Court, before Seymour, J. The defendant was indicted 'and tried hy a jury in the inferior court of Chatham-, The bill contained two- counts, one for larceny the other for receiving. The jury found him guilty of larceny only.

<p>INDICTMENT for killing live stock tried at Spring Term,. 1880, of Pitt Superior Court,, before Avery,. J.</p> <p>The defendant appealed from, the ruling, of the judge below.</p>

INDICTMENT for an Assault tried at Spring Term, 1880, of Hicrtfohd Superior Court, before Graves.

Indictment for an Assault, tried at Spring Term, 1880, of Perquimans Superior Court, before Graves, J. The defendant was indicted for a simple assault.

<p>Indictment for an assault with intent to commit rape, tried at April Term, 1880, of New Hanover Criminal Court, before Meares, J.</p> <p>Verdict of guilty, judgment, appeal by the defendant.</p>

INDICTMENT for an assault with intent to carnally know a female under ten years of age, tried at Spring Term, 1880, of Wilkes Superior Court, before Buxton, J. The indictment charged that the defendant in and upon one Mary Ann Whittington (an infant under the age of ten years), feloniously made an assault, and her the said Mary did beat, wound and ill-treat, with intent her the said Mary feloniously and unlawfully to carnally know and abuse, &c. The defendant was convicted,…

PROCEEDING in Bastardy, heard at January Special Term, 1880, of Waice Superior Court, before Avery, J. This proceeding was commenced before a justice of the peace to subject the defendant to the maintenance of an -illegitimate child, charged to have been begotten by him upon the body of one Jenny Green.

PROCEEDING- in Bastardy, tried At Spring Term,'1880, of .Johnston Superior Court, before Eure, J. Upon the trial of the issue the mother of the ehild was introduced as .a witness ifor the .-state and testified as to .the paternity of the-child and the- time when it was begotten by the defendant. She was- asked if she had not been before-criminally intimate with several men whose names were mentioned, and especially with one Tom.

IndictmeNt for Bigamy, tried at Spring Terra, 1880, of Henderson Superior Court, before Schenck, J. This was an indictment against the defendant for the •crime of bigamy.

INDICTMENT against the county commissioners for failing to repair a certain bridge, tried at Spring Term, 1880, of Hyde Superior Court, before Graves, J. Upon the facts found by the jury, the court held the defendants not guilty, and Qrandy, solicitor for the state, appealed.

<p>INDICTMENT for burning a gin-house, &c., tried at Spring Term, 1880, of Pitt Superior Court, before Avery, J.</p> <p>Verdict of guilty, judgment, appeal bj the defendant.</p>

IndictmeNT for'Larceny tried at Spring Term, 1880, of Chatham Superior Court, before Seymour, J. The defendants, Harrison Holland and Jasper Fuller, were tried at said term, for larceny and receiving stolen goods. On the trial the state offered one Stephen Stone as a witness against the defendants. Stone was an accomplice and the bill of indictment had been sent against him and the others, but his name was erased from the bill.

<p>Evidence — Practice—Judge’s Charge — Drunkenness.</p> <p>'1. The weight of evidence is always a question for the jury.</p> <p>2. A prisoner offered to prove a conversation between a witness and another person, and the same was rejected ; Sold that an exception thereto cannot be sustained in this court, where the evidence proposed and rejected is not set out in the record.</p> <p>•3. In a conflict of memory between a judge and counsel as to what a witness had testified, the jury were told that the court might be mistaken in the notes of the testimony and they could use them to refresh tV.eir memory, but it was from the mouth of the witness they were to get the testimony upon which to found their verdict; Held, no error.</p> <p>■4. Voluntary drunkenness is never an excuse for the commission of a crime.</p> <p>'5. This court will not pass upon an exception which is not shown by the record to have been taken on the trial.</p>

<p>INDICTMENT for administering Poison tried at Spring Term, 1880, of Maoon Superior Court, before SchencJc, J.</p> <p>See same case reported in 82 N. C., 653. Verdict of guilty, judgment, appeal by defendant.</p>

<p>INDICTMENT for burning a barn tried at Spring Term, 1880, of Rutherford Superior Court, before McKoy, J.</p> <p>The defendant was indicted for burning a barn. The evidence against him was circumstantial and he relied for his defence upon an alibi.</p> <p>His Honor charged the jury in regard to an alibi, thát if proved and established by testimony, it was the most complete and satisfactory defence that could be made; that when' not complete, it could not avail the defendant. Whether an alibi is proved is a question for the jury. It is the duty of the jury to weigh the whole testimony, and if there is a reasonable doubt as to the guilt of the defendant, it is the duty of the jury to acquit. The state, before it can ask for a verdict of guilty, must offer to the jury such evidence as will fully satisfy the minds of the jury of the guilt of the defendant.</p> <p>Exception was taken to the charge of His Honor, so far as it relates to the defence pf an alibi, and some othér exceptions were taken to-the admission and rejection of testimony, as set out in the opinion of this court. There was a verdict of guilty and judgment from which the defendant appealed.</p>

IndictmeNt for False Pretence tried at Spring. Term, 1880, of Bertie Superior Court, before Qudger, J. The defendant was indicted in the inferior court of Bertie uounty for obtaining goods and money by false pretences.

Indictment for Forcible Trespass, tried at Spring Term, 1880, of Mecklenburg Superior Court, before McKoy, J. The case had been tried in the inferior court of .Mecklen-burg, and upon the conviction of the defendant he appealed to the superior court. Upon examination of the record and after argument, the judge held that there was no error and affirmed the judgment below, and the defendant appealed to this court.

INDICTMENT for Murder tried at February Term, 1880, of New HaNovee. Criminal Court, before Meares, J. The jury found the prisoner guilty-of manslaughter, judgment, appeal by prisoner.

INDICTMENT for an Affray tried at Spring Term, 1880, of Wilson Superior Court, before Avery, J. The defendant was indicted with one Cobb for an affray. A nolle prosequi was entered as to Cobb, the jury convicted the defendant who moved in arrest of judgment, and appealed from the refusal of the judge to grant his motion.

INDICTMENT for a Misdemeanor, in removing crop on which there was a lien, tried at Spring Term, 1880, of Edgecombe Superior Court, before Gudger, J. The charge was substantially as follows : The jurors, etc., present that defendant agreed with one Newman to cultivate on a certain parcel of land (belonging to Newman) there situate, during the year 1878, a crop of cotton and corn and to divide said crop with Newman, the defendant to have all the cotton except two bales, and…

<p>Indictment — Sufficiency of — Duty of Municipal Officers concerning Street s.</p> <p>An indictment against the mayor anti aldermen of a city for a neglect of official duty in failing' to remove obstructions from a street and to keep the same in repair, is fatally defective if it fails to point 'ortt the particular public duty neglected, or to refer to the statute imposing it.</p>

<p>Justice’s Jurisdiction — Disposing of Property under Mortgage..</p> <p>Justices of the peace have exclusive jurisdiction of the offence of fraudulently disposing of personal property embraced in a chattel mortgage, (Acts 1874, eh. 31; 1S75, ch. 215; 1879, ch. 92’.)</p>

<p>INDICTMENT for a Misdemeanor, tried at Fall Term, 1879, of Carteret Superior Court, before Eure, J.</p> <p>The defendant was indicted at a superior court opened and held for the county of Carteret, on the ninth' Monday after the first Monday in March, 1879, for an unlawful and wilful entry upon the land of one Laughton, without a license therefor after being forbidden so to do. Upon plea to the jurisdiction of the court, the judge held that exclusive original jurisdiction of the offence charged in the bill of indictment was vested in a justice of the peace, and discharged the accused, and from that judgment Galloiuay, solicitor tor the state,, appealed.</p>

<p>Larceny — Sufficiency of Evidence.</p> <p>Where, on an indictment for larceny, it was in evidence that two days after the larceny'was committed, the stolen goods were found man-¿uninhabited house half a mile from where defendant lived, in which the former occupant had left some turnips* etc.that at one o’clock at night of the samé day, the defendant and a woman went to the house,, he going in at the window and she remaining outside f that when certain persons who were watching the house approached, the woman ran off, and the defendant being ordered to come out did so after some delay Meld, that the evidence- did not warrant the eonviction of the defendant.</p>

PeoceedxNG under a Peace Warrant beard at Spring Term, 1880, of Wake Superior Court, before Qudger, J. Tlie warrant was issued, in bebalf of one Malvina Goram, by a justice of the peace, and alleged “that she has reason to fear and doth fear that Alfred Goram will do her serious bodily injury, and hath prayed that be be bound with surety to keep the peace.” Upon the bearing, the defendant moved to quash the proceedings on the ground that the warrant does not show that any…

<p>Practice — Judgment against prosecutor for Costs.</p> <p>Where after the acquittal of the defendant in a criminal action, one II was marked as prosecutor and adjudged to pay the costs on motion of the defendant and the solicitor, but upon notice given by the' defendant alone; Held not to- be error. (Act of 1879, eh. 49.)</p>

INDICTMENT for selling liquor in violation of the statute, tried at Spring Term, 1880, of Hendeeson Superior Court, before Sehenck, J. The defendant was indicted for selling spirituous liquor to one Nelson by a measure less than a quart without having a license therefor, and on the trial the evidence by Nelson was, that the defendant had a room in the town of Hen-dersonville, and in the room was a table with a decanter on it containing spirituous liquor and tumblers, and in…

' Indictment for larceny tried at Spring Term, 1880, of WAKE'Superior Court, before Oudger, J. On the trial of this case, a tales juror -was challenged for cause on the ground that he was not a freeholder -within-the county of Wake, (he owned land lying in the county of Franklin.) The challenge was disallowed by the court and the defendant excepted. Verdict of guilty, judgment, appeal by defendant.

<p>INDICTMENT for an Assault and Battery tried at Spring '.Term, 1880, of Watauga Superior Court, before Gilmer, J.</p> <p>(During the trial, the defendant offered to prove that the ' Offence, df any,-was committed beyond the county line of 'Watauga and in the state of Tennessee, but the court upon -objection by the state refused to admit the testimony, unless the defendant would withdraw the plea of “not guilty"” and plead in abatement, which he declined to do. And thereupon the court rejected the evidence and the defendant excepted. Verdict of guilty, judgment, appeal by defendant</p>

<p>Criminal Action commenced before the mayor of the town of Clinton, and heard on appeal at Spring Term, 1880, of Sampson Superior Court, before Avery, J.</p> <p>The mayor of the town issued a warrant for the arrest of the defendants, in the following words; B. F. Boykin complains on oath and says that at and in the town of Clinton, on or about the 9th day of May, 1880, Julian Merritt and Avery Peterson did while driving out of town act in a disorderly manner by driving at a furious rate, and did whoop and holloiv so loud as fo disturb the quiet of the town, especially those persons living on the street on which they were driving, contrary to the law and in violation of the sixth ordinance of said town, and against the peace and dignity of the state,</p> <p>The motion to quash the proceeding was allowed by the court below, and' Galloway, solicitor for the s.tate, appealed.</p>

<p>Indictment for Assault and Battery tried at Fall Term, 1879, of Halifax Superior Court, before Avery, J.</p> <p>On conviction of the defendant in the court below, a' motion was made to arrest judgment, on the ground that the bill of indictment was found on the evidence of witnesses sworn in court and sent to the grand jury, instead of on that of witnesses sworn by the foreman of the grand jury and by him endorsed on the bill, under the act of 1879, ch. 12. The motion was refused by the inferior. couit, but allowed by the superior court, and the solicitor appealed.</p>