Volume 84 — North Carolina Reports

<p>Claim and Delivery tried at Fall Term, 1880, of Lincoln Superior Court, before Seymour-, J</p> <p>On the 15th of October, 1877, the plaintiff brought her action of claim and delivery for a horse, in the court of a-justice of the peace, against the defendant, and at the same time gave a bond with one Jacob Kiser as her surety, in which they acknowledged themselves bound in the sum of one hundred dollars to the defendant, “for‘the prosecution of the action and for the return of the property, if the return. be adjudged, and for the payment of such sum as may be for any cause recovered against the plaintiff.”</p> <p>The justice issued his order to the sheriff for the seizure of the property and its delivery to the plaintiff, but the defendant giving a delivery bond, he was allowed to retain it until the trial before the justice on the 18th of the month, when the plaintiff had a judgment and the defendant appealed.”</p> <p>In the superior court at fall term, 1878, the defendant moved to dismiss the plaintiff’s action, because of a defect in her original affidavit, and the plaintiff asked to amend, and was allowed to do so “ upon payment of the costs up to and including said term.” At the same term the action was tried by a jury who found all issues in favor of the plaintiff, .and thereupon the court gave her judgment for the delivery •of the horse, and in default thereof, for double its value, and for “ the costs of the action accruing after the day of trial.”</p> <p>The case was dropped from the docket of the court, and mo further action taken until the 27th of October, 1879, when a notice signed by W. M. Reinhardt as clerk of Lincoln superior court was served on Jacob Kiser (the appellant here) that a motion would be made at the next term in the case of Hallman v. Dellinger, “ to enter judgment against him •on the prosecution bond for the amount of the costs in said •action against the plaintiff.” Accordingly, at spring term, 1880, such a motion was made and continued until fall ■term, when it was adjudged that the plaintiff, Sarah Hall-man, recover of the said Kiser the sum of fifteen dollars •and seventy-six cents, the court costs, and the further sum of ■sixteen dollars, the amount of fees due the defendant’s witnesses, together with the costs of the motion to be taxed by ithe clerk. From this judgment, Jacob Kiser appealed.</p>

<p>MotioN heard at 'Fall Term, 1880, of Cabarrus Superior Court, before Seymour, J.</p> <p>The motion was made by-defendant io enter satisfaction «of a judgment o.n the ground that a certain release to the principal debtor of his individual liability, but .not'the securities upon notes held by the creditor, operated a satisfaction of the judgment and discharge of the surety. The •motion was denied, first, because the alleged release is not under seal, (Smithmclc v. Ward, 7 Jones, 64), and secondly, because it is only of the indebtedness o"f the debtor individually and to the exclusion of others, and offsets .only his unsecured debts. From this xuling .the defendant .appealed.</p>

Civil Action tried at Fall Term, 1880, of Cabarrus Superior Court, before Seymour, J. On the 23d day of Sept., 1873, one J. L. Litaker and the defendant executed and delivered to the plaintiff a bond of which the following is a copy: Three months after date with interest at eight per eent., we promise to pay to H. M. Goodman or order, one hundred dollars for value received.” (Signed and sealed by J. L. and W. N. Litaker.) The action was brought in a justice’s court on the…

MgtioN beard at Fall Term, 1879., of Rutherford Superior Court, before Buxton, J. This was a /motion for judgment and execution against ■the defendant surety upon an .appeal bond. The facts .are stated in tbe opinion. Motion allowed and tbe defendant appealed.

Civil ActioN tried at August Special Term, 1880, of Rowan Superior Court, before McKoy, J. The suit was begun in a justice’s court in which the plaintiff declared upon a bond made by the defendant’s intestate as surety to one John B. Kerns. The bond was for one hundred dollars and was payable to the plaintiff as guardian of Thomas M. Kerns.

Civil Ac'itioN commenced before a.justice of the peace and tried on appeal at November Special Term, 1880, of Ham- ..

Civic Action tried on appeal from a justice of the peace at Fall Term, 1580, of Mecklenburg Superior Court, before Seymour, X Verdict and judgment for plaintiff, appeal by defendant. Same case, 82 N. C.f 116. •

<p>Negotiable Jfosbrvmeni — Assignment—Giximter- Claiwu</p> <p>1. The assignee-fbr-value of a, non-negotia>M'e instrument who tafees it,. , even before due,.and without netice-of any equities between prior parties thereto* will hold; it subject to all equities or couutcr-claims between the original parties existing at the time of assignment,</p> <p>2. A paper to be negotiable-must be certain as to. the time of payment, and the amount to be paid.</p> <p>3„ An instrument (-in other respeets)iiu the form- of a, note, which contains a promise to-pay a certain sum, with current rate of exchange in • New. York,, together with counsel fees and. expenses in collectingit„ it placed in the hands of an attorney for collection; and which further provides that the payees shall ha e power to declare said note due at any time they may deem it insecure,, even before maturity, is non-negotiable for uncertainty ; (1) as to the amount to be paid, by reason the stipulation for attorney’s fees and rate of exchange, and (2) as to the time of payment, by reason of the provision which makes it paya" ble before maturity at the future option of the payee.</p>

Civil Action tried at Spring Term, 1880, of Mecklen-burg Superior Court, before McKoy, J. O. P. Noel, a creditor of the defendant, as a means of payment, drew his check on the latter for the amount of his debt in favor of the plaintiff bank.

Civil Action for divorce a mensa et thoro, tried at June Special Term, 1880, of Hendeeson Superior Court, before Schenek, J. The plaintiff had issued a summons on the 19th of No* Vember, 1879, returnable to spring term, 1880. The defendant is a non-resident of the state. Publication was made according to law, and the only question is, whether the plaintiff could proceed to trial and judgment against defendant without a personal service of process.

<p>Civil Action for di-varce ee vinculo matrimonii fried aft Pall Term,. 1879; of Ca&abj&us- Superior Court, before Bux-ton, J.</p> <p>The plaintiff brings- this action for a- divorce, and in his-complaint alleges that the defendant,, hi's wife, has been* guilty of adultery. His wife in her answer denies every allegation of her gúilt, and in túrn charges the plaintiff with having abandoned'her in the month of February, 1877,. since which time he has in no wise contributed to the support of herself, or children (of whom there are five, all infants) ; that by dint of great industry and the aid of friendo she has barely been able to support them, and is- wholly without means necessary to their maintenance a-nd the de-fence of the plaintiff’s suit;; and thereupon she prays for af divorce from bed and- board and for an allowance, such as-might be deemed right, with which to' defend the action-. At fall term, 1879; the defendant moved- the court to make' her such allowance, having given due notice of her intention to make the motion to the plaintiff, who appeared and resisted the same. On the hearing, the- plaintiff “"denied that he had any property, but conceded himself to-’be an« able bodied man.” His Honor granted the motion of thewife a-nd directed the husband to pay into court three dollars per month for her use and benefit. The plaintiff complains- of this order, because it was made without any inquiry into the ex-tent and value of his property, and appeals-therefrom to- this court.</p>

Civil ActioN of claim .and delivery tried at Spring Term, 188Q, of Wake Superior Ccmrij, before Qudg&r, .J. The plaintiffs claim the cotton in question by virtue of a mortgage giving a lien upon the crop-- raised on- the land described in the pleadings. The facts are as-follows : James G. McPheeters, the owner of the land, was-indebted-to F. A. Belvin on the 31-st of December, 1877, in the- sum of one thousand dollars.

Cxvíl Action tried at Spring Term, 1878, of Granville Superior Court, before Seymour, J. The action is to recover damages from the defendants for their forcible seizure and removal of a lot of tobacco, claimed by the plaintiff, and in his possession.

<p>Justices’ Jurisdiction — Equitable Power.</p> <p>1. A justice of the peace has Jurisdiction to try an action upon a lost note wherein a surii less than two hundred dollars is demanded, and is competent to exercise the power of requiring- in such case the indemnity of the defendant,</p> <p>2. The equitable power of the superior court and the courts of Justices of the peace, and its exercise mailer the provisions of the constitution, discussed by RufíTN, J.</p>

The plaintiff both before the justice and in this court based her claim upon the promise of the defendant Wilson fo pay a debt due by one Green to the plaintiff.

Special Proceeding to sell land for assets commenced in the probate court and heard on exceptions to a referee’s report, at Spring Term, 1880, of Chatham Superior Court, before Seymour, J. The heirs at law of the plaintiff’s intestate, James Edwards, appealed from the judgment of the court below.

M-otxok iu the cause heard at August Special Term, 1880, •of Rowan Superior Court, before McKoy, J. This was a motion in the cause upon notice to T. J. and P. P. Merony, substantially as follows: You will take notice that at next term I shall move the court to require-you to pay a note for $827.21, dated on the 22d of January, 1863, with interest from date, payable to Luke Blackmer, guardian of Anna Macay, and executed by Josephus W. and Newberry F. Hall; and on default of…

MotioN in the cause heard at August Special Term, 1880, of RowaN Superior Court, before McKoy, J. There was judgment for petitioners, from which the Beards appealed. See preceding case.

Petition for account and settlement heard on exception to referee’s report at Spring Term, 1880, of Chatham Superior Court, before Seymour, J. The plaintiffs appealed from the judgment below.

<p> Confederate Currency —Evidence. </p> <p>Ú. Evidence-as to the ■currency intended hy the parties to a note executed in January, 1863, for land, that a proposition was made to sell the same for $1,000 In confederate money which was declined, the • party (declining) at the time expressing the opinion that it was worth $600 in good money, is competent to eonflrm the statutory presumption arising upon the faee of the note as to the hind of money inSvhich It was sol-vable.</p> <p>A Where no particular «pedes of money is designated, in -such note, and sundry credits are endorsed thereon (paid in national currency in 1867-1870,), tlie debt and the partial payments should alike 'he reduced to a speeie basis in order to an adjustment of the el aim.</p>

Civil AotioN tried at Fall Term, 1880, of Bladen Superior Court, before Avery, J. The action was brought by the plaintiff to recover of the defendant administrator cum testy annex, of George W. Melvin and his surety, Duncan Cromartie, upon his administration bond, the amount of a decree which the plaintiff as administrator of Angus McLelland had recovered against the defendant administrator in the court of equity of Bladen county.

■Civ-il Action heard on complaint and demurrer at November Special Term, -1880, of Halifax Superior Court, -before Graves, J. This action was brought -in the superior court to recover ■the amount due upon the following bond; On demand the first of*January, 18-76, we, or either of us promise to pay to John Whitfield or order two hundred and forty-five dollars in current funds. Dated February 18th, 1865.

OoNTROYiiKSY for the construction of a will, submitted, upon a case agreed and heard at Pall Term, 1880, of Davie. Superior Court, before McKoy, J. The defendant appealed from the ruling and judgment, of the court below.

<p>Proceeding for the construction of a will submitted without controversy, under section 315 of the Code, and heard at Spring Term, 1880, of Craven Superior Court, before Gudger, J.</p> <p>The defendant, Thomas S. Howard, appealed from the ruling of the court below.</p>

Civil Action to recover land tried at Spring Term, 1880, of Pitt Superior Court, before Avery, J. Richard Harris, who formerly owned the land, the title to which is in controversy in this action, died on the 6th day of April, 1836, leaving a will wherein he devises the same in these words : “ It is my will that my son Henry have land, (describing its boundaries) and that he have the use of it during his life; and if he should die with a lawful child, then to him and his…

Civil ActioN .pending in PasquotaNK Superior Court and heard by consent at Washington, Beaufort county, on the 10th of December, 1880, before Schenck, J. .

Civil. Action commenced before a justice of the peace and tried on appeal at November Special Term, 1880, of Halifax Superior Court, before Graves, J. The case was submitted to the judgment of the superior court upon a state of facts in substance as follows: Three writs of fieri facias were duly issued on the 4th day of December, 1878, in each of which R. H. Smith was a party defendant, and on the 7th of the month next after, the plaintiff as sheriff levied the same on the…

<p>Sh eriffs — Fees—Jury.</p> <p>The law makes no provision for paying sheriffs for services in summoning-tales-jurors.</p>

There were several executions in the hands of the plaintiff sheriff against one Lutterloh, the defendant in the executions. They were levied upon the lands of said Uutter-loh, and at the fall term, 1880, of the superior court of Randolph county, the sheriff proceeded to sell the land so levied upon, and it was bid off by Pox, the defendant, (who claimed to have control over two of the executions, as trustee of the judgments,) for a sum less than the amount of his judgments.

From the transcript and the case for the appeal, the following facts appearIn the year 1877, the plaintiffs filed a petition in the probate court of Lincoln county for partition of lands between the defendants and themselves.

<p>Appeal— Certiorari.</p> <p>A. certiorari will her granted the petitioner' where Che omissioii topers feet his appeal was occasioned by the failure of the prevailing party to> have the judgment properly prepared and entered of record.</p>

<p>Appeal — Certiorari.</p> <p>:A certiorari will not be granted where it appears that the petitioner failed to apply for the same at the term of this court next succeeding the rendition of the judgment against him,</p>

<p>'.PetitioN for certiorari filed by plaintiff on the 8th of January, 1880, and Jieard at January Term, 1881, of The Supreme Court.</p>

<p>Civil Action, tried at Fall Term, 1880, of Lesoir Superior Court, before Gudger, J.</p> <p>The action was heard upon a case agreed and founded npon the construction of the following instrument;</p> <p>“State op North Carolina. Waynjg County:</p> <p>“Know all'men by these presents that I, Enoch Cobb, for the consideration of the good will, favor and affection that I bear towards my son-in law, James M. Hines, I give to the said James M. Hines the following negroes : Old Kedar, Catherine, Edwin, Teanor and Alfred, and four head of horses,-one yoke of oxen, nine sows and pigs, and twelve head of cattle, one hundred barrels of corn, ten stacks of fodder, and working tools, seven head of sheep. In -witness whereof I hereunto set my hand and seal this'23d day of February, 1839.” [Signed) “E. Cobb.”</p> <p>“I also place and set over and appoint James M. Hines agent of the hereafter named property, to be to use and benefit of my daughter Cartha, and the lawful heirs of her body, to them and their successors, to-wit: Patsea, Winney, Ellic, Little Kedar, Abram and Smitha, and the following tracts of land, beginning at a stake in the river, 18 poles above the mouth of the marsh gut and runs S. 87, E. 116, then N. 69, E. 80 poles to a post oak and sassafras, then S. 50, E. 10 poles to a gum, then down a small drain to a sweet-gum on the north edge of the marsh gut, and then up the said edge to the corner named by the John 0. Whitfield deed to me, then S. 4 poles to a pine stump, then S. 27J, W. 81 poles to the centre of three pines, then to a hickory 65 poles, then 22 W. 46 poles, then N. 65. E. 93 poles to a water oak on the road, then down the road to a stake in the river at low water mark, then up the meanders of the river to the beginning, be the same more or less, but the above named land may be better distinguished and known by reference to three deeds, one from Carroway Hines, one from Ichabod Herring and Grady Herring, and one from John 0. Whitfield, supposed by estimation to contain one thousand and eighty-eight acres. In witness whereof I hereunto set my hand and seal this 23d day of February, 1839.”</p> <p>(Signed in presence of witnesses) “ E. Cobb, [Seal].”</p> <p>The deed was duly proved and registered. Cartha died before the late war, and the plaintiff is her only living child, and the defendant washer husband, referred to in the above deed. The defendant received the rents of the said land, and the hires or profits of said negroes, until the close of the war in 1865.</p> <p>The plaintiff and defendant reserving all issues and questions of fact for future consideration, now submit the above to. the court upon the issue of law presented, i. e. can the plaintiff maintain his action, or is he entitled to his account of said rents and profits?</p> <p>It is agreed that if the court is of opinion on this case for the plaintiff, then it shall proceed to try the issues of fact raised by the pleadings, but if of opinion against the plaintiff, then the defendant shall have judgment against the plaintiff and his sureties for costs..</p> <p>Upon the case agreed it was adjudged by the court that the plaintiff can maintain his action and that he is entitled to an account as prayed in his complaint, from which judgment the defendant appealed.</p>

Civil Action to recover land tried at Spring Term, 1880, of Harnett Superior. Court, before Eure, J. . - The plaintiff appealed from the ruling of the court below.

Civil A.ctioN on an official bond tried at Fall Term, 1880, of Caswell Superior Court, before Eure, J. The plaintiff appealed from the judgment below. The fund received by defendant by virtue of his office ; and his sureties are liable. Broughton v. Haywood, Phil., 380. Cases cited in opinion of court discussed. Clerk must account for all moneys received, &c. Havens V. Latham, 75 N, C., 505; State v. Gaines, 8 Ired., 168.

Civil ActioN is the name of the State ct reZ, upen the ¡bond of an administrator, tried at Fall Term, 1880, of .MeckleNBURG; Superior Court, before Seymour, J. The plaintiffs allege in their eomplaint that Joseph C. Nicholson died intestate -in 1872, leaving as his next of kin five children,, amongst whom were the twofemale plaintiffs.; and that in the same year administration on his estate was .■granted to J. R. Nicholson, who executed a bond with ■Samuel Berryhill and the…

Civil Action on a guardian bond tried at Spring Term, 1880, of Randolph Superior Court, before Seymour, J. The action was brought upon the guardian bond of Thomas Cox, the testator of the defendant. William Cox, late of Randolph county, died in the year 1856, testate. His will in which his son Thomas Cox was appointed executor was admitted to probate at the August term, 1S56, of the court of pleas and quarter sessions for Randolph county.

Civil Action tried upon complaint and demurrer at Fall Term, 1880, of Buncombe Superior Court, before Gilmer, J. The complaint is as follows: 1.

Special Proceeding for an account and settlement commenced- in- the probate- court and- heard upon exceptions to referee’s report at Fall Term,-1879, of Columbus Superior Court, before Seymour, J. Upon the hearing of the case, the-- court overruled th& exceptions and the defendant appealed.

Civil Action tried at Fall Term, 1880s of Lincoln Superior Court, before Seyjnour, Ji The plaintiff'sued in. a justice's court upon- a. contract of which the folio-wing; is a copy r, “'We the undersigned committee-of Edward's district authorize M. W. Robinson, to-teach, the free public school in this- district, to commence on. Monday* July 15th, 1878, and continue until funds- are exhausted.

Civil Action in the nature of quo warranto tried at, Fall Term,. 1880, of MeCKLEN-bubs Superior Court, before Seymour, J. This action was instituted in the mame o-f the people-of the state on the relation of the plaintiff King,, to try the title to the office of constable. The facts are stated by Mr. Justice Rueein in the opinion of this court.. His Honor held that the defendant was entitled to hold the-office, and the plaintiff appealed.

Application by plaintiffs for an injunction heard at Fall Term, 1879, of Mecklenburg Superior Court, before Bux-ton, J. The purpose of the present action is to restrain the enforcement of a tax levied and in process of collection to meet the expenses incurred in constructing a fence around the territorial limits of township No.'6, usually known as Clear Creek township, under the- act of March 3d, 1873' (Acts 1872-73, §: 193).

<p>Board of Township Trustees deprived of corporate powers— Public and Private Corporations — Rights of Party dealing with same.</p> <p>Í, The county government act of IS77. ch. 141, deprived’ the hoard of township trustees of its existence as a municipal corporation, and hence it cannot be a party to- a suit.</p> <p>2. A party dealing with a municipal corporation has no such vested right growing out of his contract with the same as is protected by the federal constitution. It is a public institution and the state may destroy its corporate powers, leaving the party endamaged to seek relief by an appeal to the legislature. But the rule is otherwise- with regard to private corporations.</p>

Civil Action tried at August Special Term, 1879, of Iredell Superior Court, before Gudger, J. The plaintiff bank brought this action to recover the amount alleged to be due from the defendant town on account of the non-payment of certain coupon bonds issued by the defendant in aid of the construction of the Atlantic, Tennessee and Ohio railroad. Verdict and judgment for plaintiff, appeal by defendant.

<p>Civil Action tried át August Special Term, 1880, of Duplin Superior Court, before Schenck, J.</p> <p>The facts are stated in the opinion. The plaintiff submitted to a nonsuit and appealed.</p>

Mo.tioN of defendants, to. dismiss the-action heard at Pali Term, 1880, of Onslow Superior Court, before Gudger, J. The motion, was allowed and the plaintiffs appealed.

Civil ActioN on a constable’s bond', beard upon exceptions to the report of a referee, at Fall Term, 1879, of Guilford Superior Court, before McKoy, J. The plaintiff appealed from the judgment below.

<p>Practice — Reference—Exceptions.</p> <p>It is not error to- overrule exceptions-to tire report oí a referee, wliicb are immaterial or not sustained by the facts.</p>

<p>Petition to rehear filed by the plaintiff and beard at .January' Term, 1881, of The Supreme Court.</p>

<p>Parties— Practice.</p> <p>1. In an action to recover land, where it appeared (hat the defendant in possession had mortgaged the hind, and the same had beeu sold under a power in the deed on default of payment of the secured debt, the purchaser at such sale has the right upon affidavit to be let in as party-defendant.</p> <p>2. In such case it is error to proceed with the trial until the question as to the right of the applicant to be made a party has been heard and finally determined.</p>

<p>Pleading— Practice — Parties»</p> <p>1. A complaint in which are two canses of action, the one upon a debt and the other to declare void certain conveyances alleged to have been made by the debtor in fraud of the complaining creditor, is not demur-rable on the ground of a misjoinder of canses of action.</p> <p>2. Nor is the same demurrable for want of an allegation that the defendant debtor has not other property sufficient to satisfy the claim,</p> <p>3. Nor is it necessary in such case to reduce the debt to judgment and have a return of nulla bona to the execution in order to maintain the action, the courts under onr present system having the jurisdiction of courts of law and courts of equity, and therefore competent to give full relief in one action.</p> <p>■A And where the alleged fraudulent conveyances are made to several grantees, they ail have an interest in the subject matter, and are necessary and proper parties in order to a final determination of the controversy.</p>

MotxoN to set aside an order of sale, At spring term, 1860, of the court of equity of Moore county, a petition was filed in the name and on the behalf of the parties now complaining for the partition by sale of three several tracts of laud held by them as tenants in common. The lands were sold under a decree, and bought by the several defendants, who have paid therefor, and received their title deeds.

Civil ActioN for damages tried at Fall Term, 1880, of Mecklenburg Superior Court, before Seymotfr, J. In his complaint the plaintiff states bis case to be as follows: That the sheriff of his county having an execution against him sold bis land, and the defendant, Sykes, became-the purchaser; and the sale being by the acre, it became necessary to have a survey in arder to ascertain the exact number of acres, which survey the sheriff-and purchaser employed the defendant,…

<p>Practice — New Trial.</p> <p>Where the facts of a case are so meagre and uncertain as that this court cannot in justice to the parties pass upon the question raised in the pleadings, a new trial will be granted.</p>

MotioN to vacate a judgment heard, in a case pending in JoNes Superior Court, at Chambers in Wilson on the 9th of March, 1880, before Avery, J. The court allowed the motion and the plaintiff appealed.

<p>,Evidence — Proof of Handwriting — Subscribing Witnesses — ■ Claim and Delivery — Contract</p> <p>1. Where the maker of an instrument is out of the state and the subscribing witness thereto is dead, proof by one who saw them sign the same is competent to establish the fact of its execution.</p> <p>3. In claim and delivery it was in evidenee'that the property could not be delivered in specie and the plaintiff was permitted to show its value to aid the jury in assessing his damages ; Held no error.</p> <p>3. In such action the defendant claimed a gray mare under a bill of sale executed in February, conveying “ one gray horse, also one black horse and oue gray mare,” and the plaintiff claimed the same mare under a bill of sale executed in May following, conveying “ two horses one a bay and the other a gray mare,' and the said tnare was there» Upon delivered to plaintiff; Held-, that the plaintiff is entitled to recover.</p>

<p>Section 343 — Transaction with person deceased..</p> <p>Where a. witness is incompetent under section 343; of the code, to testify as to a? transaction between himself and a person deceased, it is error to receive the witness’’ testim-ouy of his subsequent unsworn declarations, made to others, in regard to the same- transaction.</p>

<p>Civil Action tried at Spring Term, 1880, of Meoklen-burg" Superior Court, before McKoy, J.</p> <p>Judgment for defendants, appeal by plaintiff.</p>

<p>Civil Action, tried on appeal from a justice’s judgment, at Fall Term, 1880, of Mooue Superior Court, before Avery, J.</p> <p>The action was commenced on the 19th of February, 1875, and the plaintiff declared on a note under seal for sixty-three dollars and eleven cents executed by the defendant to Mc-Neill & McLeod, who were partners in business, on the 24th day of April, 1862, and assigned to plaintiff in 1866.</p> <p>The defendant set up in his answer by way of counterclaim an open account in favor of defendant against McKoy MeNeill, a member of said firm of McNeill & McLeod, the first item of which bore date January 28th, 1863, and the last, February, 3866. The defendant also relied in his answer upon the plea of payment.</p> <p>The plaintiff replied and pleaded the statute of limitation to the account. It was agreed that McKoy McNeill left the state of North Carolina in the year 1869, and has since resided in the state of South Carolina.</p> <p>The defendant Gilchrist was then introduced in his own behalf, to prove the justness of his account, and while he was under examination, his counsel proposed to ask him the question : “ Have you paid the note sued on; if so, when and how?” The plaintiff’s counsel objected on the ground that the defendant was under the provisions of chapter 183, act of 1879, incompetent as a witness to prove that the said note was paid. The objection was sustained and the defendant’s counsel excepted. Defendant’s counsel then proposed to show by witness that Mrs. Jane McNeill offered to pay the account in 1864, but the witness told her not to do so ; that it could be credited on the note sued on. The plaintiff’s counsel objected; the objection was sustained, and defendant’s counsel excepted.</p> <p>Mrs. Gilchrist, the wife of the defendant, was then introduced on the part of her husband to prove, in contradiction of the testimony of Mrs. McNeill who had sworn that the account had been paid, that only a part of it had been liquidated, and the defendant’s counsel proposed to show by her that in conversation with said Jane McNeill, witness said “ I cannot pay for the barrel,” (meaning a barrel which she had got from Mrs. McNeill), and Mrs. McNeill replied, “ there is an account between Mr. Gilchrist and Mr. MeNeill, and he owes Mr. McNeill a note, and it can be settled by them.” The testimony was objected to by the plaintiff’s counsel, the objection was sustained, and the defendent excepted.</p> <p>The court held that the account was barred by the statute of limitations and the jury returned a verdict in favor of the plaintiff, upon which judgment was rendered against the defendant for the amount of the note and the interest subject to the scale, as provided by law, and the defendant-appealed.</p>

<p>Motion by plaintiff to retax costs beard on -appeal from the decision of the clerk, at Fall Term, 1879, of RICHMOND Superior Court, before Seymour, /. ’</p> <p>The plaintiff appealed from -the ruling of the court below.</p>

<p> AirMívation and Awards </p> <p>2. Delivery of a copy of an award to the parties is not necessary where the submission contains no such stipniation, and where the parties were present when it was signed, and understood its provisions.</p> <p>2. Where the agreement was to refer the matter in dispute “-to two disinterested men together with A as surveyor, with privilege to call in a third party,” &c.; Held that the reference is to two arbitrators only with liberty to call in another^ and the surveyor is designated to aid and not to act as one of them.</p> <p>8. An award which fixes with accuracy the terminal points of a disputed line between adjacent land owners, and its course and distance, is not. obnoxious to the allegation of uncertainty. A simple response to the inquiry submitted, in analogy to a jury verdict, is sufficient.</p> <p>4. Submission and award constitute an executory agreement, and certainty to a common intent is all that is required in the award to admit of its specific enforcement.</p> <p>5. Only sueh evidence as will enable this court to pass upon the ruling to which exception is taken below, should be set out in the case.</p>

Civil Action, tried at Fall Term, 1880, of Person Superior Court, before Eure, J. The action was brought by the plaintiff to recover damages of the defendant for ponding water over his land, the ponding being caused by the erection of a mill-dam on a stream running through plaintiff’s and defendant’s lands, which adjoin.

<p>Civil Action for damages tried at Fall Term, 1880, of Yadkin Superior Court, before McKoy, J.</p> <p>Judgment for defendants, appeal by plaintiff.</p>

Civil ActioN of claim and delivery tried at Spring Terra, 1880, of Beaufort Superior Court, before Graves, J. The aetion was brought by the pi intiff to recover the possession of two seines, the one known as the 700 yard seine, and the other as the 1200 yard seine,- which the plaintiff alleged had been unlawfully taken- from him and the possession thereof unlawfully withheld by the defendant firm.

<p>Field — Murninff Woods — Penalty.</p> <p>A field grown up-in broom-sedge and- wire-grass, surrounded" by an old fence and used as a pasture, is not “woods within the meaning of the statute, Bat. Rev. ch. 13, § 1^ and the owner burning off the samé-is not liable to the penalty imposed by the act for an alleged injury to-an adjoining proprietor.</p>

Civil Action brought by the plaintiffs against the tier fendant to recover damages for an alleged .unlawful entry upon and occupation of certain real estate in the city of Wilmington, tried at Fall Term, 1880, .of New Hanover Superior Court, before Gudger., J. Eli W. Hall, the owner -of the lots on which the alleged trespasses -were .committed, died in 1865, leaving a will, and in an insufficiently executed codicil attached thereto appointed Edward D. Hall, executor, who was…

Civil Action tried at August Special Term, 1880, of DupliN Superior Court, before SchencJc, J. This action begun before a justice of tiie peace and re* moved by appeal to the superior court is to recover the-value of certain cattle, talcenby the defendant from the plaintiff’s-possession and converted to his own use.

Special Proceeding commenced in the probate court and heard on appeal at December Special Term, 1880, of Robeson Superior Court, before Avery, J.… Held: that as it appeared from the pleadings, that the defendant.E. C. Wiggins was the wife of the defendant C. W. Wiggins, that was a statement of a sufficient reason for making her a party defendant, and that it was not necessary under the provisions of section 62 of the code to set forth in the complaint that the said E. 0.

Civil ActioN to recover land tried at Fall Term, 1880, of Chatham Superior Court, before Eure, J. A jury trial was waived, and the cause was submitted upon a case agreed, which is as follows, to-wit: 1.

PetitioN to rehear filed on the 5th of August, 1879, and heard at January Term, 1881, of The Supreme Court. This is a petition to rehear the decision of this court at June term, 1879, reported in 79 N. C., 54, in an action to recover the possession of land.

<p>Injunction — Trust Fund — Confiding Testimony.</p> <p>An injunction will be continued until the hearing to retain eoutrol of a trust fund in dispute, where the plaintiff in the action seeks to have a judgment reformed and the validity of an assignment determined, alleging that the same was procured by fraud which is denied in the answer, and where the testimony bearing upon the question is conflicting.</p>

<p> Injunction and Receiver on motion of defendant in Ejectment. </p> <p>The right to take under the control of the court a disputed fund liable to waste when suffered to remain in the hands of a defendant, extends also to a plaintiff who takes it from the defendant and whose possession threatens a similar injury to the latter ; Therefore, where the plaintiff sues in foi'ma pauperis to recover land, and during the pendency of the action takes possession of a part thereof and resists the re-occupation' by defendant, an order for an injunction and receiver to take control of the usurped premises and secure the rents and profits upon defendant’s application'was properly granted.</p>

<p>Injunction — Court directs, sale wider ¿rust deed, when.</p> <p>An injunction to restrain the sate of land eonveyecf in a deed to secure a debt will be granted under the equitable jurisdiction of the court» where the parties dealing together have settled their accounts and a note secured by the deed given for the estimated balance, and where fraud is alleged to have been practiced upon the mortgagor or trustor in such settlement. A sale by the- trustee of the property convoyed will not he permitted until tlie amount due is ascertained under the direction of the court.</p>

Motion by defendants, (the bank and E. E. Burris, its president), for the appointment of a receiver heard at Fall Term, 1880, of New Hanover Superior Court, before Gud-ger, J- The motion was denied and the defendants appealed.

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

Civil Action tried at August Special Term, 1880, of Rowan Superior Court, before McKoy, J. The plaintiff sues to recover the value of a portion of a stamp mill, used for reducing gold ore, which is withheld and appropriated by the defendant. The defence set up is a denial of the plaintiff’s right and an assertion of property in the defendant. During the trial before the jury several exceptions were taken by the defendant, one only of which is it necessary to consider.

<p>Evidence — Fraud—‘Material Mailer:</p> <p>1. Though the general rale in an action upon a note forbids the introduction of evidence of another and distinct transaction, yet where the two contracts are entered into about the same time to effect a common object, the terras and conditions of the one may he admitted as evidence to be considered by the jury in passing upon those of the other.</p> <p>2. Proof of fraud must come from the party alleging it, and to avoid a contract the fraudulent representation must bo of material matter re» suiting in damage. And if the fraud be such that had it not been practiced the contract would not have been made, then it is material 5 but if it be shown that the contract would have been made without fraud practiced, then it is not material.</p>

Civil Action tried at Fall Term, 1880, of Jackson Superior Court, before Gilmer, J. The action was brought to recover from the defendants, R. M. Henry and Marcus Erwin, as obligors, the amount of a single bill alleged to be executed by them to the plaintiff for the sum of four hundred and forty dollars, due twelve months after date, with interest from date, and dated March 18th, 1857. Its execution was witnessed by Z. B. Vance.

<p>Motion to vacate a judgment heard at Fall Term, 1880* of Wake Superior Court, before Graves, J.</p> <p>The motion was allowed and the-plaintiff appealed.</p>

<p>Sheriff — Sale under several executions — Purchaser.</p> <p>Where a sheriff has five executions in his hands against the same defendant and sells his lands under four of them but was res!rained by injunction from selling under the other also, it was held that the latter could not be called in to aid the title of the purchaser, nor the sheriff be-required to recite it in his deed.</p>

PROCEEDING to enforce an agricultural lien, removed from Richmond county and tried at Fall Term, 1380, of StaNLY Superior Court, before Seymour, J. 'There was a verdict for plaintiff, and from the refusal of the judge to give judgment thereon for the reason set out in the opinion of this court, the plaintiff appealed.

MotioN in a proceeding under the landlord and tenant act for an inquiry to ascertain damages sustained by defendant for his eviction, heard at August Special Term, 1880, of Rowan Superior Court, before McKoy, J. Motion refused, judgment in favor of plaintiff for costs, appeal by defendant.

<p>Divorce — Sufficiency of Complaint.</p> <p>In a divorce suit where the wife alleges ill-treatment by her husband, but fails to state the circumstances connected with the assaults charged and the causes which brought them on, it is error to render judgment in her favor upon the finding of a single issue that she was ill-treated, thereby rendering her condition intolerable and life burdensome (which is but a conclusion of law). In such case the court cannot determine the sufficiency of the grounds upon whicli her application is based.</p>

<p>Civil ActioN tried at Spring Term-, 1880, of Wayre Superior Court, before Avery, J.</p> <p>This is an action brought by plaintiff’s testatrix to have the defendants declared to be trustees of the lands- described in tlie complaint. The case upon the pleadings and the issues found by the jury is as follows:</p> <p>On the 6th of February, 1867, one Samuel Smith .executed and delivered to Richard Washington a deed for the lands set forth in the complaint in trust to-sell the same-for the payment of the debts therein described, which deed was duly registered. That thereafter, to-wit, at February terra, 1867, of Wayne county court, the plaintiff’s testatrix recovered a judgment against said Smith for a large amount, and on the 19th day o-f August ensuing caused the interest of said Smith in said lands to he exposed' to sale under an execution issued upon said judgment and at said sale became the purchaser at the price of paid the money to, and took a deed in fee from the sheriff, for the interest of said Smith in the land.- That after this on the . day of ., the said Richard Washington died, and upon proper proceedings had for that purpose, in the court of equity for said county, one William G. Morisey, clerk and master of said court, was appointed trustee in place of said Washington, and in pursuance of a - decree in the cause, Morisey as trustee sold the land at public outcry in Golds-boro, when the defendants became the purchasers at the price of three thousand and two dollars, paid the purchase money, and the sale was reported and .confirmed by said court, and under an order thereof a title in fee to the land was made by Morisey as trustee, by deed bearing date March 30th, 1867. That plaintiff’s testátrix was not a party to said proceedings.</p> <p>After this last sale and confirmation, to-wit, on the 29th day of December, 1867, Smith was ejected from the laud by the defendants, who have held the continuous adverse possession of the same ever since.</p> <p>On the 23rd day of January, 1871, plaintiff’s testatrix commenced an action in nature of ejectment in the superior court of said county against the defendants for the recovery of the land, on the ground that the deed of trust from Smith to Washington was fraudulent and void, which action was finally decided against the plaintiff at June term, 1876, of this court. The present action was commenced on the 19th day of March, 1877.</p> <p>To the issues submitted, the jury returned the following finding:</p> <p>1. What is the amount of indebtedness in said deed of trust? Ans. $18,761.23, of which $8,943.08 is principal, and $9,818.35 is interest.</p> <p>2. What is the value of the land in controversy? Ans. Three thousand seven hundred dollars.</p> <p>3. What is its annual value? Ans. Two hundred and seventy dollars.</p> <p>4. What was the value of the personal property embraced in said deed of trust at the time it was closed ou the 29th day of December, 1867? Ans. Three hundred dollars.</p> <p>The testatrix died after the commencement of the action, and by her will which was duly admitted to probate appointed the plaintiff her executor and devised to him the lands in controversy.</p> <p>The defendants for defence say that the plaintiff acquired no title to her interest in the lands in dispute by her purchase at the sheriff’s sale, under the execution in her favor against Smith and others, for Smith had no interest at the time liable to execution, and that the plaintiff’s action is barred by the statute of limitations. His Honor gave judgment for the defendants and the plaintiff appealed.</p>

CONSTRUCTION of a will heard at Fall Term, 1879, of Union Superior Court, before Buxton, J. Josiah Craige died in 18G3 leaving a will in which are contained the following bequests: Item 2. “ I give and bequeath unto my sister-in-law, Sarah E. Howie, and my brother-in-law, George R. Winchester, all that part of my property that I now have, that I got with or by my wife, to be equally divided between them, to be separated from my other property by Eliza Winchester and Sarah E.…

Civil ActioN tried at Fall Term, 1880, of Johnston Superior Court, before Avery, J. This action was brought to recover the amount of a policy of insurance issued by defendant company, and the jury rendered a verdict in favor of plaintiff and the defendant appealed.

<p>Claim against the State heard at January Term, 1881, of The Supreme Court.</p>

Motion under section 133 of the Code to set aside a judgment, rendered in the above entitled action, heard at Spring Term, 1880, of Robeson Superior Court, before Eure, J. The following are the facts found by Iiis Honor: At fall term, 1876, of the superior corn! of said county the plaintiff obtained a judgment against the defendant in manner and form following : “ It appearing by complaint of plaintiff in the above entitled cause that the defendant is justly due and indebted…

<p>APPLICATION for an injunction in an action pending in Edgecombe Superior Court, heard at Chambers on the 21st of April, 1880, before Qudger, J. ' .</p> <p>Injunction refused and restraining order dissolved, and the plaintiffs appealed.</p>

<p>Motion of plaintiff made before the clerk for execution-to issue upon a judgment against the defendant, heard on appeal at Spring Term, 1880, of Rakdolph Superior Court, before Seymour, J.</p> <p>The clerk allowed the motion and from his order the defendant appealed, and the same was reversed by the judge, and the plaintiff appealed.</p> <p>Cited Blum v. Ellis, 73 N. C., 295; Bump on Bankruptcy, 142, 19S et seq; Datoson v. Eartsfield, 79 N. 0., 334; Dixon v. Dixon, 81 N. G, 323.</p> <p>discussed the authorities referred to by the plaintiff, and insisted that- the matter had been adjudicated against the plaintiff in the district court.of the United States.</p>

Transyiwania Superior Court,. b.y Gilmer, J. The plaintiff being a creditor of Leonard Cagle, deceased,, brought this action against the defendant as- administrator of said Leonard, and in his own, right,.returnable to fall term, 1873, of said court.

Civil Action, tried at Spring Term, 1880, of Cherokee Superior Court, before Schenclc, J. The plaintiff alleges that he is the purchaser of the equitable interest of one J. B. Standridge in the lands described in the pleadings; tfyat Standridge had purchased the same from John M. Martin, who had paid the purchase money to the state, and had assigned to the said Standridge the certificate of purchase and valuation, which he had obtained for said land; that the defendant,…

Civil Action to recover land tried at Spring Term, 1880, of FRANKLIN Superior Court, before Seymour, J. A jury trial being waived, the judge found the facts as follows: Dr. Thomas Davis of Franklin county died in 1862, leaving a last will and testament by which he directed his land to be sold by his executors, N. B. Massenburg and John C. Davis, who were appointed by him executors of his will. Massenburg alone qualified, and Davis renounced on the 22d day of January, 1863.

<p>Description in Deed — Covenant of Seizin.</p> <p>An exception in a deed conveying land, oE “eighty acres, more or less, heretofore conveyed to L, joining said L’sland,” is merely descriptive, and not oí the essence of the contract, so as to involve the breach o£ a covenant of seizin by the grantor, where the portion heretofore conveyed is found upon a survey to be one hundred and seventy acres.</p>

Civil Action to correct a deed tried at Pall Term, 1880>, of PERSON Superior Court, before Eure, J. Judgment upon the “case agreed ” was rendered in favor of plaintiff, from which the defendant trustee (Briggs) appealed.

<p>Motion in the cause heard at Spring Term, 1880, of UNION Superior Court, before McKoy, J.</p> <p>The plaintiff, assignee of John S. Pardue, brings his action against the widow and heirs at law of Mosely Rogers, deceased, to have a deed absolute in form, and conveying the tract of land described in the complaint, declared to be a security for debt, and to be permitted to redeem the same. At spring term, 1872, a decree was passed determining the rights of the parties and the amount of the encumbering debt, so much oí which as bears upon the present controversy is as follows:</p> <p>“It is thereupon considered, adjudged and decreed by the court now here, that upon John N. Davis, or any one for him, paying into the office of the superior court clerk of Union county, for the use of the defendants and for their benefit Equally, the sum 'of $311.19, on or before the 26th day of April, 1872, or within twenty days thereafter, and all costs to be taxed by the clerk, including an allowance of five dollars for his report, then and in that event, a conveyance of the land mentioned in the pleadings, is hereby decreed from the defendants, each and all of them, to the plaintiff, John N. Davis; but inasmuch as many of the defendants are minors, it is further declared, adjudged and decreed, pursuant to law, (Revised Code, ch. 32, § 24,) that upon John N. Da^ is complying with the terms of this decree on his part, the effect of this decree shall be to transfer to the said John N. Davis, the legal title of the said property, to be held in the same plight, condition and estate, as though the conveyance decreed was in fact executed, and shall bind and entitle the parties, in the same manner and to the same extent as the conveyance would, if the same were executed according to the decree,”'with an order for its enrolment. .,</p> <p>There is no direction for a sale upon the plaintiff’s failure to redeem, and in this respect the decree is incomplete and open to amendment if it becomes necessary.</p> <p>The present proceeding was commenced by notice of an intended motion for an order of sale of the land, served on the plaintiff September the.27th, 1876, followed by another notice, served September 22d, 1877, of a motion to be made to strike from the docket the following entries in the cause,:</p> <p>“Reed, of G. W. Flow, clerk, three hundred and eleven dollars and nineteen cents, in full of this judgment, this 14th of Maj1', 1872.</p> <p>(Signed) Robt. PL Pakdue.”</p> <p>“ May 11th, 1872, satisfied and paid to office $350.”</p> <p>Numerous affidavits were offered in support of the motion for reforming the decree to which the plaintiff opposed his own answer on oath, in which he states in general terms that the conditions of the decree were fulfilled by his paying the money within the prescribed time, and that on May 11th, 1872, he paid to the clerk in currency $350, and took and was ready to produce his receipt therefor.</p> <p>Upon this conflict of testimony the court directed the following inquiry to be submitted to the jury: “lias the decree of the superior court of $311.19 in this case made at spring term, 1872, been paid,” to which the jury responded in the affirmative. On the trial of the issue the plaintiff testified that on the day stated he paid into the clerk’s office the amount specified in the decree, with costs, except the sum of $138, for which he gav.e his individual note to the clerk, and had afterwards paid that; that th,e money first paid in was borrowed from R. H. Pardue, administrator of the intestate, Mosely, and the witness ¡produced the adinin-istrator’s acknowledgment of full payment, and the judg-merit docket containing the memoranda set out in the notice of the motion to erase them from the record.</p> <p>R. H. Pardue testified that, at the plaintiff’s instance and for his convenience he accepted the plaintiff’s note for the sum due by the decree ($311.19) executed on May 11th, 1872, to the witness individually, on which nothing has been paid, and be now offers to surrender it; that he never-loaned the plaintiff money, nor was any paid into the office when he signed the receipt on the docket, and this was done solely at his suggestion.</p> <p>The evidence of the clerk was to the effect that the plaintiff and the administrator came to his office together, and the entries were put on the docket by the direction of the former; that no money was paid except for the costs, and that he never had any note of the plaintiff, as stated by him to have been given.</p> <p>Upon this evidence, the court charged the jury that R. H. Pardue, the administrator, was entitled to the money, and payment to him would discharge the plaintiff from liability therefor; that if the plaintiff paid the amount, or gave his note therefor to the administrator, and it was accepted by him, in the absence of a fraudulent intent, and satisfaction of the decree was entered with their concurrence and receipted by the clerk, it would be a discharge of the decree. The exception to this instruction is alone before us, on. the defendant’s appeal.</p>

<p>Construction 0/ deed — -Estate for life in Joint-tenancy.</p> <p>1. The habendum in a deed shall never introduce one who is a stranger to tlie premises to take as grantee, but he may take by way of remainder; Therefore, a deed which in the premises gives a life estate to the mother grantee alone, and in the habendum to her and her children, operates to convey an estate for life to the mother, and an estate for life in joint'-tenancy in remainder to her children.</p> <p>3. The act of 1784, which converted joint-tenancies into estates in common, has reference only to estates of inheritance, (dee following case.)</p>

SPECIAL PROCEEDING for partition of laud commenced in the probate eourt and heard at Spring' Term, 1880, of Sampson Superior Court, before 4vcry, J. The plaintiffs appealed from-the judgment below.

Special Proceeding; for partition of land commenced in the probate court and heard at Fall Term* 1880, of Wayne Superior Court, before Gudger, J. •The plaintiffs appealed from the judgment of the co-urt. below.

<p>Civil Action to recover land tried at Fall Term, 1879, of Robeson Superior Court, before Seymour, J.</p> <p>Verdict and judgment for defendants, appeal by plaintiffs.</p>

Civil Action tried at Spring Term, 1880, of Wayne Superior Court, before Avery, J. In this action, commenced on February 28th, 1876, the plaintiff demands the surrender for cancellation of a deed, conveying the land described in the complaint, executed by him to the defendant in 1862, as he alleges, under duress, the restoration of possession, and damages as rent during the defendant's occupation.

'Civil Action tried at Spring Term, 1880, of Wake Superior Court, before Qudger, J. The defendants appealed from the judgment of the court 'below. See same case, 81 N. C., 356.

<p>Civil ActioN tried at Spring Term, 1880, of Mecklen-burg Superior Court, before McKoy, J.</p> <p>The defendants appealed from the judgment below.</p>

Civil Action to enforce specific.performance of a contract, to convey land, tried at June Special Term, 18,80, of Henderson Superior Court, before Schenclc, J. Defendant appealed from the'judgement below.

Civil ActioN to recover land tried at Fall Term, 1880, of Anson Superior Court, before Avery, J. This was an action for the recovery of the possession of a tract of land, and to show title in themselves the plaintiffs alleged in their complaint, and proved on the trial, that on the 18th of December, 1872, Joseph W. Pond and his wife, the defendant Ellen C. Pond, conveyed the land to plaintiffs by mortgage in which there was a power of sale; and under which they sold the…

Civil Actioh tried at November Special Term, 188Q, of Halifax Superior Court, before Graves, J. The plaintiff, Evans, brought this action, as trustee for the firm of Winfield & Emry, for the recovery of one hundred dollars due by note. The facts appear in the opinion. Verdict and judgment for defendants, appeal by plaintiff.

¡Summary (Proceeding in ejectment commenced before a justice-of Ihe peace and heard omappeal at Fall Term, 1880, •of Halifax Superior Court, before Graves,' J. It was adjudged in the court below that the proceeding ¡be dismissed upon the ground that the justice had no jurisdiction, and the plaintiff appealed.

Summaiiy PROCEEDING in ejectment commenced before a justice of the peace under the landlord and tenant act, and heard on appeal at Fall Term, 1880, of Craven Superior Court, before Graves, J. The defendant moved to dismiss the action for want of jurisdiction in the justice of the peace, and the judge found the following facts: The plaintiffs showed a written agreement between the parties, which agreement was substantially “that plaintiffs had agreed to sell to defendant a…

Civil Action tried upon a case agreed at Fall Term, 1880, of Waice Superior Court, before Graves, J. The following are the facts : On the 18th day of August, 1873, the defendants Russ and wife conveyed by mortgage duly proved and registered to Rufus H. Jones a lot in the city of Raleigh lying between Martin and Hargett streets, containing two acres, to secure a debt due to him.

Special PROCEEDING to sell land for assets commenced before the clerk, and tried at Fall Term, 1880, of CuM-berlaND Superior Court, before Avery, J. The plaintiff, administrator of J. W. Pearce, in his application for a decree of sale of the land of his intestate for the payment of debts, specifies among others a tract known as the “ Pearce Mill Place,” of an undivided moiety of which he alleges the intestate to have been seized and possessed at the time of his death, and…

<p>Mortgagor and Mortgagee — Chattel Mortgage-.</p> <p>A mortgagee who takes possession of personal property conveyed by a chattel mortgage, before default, is answerable to the mortgagor for the value of any reasonable use to which the property is or could have been put. But an injury toa crop resulting from the taking of a mule needed in its cultivation is too remote to be recoverable as consequential damages.</p>

<p>MotioN to set aside a judgment heard at Spring Term, 1880, of BunCOMbe Superior Court, before SAienck, J.</p> <p>Motion refused and defendant appealed.</p>

<p>MoxxoN heard at Fall Term, 1880, of Mecklekbueg Superior Court, before Seymour, J.</p> <p>The plaintiff appealed from the judgment below.</p>

MotioN to vacate attachment heard on appeal at Spring Term, 1880, of Cumberland Superior Court, before Eure, J. The motion was allowed, action dismissed, and the plaintiff appealed.

Proceeding to revise and correct the tax list heard at Fall Term, 1880, of Alamance Superior Court, before Eure, J. The plaintiff company applied to the defendant commissioners for a correction of the tax lists and moved to strike therefrom the property mentioned in the opinion of this court; the motion was refused and the plaintiff appealed to the superior court, where the ruling was reversed and the defendants appealed to this court.

<p>Civil ActioN tried at Fail Term, 1880, of Richmond Superior Court, before Avery, J.</p> <p>The plaintiff alleges :</p> <p>]. That .in November, 1870, one A. A. McKethau, having .recovered-a judgment against him in Cumberland superior court, caused his land, lying in Richmond county, to be levied upon and advertised for sale thereunder; that wishing to save his land, he placed an .amount of money sufficient to satisfy said judgment in the hands of the defendant, Charles W. Bullard, who agreed to attend the sale as the agent of the plaintiff, and buy in the land for him; that said Charles W. did attend the sale and buy the land with the plaintiff’s money, but took the deed in his -own name; that by pretending, at the sale, to be buying it for the plaintiff, the said Charles VV. succeeded in suppressing the bidding for the land and thereby was enabled to buy it at an under-value.</p> <p>2. That on the 2'3d of January, 1873, the said defendant, Charles W. Bullard, fraudulently induced the plaintiff to make him a deed to the same land, by representing to him that it was only an agreement to submit all matters of account between them to arbitration — the plaintiff at the time being so drunk as to be incapable of understanding what he was doing.</p> <p>3. That in 1870, the plaintiff gave a mortgage to the said defendant, Charles W., to secure advances for agricultural purposes, under which he had received some small advances; but that said defendant had taken possession of his land : and the rents thereof, together with some payments in money, had not only been sufficient to discharge said advances, but to bring the said 'defendant in debt to the plaintiff.</p> <p>Thereupon the plaintiff asks that the two deeds — -the one from the sheriff to said defendant, and the other from himself to the defendant, dated the 23d of January, 1873 — may be decreed to be cancelled; that he recover of the defendants the possession of the lands, and that an account be taken of the rents received by said defendant and the payments made him.</p> <p>The defendant, Charles W., admits in his answer the execution of the mortgage as alleged by the plaintiff, but says there is a large sum due under it to himself, for advances made the plaintiff'; and he denies all the other allegations made in the plaintiff’s complaint.</p> <p>1 Exc. When the case was called for trial and before the jury were empanelled, the plaintiff referred to an affidavit which he had filed at spring term, 1875, alleging that an inspection of the deed of the 23d of January, 1873, was necessary to him on the trial of his cause; and to a motion then made that the defendant should be required to produce it — which motion had been continued by the court; and he moved the court'to order the defendant to produce the deed, alleging that the face of the deed itself furnished some evidence of the fraud practiced in procuring its execution. The defendant objected to this upon the ground that the plaintiff had not prosecuted his motion ; and insisted that time should be given him to answer the affidavit. The judge then inquired of the defendant’s counsel what reason the defendant would assign in his answer, if allowed the time to make one, why the deed should not be produced and inspected as asked for, saying that if the reason seemed a valid one, he would extend the time; to which the counsel replied that he expected to set forth in his answer that the allegations of fraud in the affidavit and complaint were not true. The judge thereupon refused to extend the time to answer and ordered that the deed be produced; to which the defendants excepted.</p> <p>2 Exc. The plaintiff, being introduced as a witness in his own behalf and having testified that he was indebted to A. A. McKethan, was about to speak of said McKethan’s having obtained a judgment against him in Cumberland superior court, when the defendants objected. The plaintiff then offered in evidence a transcript of such judgment of the superior court of Cumberland, which had been filed and docketed in the superior court of Richmond county ; to which the defendants objected, and upon their objection being overruled and the said transcript admitted in evidence, they excepted. The plaintiff then testified that in November, 1870, he gave to the defendant, Charles W. Bul-lard, three bales of cotton to sell and satisfy the McKethan judgment; that he and said defendant went together to Fayetteville in. January, following, and he saw Bullard pay ■sixty-five dollars to McKethan, who .agreed to accept that sum in discharge of his judgment, except the costs ; that the •sale of plaintiff’s land, under this judgment, took plaoe in April next after the payment of the money in January.; that he did not attend the sale, but said defendant, Charles W., agreed to do so and buy the land for him. The plaintiff then offered in evidence the deed of the 23d of January, 1873, being that one which the said defendant had produced at the trial under the order of the court, and testified that he first saw the paper at á place called “ Laurel Hill,” where the said Charles W. was doing business, and where he had lived up to a short time before, when he and his family had taken possession of plaintiff’s house. In regard to the manner of his taking possession of his ho'use, the plaintiff testified that, on one occasion, previous to the execution of the •deed of the 23rd of January, the other defendant, W. W. Bullard, had come to his house and induced the plaintiff to •return home with him; and on the next day, by one pretense or another, had prevailed on him to go to several other places with him, .so that plaintiff did not reach his own home until after dark on the second day; that, upon getting there, he found the defendant, Charles W., and his family, occupying his house, and his own things removed to .another apartment; that this was the first intimation he had of any purpose to take possession of his place, and he had never consented that the same should be done; and the fact that it was done had the effect to cause him to drink to great excess; that soon thereafter, the defendant, Charles W., said to plaintiff that lie wanted the matters between them settled and was willing to compromise them, and proposed that they should go together to Laurel Hill, to which plaintiff assented ; that he was drunk before he started, and after getting to the place (which they did about 0 o’clock,, a. m.), he got more spirits from sard defendant and drank it.</p> <p>3' Exc. The plaintiff then proposed to prove, by himself as witness, that the said defendant had a bar-room at Laurel Hill, to which the defendant objected, and upon his objection being overruled,, excepted. Plaintiff then testified that said defendant did keep a bar-room at the place, and that he furnished' the plaintiff with spirits therefrom on that day, by the use of which he became so drunk as to be incapable of knowing what he did; and that while in that condition, he was induced to sign the deed, which had been prepared by J. C. Davis, who was the attorney for the defendant, and whose name is signed as the subscribing witness to the same.</p> <p>4 Exc. The plaintiff also proposed to ask this witness what consideration, if any, he received for executing the deed, to which the defendants objected, and upon their objection being overruled, excepted. The plaintiff then testified that he did not receive a cent in the way of consideration for signing the deed, and was not to do so-. -</p> <p>5 Exc. On his cross-examination, the-plaintiff was asked by defendants’counsel whether two-thirds of the cotton furnished to Bullard did not belong to the.plaintiff’s tenants and the proceeds thereof paid to their use ? Whether the proceeds of the other third had not be.en, by the express agreement between the parties, applied to plaintiff’s indebtedness to said Bullard ? Whether he was not still indebted to Bullard for supplies furnished under the mortgage? Whether he had not got his supplies from Bullard for two years before the deed was made; and whether the deed was not madein consideration of bis indebtedness to Bullard ? All of which questions he answered in the negative, except that he admitted that he had received from Bullard some supplies which had been more than compensated for by the use of his land by Bullard. On his re-direct examination, he was asked by his counsel. whether he owed said Bullard anything before the execution of his mortgage to him; to which the defendant objected, and upon his objection being overruled, excepted. Plaintiff then testified that he owed Bullard nothing prior to tlje- execution of the mortgage; that about the time the deed was executed at Laurel Hill, Bullard claimed the plaintiff owed him some two hundred and fifty dollars, but would never furnish witness a statement of his account; and that in fact, Bullard was at the time indebted to him. A. A. McKethan was then introduced as a witness for the plaintiff, and, after testifying to the fact that he had recovered the. judgment against the plaintiff, and the levy of the execution upon the land, and of his having written to the plaintiff of his 'willingness to accept from him the principal of his debt and the costs, he stated that plaintiff and Charles W. Bullard came together to Fayetteville and paid him sixty-five dollars, whieh was his principal; and that be wrote the sheriff, whenever the costs were paid, to return the execution satisfied ; and that there was some talk, then, between the plaintiff and Bullard whether it would not be better for the plaintiff to have the land sold. On his cross-examination, this witness stated that the debt against the plaintiff belonged to himself alone, and not to A. A. McKethan & Son, which firm was composed of witness and his son ; that his son had, of course, authority to bind the firm, but had no general authority to manage the business of witness outside of the firm. The defendants' counsel then handed witness a letter, which, after inspecting, he said was in his son’s handwriting, but that he had never authorized him -to write it and that h-e had never seen it before — the letter was in the firm name.</p> <p>6 Exe. The defendants'' counsel then offered to read the letter to the jury, alleging that it contained matter contradictory of his evidence on trial; but on objection by the plaintiff, was not permitted to do so-, and thereupon the}'- excepted.</p> <p>7 Exc. John A. Long was introduced by the plaintiff, and testified that he attended the sale of plaintiff’s land by the sheriff, and made'a bid for it. That C. W. Bullard took him. to himself, and told him that he was bidding for the plaintiff and asked him not to bid against him, which he agreed to do. On his eross examination, the counsel for the defendant asked the witness several questions with a view to contradict or discredit him. Maj. Long was then introduced by the plaintiff, and testified that he attended the sale with the intention of buying the land, but did not bid. The plaintiff’s counsel then proposed to show that the reason for his Hot bidding was, that when he went up to the place of sale, something was said in the crowd standing around (which crowd was composed of the defendant, C. W. Bullard, and seven or eight others) that induced him to believe that said Bullard was bidding for the plaintiff; which evidence, as explained by counsel, was offered with the double view of corroborating the testimony of the previous witness, John A. Long, and of showing that the impression that Bullard w.as buying for the plaintiff was either created by him, or allowed by him to exist; and thereby he obtained the land at less than its value. The defendant’s objection was overruled and they excepted. Witness then testified that he did not bid for the land, because he heard it said iu a crowd of seven or eight persons standing at the place of sale (C. W. Bullard being one of them) that said Bullard was bidding for the plaintiff; that he could not remember whether Bul-lard made the remark or some-one else, but that it was said when he "was present, standing close around ; and but for the remark, witness would have given much more for the land than it brought.</p> <p>8 Exe. I). W. Morrison was the plaintiff’s next witness, and testified that he attended the sale for the purpose of buying the land, but did not bid more than once for it. The plaintiff’s counsel then made the same offer of proof and for the same purpose as in the ease of the last witness, when the defendant objected, and, upon their objection being overruled, excepted. Witness 'then stated that he got the impression that the defendant, Bullard, was bidding for the plaintiff from something that was said, either by said Bul-lard or John A. Long, at the place of sale; that it was said "by some one in a company of some eight or ten persons standing about the place — Bullard being one of them. But for this impression, he would have bid more for the land than it brought.</p> <p>9 Exc. The plaintiff then introduced J. C. Davis, the subscribing witness to the deed of the 23d of January, 1873, and after examining him as to its execution and the plaintiff’s condition at the time, and as to what was said about its being an arbitration bond, proposed, in order to corroborate the evidence of the plaintiff, to show by the witness what was said to him by the plaintiff a short time after the transaction, about his having signed the instrument under the belief that it "was only an agreement to submit the matters of account between the parties to arbitration ; to which the defendants objected, but the court overruled their objection ; and the witness then stated that within a week after his signing the deed, the plaintiff came to wdtness aud said to him that it was reported in the neighborhood that he had signed a quit-claim deed to his laud, but that he understood it to be an arbitration bond. Defendants excepted.</p> <p>10 Exc. W. J. Everett was next introduced by the plaintiff, and, after qualifying him to speak as an expert as to handwriting, and his ability to distinguish genuine from spurious signatures, the plaintiff’s counsel handed him the deed executed 23d January, 1873, together with an affidavit which the plaintiff had made in the cause, and proposed to ask him whether the signatures to both were alike (it being •admitted that plaintiff had signed both), with a view to corroborate the testimony of the plaintiffand thé witness, Davis, (both of whom the defendants’ counsel had attempted to discredit on their cross-examination) as to the condition of the plaintiff when he signed the deed. To this the defendants objected, but the court admitted the evidence; and witness then testified to a want of resemblance between the two signatures. Defendants excepted.</p> <p>11 Exc. N. A. McNair was introduced, ana plaintiff proposed to ask him the value of the land in controversy, in order to show that the price paid by defendant, Bullard, at the sheriff’s sale, and the consideration stated in the deed of 23rd of January, were grossly inadequate; and as tending to show a suppression of bidding at the sale and a fraudulent procurement of the deed. The defendants objected, objection overruled, and witness testified that the land was worth some $3,000 or $3,500. Defendants excepted.</p> <p>12 Exc. The defendants’ counsel asked that an issue might be submitted to the jury as to whether the alleged agreement, on the part of the defendant, C. W. Bullard, to purchase the land for the plaintiff at the sheriff’s sale, was in writing; but His Honor declined to submit such an issue upon the ground that the plaintiff had not alleged, or attempted to prove, that there was any such agreement in writing; on the contrary, alleged that it was by parol. Defendants excepted.</p> <p>13 Exc. Amongst other instructions not excepted to, His Plonor charged the jury as follows : “ It is a rule of law that a party who alleges fraud must prove it so as to create a belief in the minds of the jurors that the allegation is true;, and the burden of proof is ordinarily on the plaintiff alleging fraud and seeking to set aside his deed. If, however, the relation of mortgagor and mortgagee has been shown to exist, and it also appears that, while that relation was subsisting, the mortgagor conveyed his equity of redemption in the morgaged property to his mortgagee,'* then the burden of proof would be shifted from the plaintiff, and the presumption of law would arise that the conveyance is fraudulent, but this presumption, could be rebutted by the defendants’ showing that the consideration of the deed was a fair and adequate one and that there was no fraud practiced.” The defendants excepted.</p> <p>The jury found all the issues in favor of the plaintiff, and from the judgment thereon the defendants appealed.</p>

Civil. Action a-nd MgtioN in the cause. heard at Fall Term, 1879, of Buncombe Superior Court, before Graves, J. The two cases between the same parties touching the same subject matter, being treated as one action, were tried together.

CONTROVERSY submitted without action under C. C. P. ■§ 315, and heard at Fall Term, 1880, of Alamance Superior Court, before Eure, J. The controversy presented for determination in this case arises upon the construction of the fourth clause, taken in connection with others, of the will of Seymour Puryear, which is in these words ; 4th Item. “ I give and bequeath unto my daughter Margaret Newlin household and kitchen furniture and stock, and one tract of land known as the…

Apfeau from an order granting an injunction made at Chambers, in Waynesville, on tbe 27th of-July, 1880, in an action pending in Swain Superior Court, by Qudger, J, The circumstances under which tbe injunction was granted are as follows : The plaintiff began her action on the 23rd of June, 1880, by summons returnable to fall term of said court, and on the 27th she moved for an injunction re^ straining the defendant from selling certain land, for the reasons set forth in an…

Civil Action tried at June Special Term, 1880, of Henderson Superior Court, before Schenclc, J. The action was commenced before a justice of the’peace and founded upon two notes under seal, both dated May 20th, 1875, due one day after date and payable to McMur-ray & Davis.

PROCEEDING to assess damages alleged to have resulted from drainage, heard at Spring Term, 1880, of Martin Superior court, before Graves, J. The plaintiff instituted this proceeding, by summons returnable before the clerk, against tlie defendant as owner of a tract of land adjoining his own, and of a lower level, to obtain a right of drainage by cutting a canal through it.

<p>Practice — N'on-8nit—Interpleader—Statute of Presumptions— Evidence- — Insolvency .of Obligor— Credits on Bond.</p> <p>X. Where the plaintiff's complaint set out three causes of action, and on the trial the plaintiff entered a non-suit as to two of them, the non-suits will be treated as a nolle prosequi and the plaintiff permitted to prosecute his action as to the remaining cause of action.</p> <p>3.It is not error to refuse a separate trial to a party who has interpleaded in an action, upon motion made at the trial.</p> <p>3. Upon an issue as to the payment of a bond, where the defendant relied on the presumption of payment arising from the lapse of time, when the evidence is uncontradicted it is the duty of the court to pass upon its sufficiency and not to submit the issue to the jury.</p> <p>4. in an action on a bond, in order to repel the presumption of payment arising from the lapse of time, such a state of insolvency on the part of the obligor must be shown during the entire ten years next after the maturity of the debt as to prove that he did not pay the debt because he could not.</p> <p>5. Where certain credits endorsed on a bond are relied on to talce the case out of the statute, it is necessary for the plaintiff to establish that they were put there at the dates specified, and an admission that they are in the handwriting of the obligee, is not sufficient for the purpose.</p>

<p>Civil ActioN to recover land tided at Spring Term, 1880, of Buncombe Superior Court, before Schench, J.</p> <p>The defendant appealed from the judgment below.</p>

<p>Civil Action tried' at Fall Term, 1880, of Oumeeelan® Superior Court, before Avery, J.</p> <p>The plaintiff appealed from the ruling below.</p>

Special Proceeding heard on appeal at the December Special Term, 1S80, of Robeson Superior Court, before Avery, J. The plaintiff, C. W. Wiggins, administrator of Neil C. Me-Cormac, a lunatic, who died in 1874, and E. C. Wiggins, his wife, one of the heirs at law of the intestate, bring their action against the defendant, Sarah M. McOormac, widow of the intestate and duly appointed his guardian upon the inquisition declaring the lunacy, and the other defendants, his other…

Civil ActioN to recover land, tried at Fall Term, 1880, of Bladen Superior Court, before Avery, J. The plaintiff claimed title under a deed executed to him by W. G. Sutton, sheriff of Bladen county, dated September 1st, 1879. He was a purchaser at the sheriff’s sale of the land in controversy, by virtue of an execution, issued July 3d, 1879.

Motion to set aside an execution and sale thereunder, heard at .Fall Term, 1880, of Union Superior court, before Seymour, J. The motion was refused and the defendant, Robert Simpson, appealed.

<p>MotioN to amerce a sheriff heard at Spring Term, 1880, of Robeson Superior Court, before Eure, J.</p> <p>This was a motion to amerce the defendant as sheriff of Robeson county for not making due return of an execution.</p> <p>The facts as found by His Honor are as follows ■: At .spring term, 1878, of said court Enos Smith, the plaintiff -in the ease obtained a judgment against Benjamin Godwin for the sum of $97.68 and execution was duly issued upon said judgment and placed in the hands of the defendant. On the 24th of April, 1878, J. L. Infnan obtained a judgment against the plaintiff, Enos Smith, for the- sum of $257 and costs, and on the 8th of June, 1878, execution was issued on this last judgment and placed in the” hands of the defendant as sheriff. On the same day Benjamin Godwin, the defendant in' the Smith execution paid to the said McMillan as sheriff the sum of $109.52, and the said sheriff entered his return .on the execution of Inman against Smith as follows : “ Received of B. Godwin the sum of $109.52 in part payment of this execution, the 8th of June, 1878. -</p> <p>(Signed,) R. McMillan, Sheriff.”</p> <p>And McMillan gave Benjamin Godwin a receipt for the said amount. .On the same day, (8th of June, 1878,) the said McMillan endorsed on the execution in favor of the plaintiff, Smith, against Benjamin Godwin as follows; “Satisfied by receiving from B, Godwin a receipt for the sum of $109.52, the amount paid by the said Godwin to me on the 8th day of June, 1878, in favor of J. L, Inman and against Enos Smith, the plaintiff, in this execution for. the sum of $250 and interest on $171.95 from April 24th, 1878, until paid and $2.65 costs, June 8th, 1878.”</p> <p>(Signed,) ■ R, McMillan, Sheriff.</p> <p>Both of the executions were returned by R, McMillan to the fall term, 1878, of the superior court of said county with the foregoing returns thereon. Smith was not notified by •the sheriff that he had the execution against him until after the return was entered on the execution against him. Smith did not own at the time $500 worth of personal property, and that fact was known to McMillan. At'fall term, 1878, a motion was made in behalf of plaintiff to amerce McMillan as sheriff in the sum of $100, nisi, for failure to make due return on the execution of Smith against Godwin. Upon notice to the' said McMillan the judgment nisi was made absolute at spring term, 1880, of said court, for the sum of $100 and costs, from which judgment the defendant,-McMillan, appealed. ' • • ■ •</p>

Civil ActioN tried at Fall Term, 1880, of Greene Superior Court, before Gudger, J. The summons was issued on the 27th of January, 1880, returnable to spring term, 1880, at which term an entry was made on th.e docket as follows: “ Time to file pleadings as At th-e time-of filing the complaint, the plaintiffs’’ counsel notified the defendant’s counsel of the fact, and called! - his attention to the fact that his client, the defendant,, was in Snow Hill, the county town of…

<p>Notice of moüon io dismiss Action- — lu forma Pauperis.'</p> <p>Where plaintiff" is permitted t© sue in forma pauperis and an answer is filed to the eomplaint and the -ease -eoiithmed from term to term for three year's, it was held error to allow defendant’s motion to dismiss the action for insufficiency in the affidavit upon which the order to sue was granted, without a previous notiee to the plaintiff. The court intimate that in this ease the defendant has waiv-ed all exception to the affidavit.</p>

<p>Action for Malicious Prosecution — Nolle Prosequi, effect of.</p> <p>la an aetion for malicious prosecution the plaintiff must allege and prove a legal determination of the original action. And where a nolle prose-qui was entered of record, and the defendant discharged, it is such a conclusion of the original action as will entitle the plaintiff to sue.</p>

<p>. Civil Action tried upon complaint'and demurrer at Fall Term, 1880, of Person Superior Court, before Eure, J.</p> <p>Demurrer overruled and defendants appealed.</p>

<p>Removal of Causes-^ Order Conclusive — '-Costs.</p> <p>1. It is error for a Court to which a cause has been removed for trial to send it back because the transcript of the reóord cloek not show “ tiiat it was transferred according to law.’ The order of removal itself is conclusive and tiro court should have proceeded with the case, unless it positively appeared that the order was made contrary to law»</p> <p>3. The fees of the officers of such court and the pay of the witnesses attending in the case may properly be taxed in the bill of costs.</p>

A judgment recovered by the plaintiffs against the defendants before a justice of the peace was docketed in the superior court of Alamance on March 1st, 1869, and execution issued thereon on the 22d. It does not appear that any other ever issued.

<p>Motion for- leave to bring an action on a judgment rendered and docketed in Chowan Superior Court on the 18th of April, 1870,, heard at Chambers on the 15th of April, 1880, before Graves, J.</p> <p>The motion was allowed and the plaintiffs appealed.</p>

MotioN to set aside a judgment (under the Code, § 133) heard at Fall Term, 1880, of Mecklenburg Superior Court, before Seymour, J. The motion was allowed and the plaintiffs appealed.

Civil Action tried at Fall Term, 1880, of Mecklenburg Superior Court, before Seymour, J. In this action, the plaintiff seeks to recover of the defendant, who is the sheriff of Mecklenburg county, for refusing to apply a sum of money, which he had realized by a sale of the lands of an incorporated company known as “ The Empire Gold Mining Company,” in satisfaction of a judgment in plaintiff’s favor against the company.

MotioN of defendant (in a case removed from Cumberland) to tax costs against the plaintiff, heard at December -Special Term, 1880, of Robeson Superior Court, before Avery, J. Motion refused, .appeal by defendant.

<p>Petition for certiorari heard at January Term, 1881, of The ¡Supreme Court.</p>

MotioN by defendants to set aside a judgment confirming a sale of land for assets, heard at June Special Term, 1380, of HeNDKRSON Superior Court, before Schenck, J. The plaintiff appealed from the judgment.

<p>Civil ActioN tried at Pall Term, 1880, of Halifax Superior Court, before Graves, J.</p> <p>The plaintiff appealed from the ruling of the judge below.</p>

<p>Executors and Administrators — Statute of Limitations.</p> <p>Any defence -open to a personal representative -(here the statute of limb- ■ tations) may be set up by one creditor of 'the decedent’s estate'against the claims of'another. And where such claim is barred by lapse of time, the promise of--the .personal representative to pay-it will not repel the statute, though when iu writing founded on sufficient consideration and the possession of assets, it will bind the promisor personally.</p>

<p>Civil Action tried at Spring Term, 1880, of Guilford Superior Court, before Seymour, J.</p> <p>The plaintiff appealed from the judgment below.</p>

<p>Guardian and Ward — P)'ochein Ami — Partition—Decree.</p> <p>1. Where an infant sties or defends by guardian, the guardian must have a warrant, hut aprochein ami need have none; and- if in partition proceedings the-interest- of the latter is adverse to that of the infant, the decree therein will not on that account be disturbed unless fraud or collusion be established.</p> <p>2. Where the decree in such ease is impeached for error in law, by a proceeding in nature of a bill of review,.it is- not competent to introduce-other evidence to correct the statement oí facts upon which the decree was made.</p>

<p>Civil Action tried at Spring Term, 1880, of Franklin ■Superior Court, before Seymour, I.</p> <p>Judgment for defendant, appeal by plaintiffs.</p>

On the 19th of November, 1868, a doed was executed' between Ella E. Hardy, John H. Hardy and Joseph H. Hardy, whereby, after reciting that a marriage was soon to- be had between the said John H. and Ella E., and that it had been agreed between them- that certain personal estate of the latter should be conveyed in trust to her sole and separate use and free from the control of her intended husband, the said' Ella E. conveyed to the said Joseph H. certain bonds and notes…

<p>Civil Action commenced before a justice of the peace and tried on appeal at Fall Term, 1880, of Mecklenburg Superior Court, before Seymour, J.</p> <p>This action is against one of the drawers and the personal representative of the other, upon an inland bill in the following form:</p> <p>Chaelotte, Oct. 30th, 1871.</p> <p>Thirty days after date pay to the order of Wittkowski & Rintels one hundred and sixty-six dollars and fifteen cents, value received, and charge to the account of</p> <p>Ge>ttry & Smith.</p> <p>To S. L. Billings.</p> <p>Across the face of the instrument were written these words : “ Accepted Oct. 30tb, 1871. S. L. Billings.”</p> <p>The bill was discounted by the Bank of Mecklenburg at Charlotte, and not being provided for, was at its maturity, on demand made, protested for non-payment by a notary public at the said bank, and notices thereof forwarded by mail, addressed to the drawers at Gap Civil in Alleghany county and to the acceptor at Sparta in said county in this State. The notices were directed to those places upon information derived from the plaintiff as to the residences of the respective parties. It was in proof that Billings then lived and had always lived. in Grayson county, Virginia, and was amply solvent when the bill became due and for some time afterwards. He has since gone into bankruptcy.</p> <p>Upon this evidence, it w'as contended for the defendant that no demand had been made on the acceptor, sufficient to charge them as drawers. A verdict for the plaintiff was taken, subject to the opinion of the court upon the question reserved by consent, as to the liability of the defendants upon the facts proved ; and the court, being of opinion that no sufficient demand had been shown, ordered the verdict to be .set aside and a nonsuit entered. Prom this judgment the plaintiff appealed.</p>

<p>¡Civil Action commenced before a justice of the peace and tried on appeal at Fall Term, 1880, of RICHMOND Superior .Court, before Avery, J.</p> <p>Verdict and judgment for plaintiff, appeal by defendant.</p>

Civil Action tried at Fall Term, 1880,of AlliígkhaNY Superior Court, before Gilmer, J. On the 18tb of March, 1876, the defendant, J. W„ Duncan, ■esecuted his note under seal and therein promised to pay to the defendant, H. F. Jones, for value received, the sum of f308.4'9 on or before September following, and the like sum on or before March 18th, 1877, with interest from date at the rate of -eight per cent, per annum.

Civil ActioN tried at Spring Term, 1880, of Macon Superior Court, before Schenck, J. This action is brought against the defendant upon the following written instrument executed by him : On or before the first day of January, 1879,1 promise to pay to the order of Albert S. Bryson one thousand dollars with interest from date, being part payment of a certain tract of land, for which bond has been given, bearing even date with this note.

<p>Agency* — Action against Railroad Co. for Penalty for Failure to Forward Freight — Application of Penalty — Jurisdiction,</p> <p>1. Iu an action, against a railroad company, where it was in evidence that . S., the regular agent of the defendant at a certain depot, lived three miles from the depot and that T. lived at the depot for two years prior to the bringing of the action and discharged the duties of agent in receiving and forwarding freight, selling tickets, &c., all of which was done in the name of S. and with the knowledge and acquiescence of defendant; It was held, that T. was the agent of defendant and that defendant was'hound by any act of his within the scope of the authority impliedly given.</p> <p>2. The penalty against a railroad company for failure to forward freight under ch. 240, § 2, Laws 1874-5, is not given by article 9, § 5 of the eon-■stitution to the county school fund.</p> <p>15. The said statute is not in violation of the Constitution of the Ünited States. Art. 1, § 10.</p> <p>4. An action to recover the penalty under the statute is an action e& con-tractu, and when the sum demanded does not exceed two hundred dollars a justice of the peace has jurisdiction.</p>

<p>Agent and Principal — Contract—Fiduciary Relation.</p> <p>Plaintiff, station agent of a railroad company, sues the company in damages for breach of an alleged contract in failing to furnish a train for an excursion. Upon correspondence had the company supposed the train was intended for a third party and agreed to supply it on cero terms, but afterwards refused on discovering that plaintiff was attempting to procure it for his own benefit; Held, that plaintiff could not from his fiduciary relation towards the company enter into a binding contract with it for such purpose, unless it agreed thereto after being fully advised of all the circumstances.</p>

<p> Corporations¡ service of process against-. </p> <p>1. Notice of a motion for leave to issue execution against a corporation, served upon its president or managing agent (or others named in. section 32 of the code) is Sufficient. The “personal notice’’ fiieiltioiied ifi section 256 of the code is but in contra-distinction to that given by publication. And it is not a sufficient answer to such motion to show that the judgment against the corporation had been paid by a surety to an appeal bond, where it appeared the money was returned to the surety upon vacation of the judgment as to him.</p> <p>2. A corporation cannot be allowed to deny its organization and exist-- ' enee after contracting a debt in its corporate capacity, or answering a complaint demanding payment.</p>

ApPeicatIoN of plaintiff fot an injunction heard at Chambers in Halifax on the 1st of October, 1880, before Graces, This is a petition for an injunction to restrain John A. Moore from proceeding to sell the franchise and property of the Roanoke Navigation Company, under executions in his favor, which have been levied upon said franchise and property.

Controversy submitted without action- at Fall Term, 1880, of LINCOLN Superior Court, before Seymour, J. The plaintiffs claim that the county of Lincoln isindebted) to them as follows: To Seth Abernathy and wife, Elizabeth, in the sum of $116.06, to James Keeser and wife, Mary, in the sum of $216.06, to Henry Harris and wife in the sum of $216.06, and that the said several sums bear interest from the 24th of November, 1863.

Civil Action to recover land tried at Pall Term, 1879, of MadisoN Superior Court, before Graves, J. There was a verdict in favor of defendants, and from the judgment thereon the plaintiffs appealed.

PROCEEDING in a criminal action at Fall Term, 1880, of Hertford Superior Court, before SchencJc, J. - The prisoner being brought to the- bar of the court for judgment pursuant to the decision of this court, reported in 82 N. 0., 631, was asked if he bad anything further to say fhan he had already said why sentence of death should not be pronounced upon him, and in answer thereto (through his counsel) suggested that the prisoner since his conviction had become insane, and in…

<p>Motion in a criminal action to- make a prosecutor of rec*-. ord, heard at Fall Term, 1880, of Perder Superior Court, before Gudger, J.</p> <p>The indictment which was found in the criminal eourt of New Hanover county charged the obtaining of certain money from -one C. 0. Stevens by false pretence. The case was removed to Pender for trial, and placed on the docket of the superior eourt of that county at spring term, 1878; and at fall term thereafter the following order was made by the presiding judge; “Defendant discharged, cause continued.” At fall term, 1879, on motion of the solicitor the court ordered that a mpias issue, and the defendant by virtue thereof was again arrested. At spring term, 1880, on motion, it was ■ordered by the court that said C. C. Stevens be notified to show cause at the ensuing term why he should not be made the prosecutor of record, and the respondent accordingly appeared by counsel and answered the rule. His Honor found that it was at the respondent’s instance that the indictment was instituted, but said Stevens was not marked as prosecutor at the time of sending the bill to the grand jury, and being of -opinion that the act of 1879,' ch. 49, providing for ascertaining and marking a prosecutor after bill found could only be made to apply to indictments commenced after the passage of the act, refused to grant the motion, and disebarged the rule to show cause, from which ruling the solicitor for.the state appealed</p>

<p>Assault and Battery-.</p> <p>Defendant intended upon, the premises of prosecutor who took hold of him to lead him off, when defendant put his hand in his pocket and partly drew out a knife, and thereupon the prosecutor desisted and went into the house,, the defendant cursing' him; Held an assault.</p>

<p>Confession — Judge’s Charge.</p> <p>1. Facts accompanying a prisoner’s confession found by the court below are conclusive; but whether they are sufficient to warrant the admission of the evidence is a matter of law and reviewable.</p> <p>2. In larceny, it was found by the court that the defendant was arrested, tied and carried by an officer to the house of the employer of defendant in another county, when a vest (one of the articles charged in the indictment) was exhibited by the said employer to defendant, and in reply to the question, “ where did yon get that vest,” the defendant said, “from you sir,” and the court admitted the declaration as voluntary, no improper influences being shown to exist; Held, no error.</p> <p>3. Where on the trial of a criminal action, no evidence as to character being offered by defendant, the court told the jury that the state could not introduce such evidence but it was the right of defendant to offer it if he chose, and that no unfavorable inference could be drawn from his failure to do so; and added, that they must find their verdict upon the facts proved ; Held, that although the former part of the charge might by itself be objectionable, yet the error was cured by the latter.</p>

<p>Conspiracy, where one defendant is competent witness for the other.</p> <p>On trial of an indictment for conspiracy, where the defendants are charged in the bill with, conspiring- with another who is not indicted, it was held that they were competent witnesses for each other under the act of 1866, eh. 43, § 3, and but for that charge (conspiring with the party not indicted) they would be incompetent.</p>

<p>Different Qounts — Mismarlcing—Evidence— Trial</p> <p>1. Several counts for different offences may be joined in the same indictment, where the judgment on conviction of either is the same ; and in such ease it is usual to require the solicitor to elect upon which count he will try before the accused commences the examination of his witnesses. A refusal to quash for such alleged misjoinder is no ground for'arrest of judgment.</p> <p>2. On trial of an indictment for mismarking a hog, parol evidence is admissible to piove the “ mark ” of the prosecutor. (Section one, chapter 16 of Battle’s Kevisal has no application to this case). And any circumstance tending to show the guilt o-f the defendant is also admissible.</p> <p>3. The judge presiding may in his discretion allow the examination of witnesses at any stage of atrial, in furtherance of justice.</p>

IndictmbNT- for larceny tried at Fall Term, 1879-, of Pen-ber Superior Court, before Eure, J. /The prosecutor testified on the trial, that shortly after losing one of his hogs, ia the mouth of October or November, he went to the house of defendant to inquire after his lost hog; that he described the hog to the defendant and he said he had not seen 'any hog of that description; that in two or three days afterwards he went to the defendant’s house to look after some hogs in a…

<p>IndictmeNt for false pretence tried at Fall Term, 1878, of WayNE Superior Court, before McKoy, J.</p> <p>Verdict of guilty, judgment, appeal by defendant.</p>

INDICTMENT for cheating by false tokens, tried at Spring Term, 1880, of Randolph Superior Court, before Seymour, J. The state appealed from the ruling of the judge upon the special verdict.

INDICTMENT fdr false pretence, tried at Fall Term, 1880, of TraNSYlvakia Superior Court, before Gilmer, J. The defendant was tried upoii two bills of indictment the one found at the spring term, 1880, and the other at the fall term, of said court, for obtaining a mule, the property of one Joseph Kemp, by false pretences. • The assignments of the false pretences in the first bill were that a mare which the defendant exchanged for the mule was sound, that there had never been…

INDICTMENT for fornication and adultery tried at Fall 'Term, 1880, of Robeson Superior Court,before Avery, J. After the jury returned a verdict of guilty, the defendants, 'Thomas Lashley and Narei-ssa Monroe, moved in arrest o-f judgment on the ground- that it did not sufficiently appear from the bill that the defendants were- of different sexes.

Indictment for murder, tried at Fall Term, 1880, of Olkaveland Superior Court, before Seymour, /. The opinion contains the facts. The jury rendered a verdict of guilty, judgment, appeal by prisoner.

INDICTMENT for murder, tried at Fall Term, 18S0, of Nash Superior Court, before Gudger, /> The prisoner was charged with the killing of Crawford Eatman on the 28d day of November, 1878. The jury rendered a verdict of guilty, and from the judgment pronounced he appealed to this court.

IndictmeNT for a misdemeanor under the revenue act of 1877, ch. 156, found in the inferior court, and tried on appeal at Fall Term, 1880, of Wayne Superior Court, before Gudger, I. The defendant was indicted at a term of the inferior court held for the county of Wayne in the month of December, 1879, for practicing the trade of a merchant without having obtained a license so to do; and at the following March term he was convicted and appealed to the superior court.

IndiotmeNt for assault and battery tried at June Special Term, 1880, of Wake Superior Court, before Gudger, J. The defendant is charged in several counts of the indictment with an assault and battery upon Madison Hodge and using a deadly weapon, or inflicting serious injury upon his person in all, except the last count which alleges no aggravating circumstances. Previous to empaneling the jury, the defendant's counsel submitted a motion to quash which was denied.

<p>Justices of the Peace — Jurisdiction.</p> <p>Justices of tlie peace have exclusive jurisdiction of the offence of canning'a pistol on the Sabbatii, being off one’s premises. Bat. Kev., eb. 117, and acts amendatory thereof.</p>

<p> Magistrate's Warrant, sufficiency and amendment of. </p> <p>The affidavit of a complainant in a criminal action before a magistrate, does not constitute an essential part of the warrant issued thereon, but if the warrant charges a criminal offence, it will be sustained. Suggestion of the court upon the power of amendment of such warrant.</p>

Indictment for a Nuisance, tried at August Term, 1880, of New HaNOVek Criminal Court, before Meares, J. The case is brought here by an appeal on the part of the state from an order of the judge below, quashing an indictment preferred against the defendant for a nuisance committed by the use of profane and vulgar language in a public place.

INDICTMENT for perjury tried at Spring Term, 1880, of Halifax Superior Court, before Gndgei\ j. The indictment is substantially as follows : The jurors, The jury rendered a verdict of guilty. Motion in arrest ■overruled, and judgment pronounced, from which the defendant appealed.

INDICTMENT for perjury tried at Fall Terra, 1880, of Martin Superior Court, before Schench, J. The substance of the charge in t-he bill of indictment is set out in the opinion of this- court. The counsel for defendant first moved to quash the bill on several grounds, which motion was overruled. The defendant then entered his plea of “ not guilty,” but upon the trial the jury convicted him.

<p>Prosecutor — Notice—Costs.</p> <p>1. A notice to mark or.e as prosecutor under the act o£ 1879, ch. 49, need not he in writing. Where it was announced in open court upon the calling and continuance of a state case that a motion would be made at.tlie next term to mark a witness as prosecutor, (ail the witnesses being- present) and on the argument ot the motion it was announced that ail the parties were present; Held to he sufficient evidence that such notice was given, and warranted the court in ordering the witness to he marked as prosecutor.</p> <p>2. The act was intended to enlarge the power of the courts over the question of costs in criminal actions, in providing that the court shall he of opinion there was no reasonable ground for the prosecution, or it was not required by the public interest.</p> <p>3. Remarks of Mr. Justice Ashe upon the act of 1875, ch. 247, and the substitution of the word “opinion” for “certify,” and “or” for “and,” by the act of 1879.</p>

Indictment tried at Pall Term, 1880, of Henderson Superior Court, before Gilmer, J. The defendants demurred to the indictment, and from the judgment overruling the same, they appealed.

<p>Indictment for slander tried at Fall Term, 1880, of -Jones Superior Court, before Gudger, J.</p> <p>Verdict of guilty, judgment, appeal by defendant,</p>

INDICTMENT for False Pretence, tried at Fail Term, 1880, of Cumberland Superior Court, before Avery, J. The defendant was charged with obtaining goods by a 'false pretence. The jury returned the following special verdict 1 “ The defendant entered into an agreement with the prosecutor, Worrell, last spring to chip a crop of turpentine boxes. A crop of turpentine boxes consists of from ten thousand to twelve thousand trees.

Indictment, for larceny tried at Fall Term, 1880, of Wilson Superior Court, before Gudger. J. Upon calling this case for trial, the defendant moved to quash the indictment for the reasons following: On the back of the bill under the word “ witnesses” the names of two persons were written, one of whom wasR.

IndictmeNT against the prisoner and others for burning a mill (under chapter 228, acts 1874-75,) removed from Caldwell and tried at Spring Term, 1880, of Catawba Superior Court, before Gilmer, J. The act of assembly makes the offence a felony punishable by imprisonment in the penitentiary. The case is sufficiently stated in the opinion. Yerdict of guilty, judgment, appeal by defendant.

<p>¡l'Yífiess — Justices of the Peace, when liable criminally — Judge’s Charge.</p> <p>1. It is not error to refuse to compel a witness to answer a question which tends to self-crimination.</p> <p>2. The functions of a justice of the peace are ministerial, in preserving the peace, hearing charges against offenders and issuing warrants thereon, examining the parties and hailing or committing them for trial; and in the exercise oí such functions, if he act corruptly-, oppressively, or from any other bad motive, he is liable to indictment.</p> <p>3. Where a justice of the peace, upon the affidavit of a party in February, 1879, stating that B. and other’s had committed a forcible trespass on his property and an assault and battery on his person, issued a warrant for the arrest of tire parties complained against, who were tried before two Justices, and B, bound over to the superior court in which the said justice, (defendant in this ease) was marked as prosecutor and witness upon the two bills Sound by the grand jury in that court} and the defendant in August, 1879, subsequently to the term of said superior court, upon the same affidavit issued another warrant against the same parties for the same offence; It mas held, that when the two justices took cognizance thereof tire defendant had no authority over the subject, and -w&s functus officio as to all matters contained in the affidavit, and is amenable t© the law as in eases where he issues-his warrant without a previous oath,</p> <p>4. Held farther, no error to refuse to charge, that the evidence of one witness offered by the state to prove that lie did not make a certain affidavit, was not sufficient to contradict the fact recited in the justice’s warrant issued upon such affidavit.</p> <p>&. Held further, no error to refuse to charge, that as the party swore-to four distinct offences in his affidavit of February and the indictments in the superior court only covered two of them, the act of the defendant in issuing the second warrant was lawful.</p>