Volume 85 — North Carolina Reports

Civil Action, tried at Fall Term, 1881, of Wake Superior Court, before Gilmer, J. The plaintiff declared upon a promissory note, without seal, made by the defendant on January 1st, 1862, to the firm of Silas Bums & Co., for $470.13, and soon thereafter endorsed to plaintiff. The summons is dated December 18,. 1879. The defendant pleaded the statute of limitations, and the plaintiff replied a new promise made in 1879, a short time before this suit was brought.

Civil ActioN, tried on appeal from a justice’s court, at January Special Term, 1881, of Sampson Superior Court, before McKoy, J. The action was brought on May 12th, 1877, by the plaintiff and others, as administrators of James White, deceased, against the defendant and others, upon a promissory note under seal in these words; $209.99. One day after February 3rd, 1862,1 promise to pay to Malcom Monroe, or order, two hundred and nine 99-100 dollars for value received.

<p>Practice — Might to Open and Conclude.</p> <p>The party who asserts the affirmative of an issue has the right to open and conclude the argument, hence a defendant who pleads payment of the note sued on (admitting its execution) being the affirmant, the onus is upon him to show payment, and lie is entitled to open and conclude.</p>

Special Proceeding for dower commenced in the probate court of Chowan county, and removed to and tried at Spring Term, 1880, of Washington Superior Court, before Graves, J. The plaintiff, Mary E. Roberts, widow of John Roberts, deceased, instituted this proceeding for dower against the defendants, the heirs at law of said deceased.

<p>Evidence — Deécription in Deed for Land.</p> <p>1, Evidence of the value of a tract of land adjoining that retained by the donor in a deed of gift, is incompetent to show that the donor did not retain property fully sufficient and available to satisfy existing debts.</p> <p>2. One hundred acres “lying in Currituck township near the head of Smith Creek, it being the eastermost portion of the farm purchased . from my brother and known as the Russell land,” is sufficiently described to identify the part cut off, as a distinct tract,</p> <p>(Blade v. Sanders, 1 Jones 67 ; Credle v, Oarrawan, 64 ÍT. C., 422 ; Bell v. Herrington, 3 Jones 320 ; Wellons v. Jordan, 83 M, C., 371; Stewart v, Salmonds, 74 ÍT, C,, 518, cited and approved.)</p>

Civil Action, tried at Fall Term, 1880, of Gbanville Superior Court, before Eure, J, This is an action to foreclose a mortgage, and in tlieir' complaint the plaintiffs allege that on the 14th day of February, 1870, at Yonkers in the state of New York, the plaintiff Robert Knight and W. K. Couzens and the defendants entered into a • contract under seal, whereby the two former covenanted to sell, and the latter to buy, a tract of land situate in Granville county, North…

<p>Civil AcT-ioN, upon the bond of ad ministrator., tried at Fall Term, 1879, of Catawba Superior Court, before Schenck, X.</p> <p>On the 25th of November, 1855, W. F. McKesson, as principal, and Charles McDowell and James McKesson^ as sureties, executed their bond to the plaintiff, Walton, for the sum of $2,250, payable one day after date. Charles McDowell died in 1859, leaving a will which was admitted to probate in November of that year, and upon the renunciation of the executor therein named, N. W. Woodfin was appointed his administrator with the will annexed and entered into bond as such in the sum- of $50,000, with E. M. Pearson and W. F. McKesson as his sureties. James McKesson also died, and William P. McKesson became his administrator. In I860, the' plaintiff instituted suit upon- his said bond for $2,-250 against W. E. McKesson in his own right and against him,- as the administrator of James McKesson,, and N- W. Woodfin as administrator of Charles McDowell,, in Burke superior court,, and at fall term, I860, thereof recovered a judgment against the three for the amount of the bond and interest, of which judgment a memorandum appears upon the civil issue docket as follows:</p> <p> </p> <p> vs. </p> <p>N W. Woo® FiN & ais.</p> <p>> >Jury — -verdict—See minutes. j</p> <p>Judgment against defendant and N W. W., adm’r, W, E. MeK., adm’r. $4,039.92.- Int. on $2,200 from 2nd Nov., 1869, (this in pencil' mark). From this judgment the deft. McKesson appeals to supreme court (this is in ink.) Quando as to adm’rs ;• absolute as- to W. P. McK. (this in pencil.)”'</p> <p>Whereas the minute docket, after stating the impannel-ing of the-jury and their verdict and amongst other things-their finding specially that “ the defendants N. W. Wordfin and W. F. McKesson have not fully administered upon the estates of their intestates but have assets belonging to the same sufficient to satisfy the plaintiff’s demand,'’ contains a record of a judgment absolute against W. F. McKesson individually, and the two administrators for the amount then due upon the plaintiff’s bond.</p> <p>From this judgment of the superior court of Burke, an appeal was taken to the supreme court, where the same was affirmed at January term, 1870, In November, 1869, E. V, Mieheaux and the plaintiff Walton instituted an action in Burke superior cou-rt against N. W. Woodfin as.administra-dor of 'Charles McDowell, and Samuel McDowell, Anna Me-Dowell, Cora McDowell,.and Charles M. McDowell, all infants, and the parties to whom the said -Charles McDowell ■ devised the lands whereof he d-ied siezed. In their complaint, which .was filed at spring term, 1870, of said court, an behalf of themselves and all other creditors of Charles McDowell, deceased, who will come in, prove -their claims .and contribute to the expenses of this suit, they allege the -death of the said Charles and the qualification of N. W. Woodfin as his administrator as hereinbefore stated. That at the time of his death he .was indebted to the parties bringing the .action and to-other persons in large amounts .and divers -ways. That besides the lands-devised to the infants above named, he owned a large personal estate, embracing -some forty or fifty slaves, and amounting to some :$50,0Q0 in value, all of whieh -went -into the hands of his -said administrator, who, in December, 1859, sold eleven of the slaves and all the other personal property, for about -$13,000, taking bonds with surety from the purchasers, who by reason of the accidents and .results of the war, became insolvent and their obligations of no value,; and the slaves ■unsold -being emancipated, the personal estate of the said •decedent was insufficient to pay his -debts.,; and therefore They pray that proper accounts may be taken to ascertain the amount of the debts owing, the assets which came into the hands of -the defendant Woodfin, as administrator, and what part thereof he then had in hand, and the value of <the real estate devised to the infant defendants, and that •said real estate might be sold and the proceeds applied to the payment of the claims of plaintiff and the ether .creditors. At the same spring term, 1870, the said Woodfin, as .administrator, filed his answer, in which he admits that the ¿said McDo.w.el[,.at the .time, of his death, o.wed.debts of his own to about $5,000', and a much larger amount as surety for ■ others,.but avers that all of his said testator’s principals were-men of means and abundantly able to- pay the debts for which he was bound for them. He further avers that immediately after his qualification as administrator, he advertised, according to law, for all creditors to present their claims, but none of those to whom his testator was bound ás surety presented their claims to him, or gave him any-notice thereof, and it was not until after the- war that he had such notice of their existence. That as administrator he took possession of all the personalty, and in December,. 1859, sold a portion of it amounting to some- $13j0OO, upon a credit of six months- taking the notes of the purchasers-with security amply sufficient at the time. That the amount of said sale was more than sufficient to pay all the debts, as well those of which he had no notice as those of which he-had notice, and would have been- so applied, but that before-he could- collect the said notes-, stay laws were passed which, prevented his doing so until late in the war when be could-only have collected confederate money, and such continued to be the case until all the parties to- the said’ sale notes had become insolvent b-y reason of the accidents of the war and the emancipation of their slaves. That having sold enough, to satisfy all claims against the estate of which he had notice, he desisted from selling any more of the personal property and divided the-same amongst the legatees according-to the terms- of the will — there being some thirty or more-slaves so divided ; and he submitted to the taking, of the-various accounts prayed for and joins in the prayer for a sale of the lands devised to the infant defendants for the-purpose of paying the debts of the estate. At the-same-term an answer was filed by the infant devisees, by their guardian, i-n. which it is insisted that according to the provision of the will of Charles McDowell his personal estate-was expressly, charged, with, the payment of. his debts.. That, of the personalty, some was sold in 1859, and the administrator had ample time to collect the proceeds before the beginning of the war or the adoption of any stay laws, and that he divided the slaves and the unsold personalty amongst the legatees long before the war began and without taking anj'- refunding bonds from them, in doing which he was guilty of a devastavit; and that before selling the land devised to said infants, it was the duty of the creditors to exhaust the personalty and all their remedies on the administration bond. Upon the coming in of the answers, the court, at the same term, made an order of reference and appointed T. G. Walton commissioner to take the account between the said administrator and the creditors of the testator, and directed him to give notice by advertisement at three public places in Burke county, or in a newspaper if he might deem necessary, to all persons interested in taking the account; and further directed the clerk of the court to notify the creditors of said testator that they were restrained from collecting their debts otherwise than as should be ordered in the said cause. At fall term, 1872, the commissioner Walton made his report, in which he finds that there came to the hands of Woodfin, as administrator, personal property to the amount of §30,000, of which he sold $12,500 worth, and received from other sources $1,727. That the claims against the estate amounted to $25,000, of which $9,000 were due from the testator individually, and the balance from him as surety for others; and that the amount disbursed by the administrator was $1,488.31. At fall term, 1873, an order was made in the cause making R. M. Pearson, a suretj’’ on the administrator’s bond, a party defendant to the action, and at fall term, 1874, the cause was dismissed by order of the court.</p> <p>On the 19th day of June, 1874, the plaintiff began the present action against N. W. Woodfin as administrator of Charles McDowell, R. M. Pearson, and W. F. McKesson his sureties on his bond as administrator. In his complaint as originally drawn and subsequently amended, , by leave of the court, after alleging the execution to him on the 25th of November, 1855, of the bond for $2,250, by W. F. McKes-son as principal and Charles McDowell and James Mc-Kesson'as sureties, and his having recovered judgment thereon at fall term, 1869, against said principal and N. W. Woodfin as administrator with the will annexed of Charles McDowell and W. F. McKesson as administrator of James McKesson, and the non-payment of his claim, the plaintiff assigns as a breach of the condition of the bond given by Woodfin as administrator, the fact that there came to the hands of such administrator a large personal property, greatly exceeding in value the amount of claims against the estate, which the administrator neglected and refused to apply to the payment of the debts, but distributed the same very soon after his qualification — to wit: in December, 1859, among the legatees mentioned in the will of his testator and without taking from them refunding bonds, thereby being of a devastavit, by reason whereof the plaintiff was damaged to the amount of his debt and costs of suit. The defendant, Pearson, alone filed an answer, and in it, after admitting that the testator, McDowell, left a large personal estate — in all about $50,000 — which went into the hands of his administrator, Woodfin, who made sale of a part thereof and distributed the residue amongst the legatees, he insists that the judgment which the plaintiff recovered at fall term 1869, on the bond for $2,250, wras not, and was not intended by the court to be a judgment absolute as to Woodfin and McKesson as administrators,but only as to McKesson in his own right and quando as to said administrators; and being a judgment quando he insisted that it was an admission of record by the plaintiff that the said administrators had no assets and ought not to have had any at the time of its rendition, which estops the plaintiff from averring to, the con-trnry in bis present action; and in support of his allegation that the judgment was intended to read judgment quando he referred to certain discrepancies in the record of the judgment as entered upon the “ civil issue docket” and the “ minute docket ” of the court, and as a farther defence, he insisted that, should the judgment be held to be an absolute one against the administrators, it had been rendered more than three years before the commencement of the plaintiffs’ action, and as the plaintiffs’ original debt was merged in the judgment — that being a higher security— and the breach complained of, being the failure to pay the judgment, having occurred in 1869, the plaintiffs’ action was barred by the statute of limitations ; and since his debt on the bond had been so merged in the judgment, it was no longer open to the plaintiff to complain of a breach in regard to it in its original form.</p> <p>At spring term, 1878, of Burke superior court, His Honor Judge Cloud presiding, a motion was made to amend the record of the judgment which the plaintiff had recovered at fall term, 1869, against W. P. McKesson individually, and Woodfin as administrator of McDowell and McKesson as administrator of James McKesson, so as to make the record speak the truth, and after hearing evidence His Honor found as a fact that the judgment as rendered by the court was a judgment quando as to the two administrators and that the entry of an absolute judgment against them was a mistake and thereupon ordered that the record of the judgment “ be so amended as to make it a judgment absolute as to W. F. McKesson in his individual capacity and a judgment pitando against the said McKesson as administrator of James McKesson and quando against N. W. Woodfin as administrator of Charles McDowell deceased.” The gresent action, after the suggestion of the death of N. •W. Woodfin and making Jno. G. Bynum as administrator de bonis non with the will annexed, of Charles McDowell and Richmond Pearson, Jr., as the executor of R. M. Pearson deceased, parties defendant, was removed from the superior court of Burke county to that of Catawba county, where a trial was had at fall term, 1879, before Judge Scbenck — a jury trial being waived by the parties. His Honor found as a fact that the judgment rendered at fall term, 1869, was absolute and not quando as to Woodfin administrator of Charles McDowell and that the judgment filed in that case at said term was regular and correct, and adjudged as a matter of law, inasmuch as there was no evidence before him, that said judgment was not taken according to the course of the court,- and no motion made to set it aside in a year and not until spring term, 1878, that Judge Cloud did not have the power to make the order he did, and that it did not affect the absolute judgment rendered at fall term, 1869. To which ruling the defendant Pearson accepted.</p> <p>His Honor further held that the plaintiff could maintain his action against the sureties of Woodfin on his administration bond, and especially as Bynum the administrator de bonis non of Charles McDowell deceased had been made a party defendant. Defendant Pearson excepted.</p> <p>His Honor further held that the judgment against Wood-fin as administrator, being absolute, was conclusive as to the question of assets, upon the sureties on his administration bond. Defendant Pearson excepted.</p> <p>His Honor further held that the plaintiff’s cause of action against Pearson, the surety oil the administration bond, was barred by the statute of limitations, and gave judgment for Pearson, his executor, dismissing the action as to him and for costs. Plaintiff excepted.</p>

<p>Master and Servant — Implied Contract — Statute of limitations.</p> <p><1. Where services are performed by one person for another under an express or implied contract that the party receiving the service will provide compensation in his last will,.and the latter dies without making such provision, an action will lie on a quantum, meruit for the reasonable value of such services, freed from the operation of-the statute, of limitations, such action not being maintainable until after the death of the party liable.</p> <p>3. Where services are given in the mere expectation of a legacy, not founded on contract, no action can be sustained for their value when such expectations are disappointed.</p> <p>:3. Where services are rendered for a series of years under no definité •contract as to duration, rate, or mode of compensation, other than that Implied by law, tbe promise' whieh the law implies is to pay lor' such' services as they are rendered,' and the statute of limitations begins to' run then, or at least, from the end of the year in which they were performed.</p> <p>4. In an action against an administrator for personal services rendered his intestate hy the plaintiff,' it appeared'in evidence that the services were of considerable value and highly estimated' by the intestate, who-declared his intention of compensating plaintiff in his will; and further, that plaintiff had frequently declared that she was not working as an hireling : Held, that the evidence authorized an inference involved in the verdict of the jury, that the services were not gratuitous, but did not justify the finding; in effect, of a mutual understanding as to the terms and conditions of plaintiff’s service, so as to remove the bar of the statute of limitations.</p> <p>(Hauser v. Saint 74 N. C«, 552, cited and commented on-.)</p>

<p>Construction of Will — Rule in Shelley’s Case.</p> <p>A testator, dying in 1S37, devised as follows r “I leave to my daughter C, the tract of land that I bought of H., to her, her natural life, and after her death, I give the same to her heirs forever.”" In another clause of the will there was a similar bequest of personal property.</p> <p>Held, that the word “-heirs ” was one of limitation, and not of purchase, and the daughter took an estate in fee.</p> <p>(Folkv. Whitley, S Ired., 133; Sanderlin v. Deford, 2 Jones, 74 ; Ooonv. Rice, 7’Tred., 217; McBee ex parte, 63 N. C. 332; Worrell v. Vinson, 5 Jones, 91; Zollicoffer v. Zollicoffer, 4 Dev. & Bat., 438; Floyd v. Thompson, R\, 478, cited and' approved.)</p>

CONTROVERSY without action under section 325 of the Code, for the construction of a will, heard at Fall Term, 1880, of Rockingham Superior Court, before Eure, J. Case agreed.- — The facts agreed upon are as follows? James Patrick, Sen., late of Rockingham county, died in the year 1835, having first made and published his last will and testament, bearing date the 28th of March, 1835, which was duly admitted to probate at May term, 1835, of the county court of said county.

Civil Actio-n tried at Fall Term, 1881, of Wake-Superior Court, before Gilmer, J. This action is to- enforce- an a-ward' rendered upon an-agreement of reference in the following words: In the matter between Charles Bryant and Mrs. Julia- Fisher,.admin-istratrix of Jefferson Fisher, deeeased. It is agreed that alt matters between the said parties are referred to Samuel F..

Civil Action to recover land tried at Pall Term, 1880, of Granville Superior Court, before Eure, J. The facts were agreed upon, and judgment rendered for the plaintiffs, from which the defendant appealed.

Civil ACTION begun before a justice/ff the peace and tried on appeal at Fall Term, 1881, of Wake Superior Court before Gilmer, J. The plaintiff filed the following complaint in which he alleged: 1. That defendant executed and delivered to plaintiff on the —— day of December, 1867, his bond under seal for the sum of one hundred and nineteen dollars, due and payable twelve months after date. 2.

Civil Action commenced in Yadkin and removed by-consent and tried at Spring Term, 1880, of Rowan Superior Court, before Buxton, J. Verdict and judgment for the plaintiff, appeal by defendant,

Ejectment tried' at Fall Term-, 1881, of Wake. Superior-Court, before Gilmer, J: The jury rendered a verdict for- the plaintiff, and from the judgment thereon the defendant prayed an appeal.

<p>MotioN to retax costs heard at Spring Term, 1880, of Harnett Superior Court, before Eure, J.</p>

<p>Homestead — ExecMion—Lien.</p> <p>A note or bond given for land is not a lien on the la.nd lor the purchase money, but no property oí the vendee is exempt, under the constitution of 1868, from sale under execution against him for payment of obligations contracted for the purchase thereof.</p> <p>(Womble v. Battle, 3 Ired. Eq., 1S2 ; Cameron v. Mason, 7 Ired. Eq., 180; Simmons v. Spruill, 3 Jones Eq., 9; Hoskins v. Wall, 77 N. C., 219, cited and approved.)</p>

Civil Action tried at Fall term, 1880,«of Gkanville Superior Court before Eure, J. This is an action brought to recover the possession of a tract of land which it is admitted formerly belonged to one Andrew J. Harris, who is now dead. The plaintiff claims to have purchased at sheriff’s sale under a judgment against Harris. The defendants are his widow and children, and ■claim to hold the land under an assignment of homestead made in his lifetime.

•Omr, Action, beard on complaint and demurrer at Fall 'Term, 1880, of Columbus Superior Court, before Avery, J. The demurrer was sustained and the plaintiff appealed.

<p>jEjectment — Evidence— Lost Records.</p> <p>In ejectment, the plaintiff claimed under execution sale and sheriff’s deed, and the defendant under a homestead allotment; Held,</p> <p>(1) In order to show that the land was not exempt from execution, it is competent to prove by the plaintiff in the judgment on which the execution issued, the time when the debt was contracted, (without producing the evidences thereof) as an independent fact and collateral to the contract, which was between other persons than the parties to this suit.</p> <p>( 2) Where the loss by fire of the execution under which the sheriff sold was shown, entries in the judgment docket of the levy, sale, &c., may be admitted and proved by the clerk who made the entries, as secondary evidence of the contents of the execution. And in such eases the recital in the sheriff’s deed is prima faeie evidence of the existence and validity of the execution. Bat. Rev. eh. 14, § sec. 19.</p> <p>( Oates v. Kendall, 67 IST. C., 241; Brem v. Allison, 68 ST. C., 412 ; State Oorpening, 10 Irecl., 58, cited and approved.)</p>

Summary Progeeding in ejectment tried on appeal at-Spring Term, 1881,- of Alamauck Superior Court before-Avery, J. This proceeding was commenced before a justice of the peace to recover possession of a house and lot alleged to-have been rented by plaintiff to defendant who held over after the expiration of the lease. In his affidavit before the justice, the plaintiff alleged-substantially as follows: 1.

Civil ActioN tried at Spring Term, 1881, of Columbus. Superior Court, before Qudger, J. The action is brought upon a bond given by Forney ■George as guardian of the infant relators. The other defendants were sureties on the bond, together with Ann E. George, who at the time of its execution was the wife of said George, and is now the guardian of the said infants, and brings this suit in their behalf.

Civil Action tried at Spring Term, 1881, of Wake Superior Court, before SchencJc, J. The action was brought on the official bond of defendant, Magnin, as treasurer of Wake county, and heard before His Honor upon exceptions to the report of a referee. Both parties appealed from the ruling below.

Civil Action heard upon complaint and demurrer at Spring Term, 1881, of Wayne Superior Court, before Grooves, J. The plaintiff in her complaint alleged substantially as follows: That she is the widow and one of the distributees in the estate of Haywood Ham, who died intestate in the year 1868, and Henry B. Ham qualified as his administrator. That the defendant W. F. Kornegay and W. G. Hollow’ell wTere the sureties to his administration bond.

Civil Action tried,, on appeal from a justice’s court, at-Spring Term, 188-1, of Forsyth Superior Court, before Seymour, J. Case Agreed — The following are the facts: The action is brought to recover the amount of a note of which the following is a copy r One day after date we or either of us promise to pay to E. Belo,. the just and full sum of one-hundred dollars for T. J. Boner for value received of him, as witness our hands and seals this 28th day of January, 1860,…

Prooeeimng in nature of creditor's bill heard at Pall Term, 1881, of Orange Superior Oou-rt, before Qudger, J. This was a creditor’s bill, filed by the plaintiff against defendant,- as administrator of Isaac Holden, deceased,, before the clerk of the court under the act of 1871-72, ch, 218, for an account and settlement of the defendant’s administration, and for payment of a judgment which plaintiff’s testator, Duncan Carrington, had recovered before a justice of the peace…

<p>Statute of Limitations — New Promise by Administrator.</p> <p>Plaintiff commenced action in 1879 for services rendered in 1875 to defendant’s intestate, and, to repel the plea of the statute of limitations, testified that in November, 1875, he told the administrator that the deceased owed him $56 ; that the administrator never said whether lie would pay it or not; that this was repeated several times, hut that the adminstrator persisted in saying nothing : .Held,</p> <p>'(1) That plaintiff’s claim was barred by the statute of limitations ;</p> <p>(2) That what occurred between the parties was not such a recognition of a subsisting claim as would repel the bar of the statute, and even if it were, would be ineffectual unless in writing, under section 51 of the Code.</p> <p>(3) That plaintiff’s claim derived no aid from the act of 1881, eh. 80, allowing to admissions of administrators and executors the effect of an action commenced in preventing the operation of the statute of limitations.</p> <p>( Fall v. Sherrill, 2 Dev. & Bat., 371; Oates v. Lilly, 84 N. C., 643 ; May v. Darden, 83 N. C., 237 ; Haiokins v. Long, 74 N. C., 781, cited, distinguished and approved.)</p>

Civil Action, tried on appeal at Spring Term, 1881, of Wake Superior Court, before Schenck, J. This action commenced in a justice’s court, the defendant being summoned to answer thp plaintiff’s complaint “ for the non-payment of the sum of $68.50 due by account.” Before the justice the pleadings were oral — the complaint being for the non-payment of “ $68.50 overpaid to defendant as a distributee in the estate of their intestate, William Geoplin, as evidenced by- a refunding…

Civil Action tried at January Special Term, 1880, of Sampson Superior Court, before Gilmer, J This action is brought to restrain the defendants from rebuilding a mill on a stream in Sampson county, known as the “ Great Coharie.” The plaintiff who owns a tract of land near the head of the stream alleges that the defendants who own the tract next below his, contemplate building a mill, which when built will have the effect to pond the water and cause it to overflow and render…

<p>Civil Action tried' at Fall Term, 1881, of Waice Superior Court, before Gilmer, J.</p> <p>The suit was instituted before a justice of the peace to, recover the sum of two hundred dollars. There was judgment for plaintiff, and the defendant appealed to the superior court where the ease was dismissed on the ground that the justice had no jurisdiction,, and from, this judgment the plaintiff appealed. The plaintiff and defendant having ¿greed to an interchange of lands, entered into a written contract under seal, which contract after reciting the terms, of their trade provides as follows r “ And the said parties hereby agree and bind themselves in a bond-' for four hundred dollars, each to make a good title and deliver the possession of said land within thirty days from the date hereof, and if either of us shall fail to comply with the written contract, the other party shall have the right to sue and recover the sum of two hundred dollars and all damages, as witness our hands,”' &c.</p>

that defendants be restrained until the said 11th of January.

Civil Action tried at Spring Term, 1881, of Mecklen* burg Superior Court, before Eure, J. The action was brought by the plaintiff against the defendants to recover the amount due upon a bond of which the following is a copy: One day from date we or either of us promise to pay P. M. Torrence, executor of C. L. Torrence, three hundred and fifteen 45-100 dollars for value received. May 15th, 1872.

Civil. Action tried at Spring Term, 1880, of Franklin Superior Court, before Ewe, J. Zadock Peacock died in 1856, leaving a will in which after a devise of one-third of his lands to his wife for life, and a bequest to her of certain specified articles of personal property, a year’s provisions and seven hundred dollars in money, is contained the following concluding clause : “ Item 3.

Civil Action tried at Spring Term, 1881, of Orange Superior Court, before Avery, J. The action was commenced on December 3rd, 1879, before a justice, to recover the amount due on a bond -executed on November 2, 1868, by Nelson Rhew, the intestate of the defendant, to the plaintiff in the sum of $178, to which is set up in defence, the discharge of the intestate in bankruptcy and the bar of the statute of limitations.

<p>„Statute .of Limitations — Amendment,.</p> <p>9.. Where an Individual partner briaga suit in his own name on a partnership claim not barred by the -statute of limitations, and is defeated 'by reason of thfe non-joinder of his copartners, be may bring another suit on the same eause of action within a year, though the latter suit would have been barred by the statute if it had been the beginning of the litigation.</p> <p>-3. Since to aehieve the same end by different means can prejudice no ■ one, tbe same result may be attained by an amendment converting the individual action into one in the name of the partnership, if such ' -amendment be made within the-time -in which a new action might have been brought.</p> <p>i{Phillips v. Holland., 78 N. C., 31; Henderson .v. Graham, 84 N. -C.., 496; Christmas v.. Mitchell, 3 Ired. Eq., 535; Cogdetl v. Exam, 69 N. -0., 464, cited, distinguished and approved.)</p>

Civil Action tried, on appeal from a justice’s court, at Fall Term, 1881, of Wake Superior Court, before Gilmer, J. The action is to recover rent due the plaintiff. Verdict in favor of the plaintiff for $68.25, and judgment for the amount was rendered, with interest and costs of action, and the defendant appealed.

• Civil ActioN tried at Fall Term, 1879, of Wake Superior Court, before Avery, J. The facts are stated in' the opinion. The court below gave judgment that plaintiff be declared a trustee for defendant, and referred the case to the end that an account may be stated between the parties, and retained the cause •for further directions upon the coming in of the referee’s •report. From this ruling the plaintiff appealed.

Civil ActiqN tried, on appeal from, a justice’s court, at Spring Term, 1881,. of Richmqmd Superior Court,, before' Gudger; J... The plaintiff, declared upon a bond executed by the dé-fendant on the first of Februar}^ 1-868, and made payable-to one Elijah Pate, for the. sum of one hundred and thirteen, dollars, and assigned by endorsement to the plaintiff ou3 November 8th, 1.87.6. The. facts relating to- the point decided are stated'ii-n the>opinion.

Civil Action, tried at Pall Term, 1881, of Craven Superior Court, before Shipp, J. On the 9th of September, 1874, the defendant gave his bond to the plaintiff for $850, payable one day after date, which bond the plaintiff afterwards endorsed to one Ban-gert, who, upon failure of defendant to pay the same, sued the plaintiff as endorser and recovered from him for principal, interest and costs, the sum of $1,018.69, which plaintiff paid, and sues the defendant therefor.

MotioN for an injunction in an 'action pending in Randolph county, heard on the '9th of July, 1-881, before Gil-mer, J Motion allowed and defendant appealed,

<p>Civil ActioN tried at Fall Term, 1880, of Anson Superior-Court, before Avery, J.</p> <p>Verdict and judgment for plaintiff, appeal by defendant.</p>

Civil Action to recover land tried at Spring Term, 1880.,. of Nasi-i Superior Court, before Avery, J. The facts are stated in the opinion o? this court.

<p>Civil Action to recover land tried at Spring Term-,-1881, of Orange Superior Court, before Awry, J.</p> <p>Defendant appealed from the judgment below.</p>

Special Proceeding heard an appeal at Spring Term, 1881, of Wake Superior Court, before Schenck, J. This is a proceeding commenced before the probate judge of Wake county, in which the plaintiff by her next friend, asks that the defendant, her guardian, may be required to disclose the manner in which he has invested her estate and the nature of the securities taken therefor.

Civil Action-,, tried at Fall Term,, 1881,. of Ired-ell Superior Court, before Seymour, J.. The summons in this action issued on the- 21st day of May, 1879.

<p>Special- PROCEEDING- for partition, beard on appeal (in a case pending in Granville county) at chambers, in Greensboro, on the 13th of September, 1881, before Qudger, J,</p> <p>Defendant appealed from- the judgment below.</p>

<p>Appeal — Practice.</p> <p>1. One who is made, by service of process, a party to an action in a jus» tice’s court, must serve notice of an appeal, with a statement of his grounds therefor, within ten days after judgment.</p> <p>3. Quaere, as to whether an appeal will lie from a refusal of the superior court to dismiss an appeal from a justice’s judgment.</p> <p>3. The correct practice in case of a refusal to dismiss the action is to reserve the exception and proceed with the trial, so that on appeal the court may dispose of the whole case.</p> <p>{Sparrow v. Trustees, 77 if. 0., 35; Grawley v. Woodfin, 78 ST. C., 4, cited and approved.)</p>

Rule upon the defendant commissioners to show cause why they should not be attached for contempt, heard at Spring Term, 1881, of BladeN Superior Court, before Gudgerr, J. The defendants appealed from the ruling below.

<p>Exception — Appeal—Issues—Estoppel.</p> <p>1. An exception in order to he available on appeal must point out specifically tiie error o£ which complaint is made.</p> <p>2. If issues framed by the court are defective or insufficient to develop tiie whole case, the party prejudiced thereby must lay the foundation of an appeal by suggesting the proper corrections at the time of the trial.</p> <p>3. Tiie owner of a chattel which lias been sold as the property of another, is estopped from asserting his title against the vendee by accepting and collecting to his own use a note which he knows that the ven-dee gave for tiie purchase money.</p> <p>(Brumble v. Broum, 71 2ST. 0., 513; Baines v. Drake, 5 Jones, 153 ; Sapo-na Iron Oo. v. Holt, 64 IST. 0., 335; Curtis v. Cash, 84 IN'. C. 41; cited and approved.)</p>

<p>Deed — Construdion-^-Remainder in Chattels^Evidence'.-</p> <p>"Where the operative words of a conveyance were that the grantor “doth ^ give, grant, bargain1, sell and convey tinto the party of the second part all his household and kitchen furniture, to tfe theirs at his death,- to1 have and to hold,” &e.; it was held</p> <p>(1) That such conveyance was an attempt to limit an estate in- remainder in chattels, expectant upon the determination of a precedent life estate reserved to the grantor ;</p> <p>'{2 That the reservation of the life interest could not bo disregarded as inoperative by reason of its repugnancy to the estate conveyed to the grantor;</p> <p>•(3) That the particular estate for life absorbed the entire interest, and the limitation over was void';</p> <p><(4) That parol evidence that the grantor put the grantees in possession of the property immediately after executing the deed is inadmissible to affect the construction of such deed'.</p> <p>'■( Wilson v. Sandifer, 76 1ST. C., 347; Graham, v. Graham, 2 Hawks, 322; Morrow v. Williams, 3 Dev., 263; Sutton v. llollowdl, 2 Dev. 185; Hunt v. Ffavis, 8 Dev. & Bat. 43; Foscue v. Fosoue, 2 Ired. Eq., 321 ; ■Lance v. Lance, 5 Jones 413, cited and approved.)</p>

<p>Boundary^-Declaration of Deceased Owner — ■Evidence—Record of Former Action.</p> <p>1. The declarations of a dec°ased owner of land, locating an angle of an adjoining tract, is admissible, though the corner so- established is coincident with one of his own boundaries, where both parties to the action place .the corner in the declarant’s line and it is immaterial to him at what point it is fixed.</p> <p>2.' Upon an issue as to the defendant’s occupation of land in dispute, it is proper to introduce the record of a former suit by the defendant against the plaintiff and others for an'injunction and to stay trespass, for the purpose of showing, by an affidavit made in that cause in behalf of the plaintiff therein, a deliberate admission of such possession.</p> <p>'(Sasser v. Herring, 8 Dev. 340; Hartzog v. Hubbard, 2 Dev. & Bat. 241; Dancy v. Sugg, lb. 815 ; Hedrick v. Gobble, 63 N. C. 48 ; Caldwell ~v. -Neely, 81 N. C-. 114; Smith v, Walker, 1 Car. L. R. 514; Mushatt v. Moore, 4 Dev. & Bat. 124-; Byan v. McGehee, 83 N. C. 500, cited and approved.)</p>

Civil Action to recover land-tried at Spring Term-, 1881,.. of. M-ECKLJSnburg-Superior Court, before Eure, Jl The plaintiff claimed under a deed from Levi Spencer,. William Foster and. wife Mary Ann, and- Rufus Nicholson- and wife Amnabella,.dated - up to March,. 1866-, when, Minta died. Mary Ann was a child of Minta by said! Spencer.

Civil Action to recover land tried at Spring Term, 1881, of Carteret Superior Court, before Graves, J. On the trial the plaintiffs, in support of their title, offered in evidence a grant from the state, covering the land in dispute, dated in 1872. It was admitted the' defendants were-in possession.

Civil ActioN tried at June Term, 1881, of New HaNOVer-Superior Court, before Graves, J. This action was brought to restrain the defendants' from selling certain real estate, situate in the city of Wilmington, the property of the plaintiff, Alexander Oldham, under two mortgages executed by the plaintiffs on the ■5th day of September, 1878, the one to secure a debt to the ■defendant bank for $10,999.67, and the other to the defendant Burruss for $3,880.

1881, of Richmond' Superior Court, before Qudger, J. The clerk before whom the motion was made refused the same and the plaintiff appealed to the superior court, where' the judgment of the clerk was affirmed, and the plaintiff appealed to this court.

<p>Eor principle decided, see syllabus in preceding case.</p>

<p>Infant Defendants — iProcess—Signing Judgment — Subrogation—■ Judgment by iraud — ~-BiU of Review — Newly Discovered Evidence.</p> <p>1.- A Judgment will not be vacated because some of a number of infant defendants united in interest, appeared only by a guardian ad litem, appointed without process previously served on such infants. (See C. C. E., § 59,-for present practice.)</p> <p>2. The act requiring the. signature of a Judge to authenticate his judgments and decrees is directory only, and such signature is not essential to their validity.</p> <p>3. Where a surety, upon the conveyance of land by his principal to in*, denmify him against his contingent liabilities, substitutes his own note for that of his principal, the original liability remains undischarged, and the creditor is entitled to avail himself of the security, which he may enforce whether the surety is or is not damnified.</p> <p>4. A successful plaintiff cannot be made to forego the advantages of his victory because Ms opponent, defending in a representative capacity has fraudulently omitted to set up an available defense, if such failure-was not the result of collusion with the plaintiff.</p> <p>5. To entitle a party to the revision of a judgment on the ground of' newly discovered evidence, the evidence must not he merely cumulative, nor such as ordinary diligence would have discovered in time for the first trial, nor then in the possession of the counsel or agent of the party.</p> <p>6. Under the present practice it is not necessary to obtain leave of the-court in order to bring an action in the nature of a hill of review.</p> <p>{Rollins v. Henry, 78 C., 342; Wiswallv. Potts, 5 Jones Eg., 1S4; Bank v. Jenkins, 64 3ST. C., 719; Harrison v. Styres, 74 3ST. C., 290; Love v.. Blewit} 1 Dev. & Bat. Eg., 108; Greenlee v. McDowell, 4 Ired. Eg., 481; Bledsoe v. Nixon, 69 ÍT. 0., 81, cited and approved.)</p>

Civil Action tried at Spring Term, 1881, of Yadkin Superior Court,'before Seymour, J. The plaintiff declares on two causes of action : First, That in the year 1863 there were certain parties under indictment in the county of Yadkin, whose causes were removed for trial to the county of Surry, of which latter county the plaintiff was at the time the sheriff and jailer.

Motion, by defendant to vacate a judgment, heard at Spring Term, 1881, of Chatham: Superior Court, before Avery, J. The action is to enforce an alleged parol trust upon land, for an account to ascertain the residue of the encumbering debt and for redemption.

<p>Civil ActioN tried at Fall Term, 1881, of Mecklenburg Superior Court, before Avery, J.</p> <p>Judgment for plaintiff, appeal by defendant.</p>

Civil Action heard upon complaint and, demurrer at Spring Term 1881, of Rowan Superior Court, before Seymour, J. -The summons commanded the sheriff to summon the board of commissioners of Rowan county, composed of D. A. Davis, J. G. Fleming, G. A. Bingham, D. C. Reid, and W. M. Kincaid, to be and appear, &c. The plaintiffs in their complaint allege substantially as follows : That they obtained judgment before a justice of the peace, in Rowan county against one W. H. Kestler,…

<p>Special ProceediNG for account and settlement, commenced in the probate court, and heard at Fall Term, 1879, of Stokes Superior Court, before Gilmer, J.</p> <p>Granville Wall died in 1859 intestate, and administration on his estate was committed to his widow Mary F. Wall who entrusted the entire management of the business to her father, the plaintiff. At September term, 1860, of the county court of Stokes, the plaintiff was appointed guardian to the defendants, infant children of the intestate, and gave bond as required by law. At May term, 1861, commissioners were appointed by the same court to audit the administration account then exhibited, which was done and they made their report showing to be due from the administratrix to the distributees the sum of $7,384.79, whereof she and her two children were each entitled to $2,462.59. This fund derived from the sale of slaves and other personal estate consisted mainly of bonds which were transferred to the plaintiff and thereafter held by' him as guardian. The intestate also owned at his death a large and valuable tract of land which on a petition filed in the names of the widow and the infant defendants in the court of equity of Rocking-ham, where the land was situated, was sold under a decree rendered at the fall term, 1859, for $9,100 to one J. B. Vaughn. The sale was not confirmed and a re-sale was ordered at which on June 16, 1860, R. B. Webster became the purchaser at the price of $10,861, and gave his bonds for equal parts thereof, payable at 6 and 12 months. The clerk and master in his report thereof, pursuant to an interlocutory order, ascertained and reported the value in pre-sentí of the widow’s dower right on the fund at $2,500. The land was sold at the suggestion of the attorney whose professional advice and aid had been sought in conducting the administration, that thereby the dower interest could be converted, into an absolute sum of money, and the plaintiff also concurring in the expediency of the change of the real estate into money, as the family were to remove and thereafter reside with him, and the necessary renting would damage, and deteriorate the propeity during the long minority of the infants. The moneys due for the land were paid to the guardian in different sums and at different times as appears from his receipt to the clerk and master as follows: On September 21, 1861, $200; on March 8, 1862, $1,000; on July 15, 1862, $2,500; on August 11,1862, $2,000; on August 26, 1862, $5,000; on June 4,1863, $600; and on July-28, 1868, $600, the residue.</p> <p>The defendants having arrived at full age, the present suit was brought against them for a settlement of the trust estate before the probate judge, who took a large volume of oral and other evidence relating to the guardian’s administration, and stated in detail the account of his receipts, disbursements and investments, in which he finds the plaintiff indebted as follows: To James G. Wall on June 1, 1875, $497.89; and to Robert N. Wall on June 1, 1876, $755.75.</p> <p>In reaching this result the plaintiff is charged with the sum of $325.26, due to each ward which the plaintiff had erroneously applied as commissions in reduction of the shares of his wards in the balance transferred from the adr ministration account, while it appears the claim had already been allowed and deducted. As to the correction of this obvious error, there is no dispute. The accounts between the güardian.and his wards are stated upon the basis of annual rests, and the carrying the successive balances of each year into the next as in ordinary guardian settlements.</p> <p>To the report the plaintiff takes a single exception to each account, in that, he is entitled to and not allowed a credit, as compensation for his services in managing the estate, a sum he claims sufficient to extinguish the indebtedness arising out of the error in the reduction of the sum received from the administratrix.</p> <p>The defendants file numerous exceptions which are substantially comprised in these:</p> <p>1. That the plaintiff is not charged with the debts due by T. L. Wall, Robert Lewis, Elizabeth Carter and Booker.</p> <p>2. That he is not charged with the proceeds of the sale of the land, needlessly and negligently collected and lost.</p> <p>3. That the plaintiff is not found to be negligent and careless in collecting the well secured funds of the estate, and investing them in securities of the Confederate States, and is liable therefor.</p> <p>These exceptions were all overruled by the probate judge, and upon appeal that of the plaintiff was sustained, and those of the defendants which apply to the $1,230, the residue of the sales of the lands, collected in June and July, 1863, and all others overruled. From these rulings adverse to either, the parties respectively appeal to this court.</p>

<p>Trusts^-ExecUtion Sale-^-Statute of Limitations^-SiipreMe Court — Power Oder Verdicts.</p> <p>1» A‘husband, as trastee of his wife, Was directed by a decfee of court -to purchase with her funds, and to take a conveyance to her separate use for life, with remainder in fee to his and her children. Instead of doing so, he took a deed “ to the only proper use and benefit of the said B. M., [the husband! trustee of E. A.-, [the wife] her heirs and assigns forever': Held,</p> <p>(1) That the children mentioned in the decree 'were the equitable owners o'f the remainder in fee^</p> <p>(2) That the possession of the 'father under such conveyance was not adverse to the remaindermen-, and hence, the statute of'limitations would not run during the life-time of the mother to the prejudice of the children $</p> <p>(3) That the purchaser of the feme’s estate at an execution sale, after the death o'f the husband^ took hef interest subject to the equities of the children.</p> <p>2. The supreme court, being a revisory and appellate tribunal,- cannot enter or reform verdicts, and when- errors have entered into them it can only set aside such verdicts and’ award a venire de novo.</p>

<p>Civil ActioN tried at Spring Term, 1881, of Guilford» Superior Court, before Avery, J.</p> <p>Defendant appealed from the order of the court below.</p>

This is an appeal from an interlocutory order of the superior court, directing an account to be taken of the administration of the estate of Rachel Stokes-, which came, 'or ought to have come, to the hands of Jacob Fraley, the administrator de bonis■ non thereof. The defendants are the sureties on the bond given by the said Fraley as such administrator.

Civil Action, tried at Spring Term, 1881, of Wilkes Superior Court, before Seymour J. This is an action for the recovery of the possession of certain lands, sold by the sheriff of Wilkes county for taxes. The lands had formerly belonged to the father of defendant, but after his death, his sons took the possession in 1864, claiming title under his will, This possession they continued to hold until 1869, when a deed was made by J. 0.

<p>Civil ’Actiom for damages, tried at Fall Term, 1880, of Chatham Superior Court, before Eure, J.</p> <p>Verdict and judgment 'for plaintiff, appeal by defendants.</p>

Civil Action tried at Fall Term, 187&,. of Yadkik Superior Court, before Gilmer, J. This wtas an original bill in equity, filed at the spring term, 1866, of Iredell superior court of law and equity by the plaintiffs against the defendants, to vacate a judgment of the county court of Iredell county, to set aside a sale iiiider said judgment,, and for am account and settlement of «the administration of -the estate of Offa Williams, deceased, •by the defendant James W.…

The plaintiffs allege that in 1849 Joel Rushing, the intestate of the defendant, Henry, was appointed the guardian -of the female plaintiffs, Emeline P. Williams and Margaret .Ann Broadaway, and took into his possession their estate ■which came to them from their deceased father, and died without having accounted to them therefor, and the prayer •of the complaint is for an account now to be taken.

<p>Proceeding- for partition commenced in the Probate Court of Buncombe County and heard by consent .at Chambers on August 12th, 1881, before Gudger, I.</p> <p>The defendants appealed from the judgment rendered.</p>

<p>CONTROVERSY withoút action under the Code § 315 heard at Chambers on the 29th of September, 1881, in a case pending in Wake Superior Court, before Gilmer, J.</p> <p>The avowed purpose of this action is to remove an alleged cloud upon the title to a certain lot of land, in the city of Raleigh, owned by the plaintiff. In his complaint he states that in the year 1849, Mrs. Marion Hardie, .being then, the rightful owner of the lot in question, undertook to convey the same to one George Plardie in trust for the sole and separate use of her daughter, Ann Eliza Macy, and her children who are the defendants, but that the deed then made is void on its face because of the uncertain description of the land therein contained. That the said Mrs. Hardie afterwards, to wit, in the year 1862, made an effectual conveyance of the same land to Fendt and Hesselbach under whom the plaintiff claims by mesne conveyances and sale under execution. The prayer of the complaint is that the first deed from Mrs. Hardie to her daughter and children be declared void, and the defendants decreed to have no title to the lot by reason of its insufficient and uncertain description of the land. There was no answer filed for the defendants, but an appearance made for them by an attorney who, together with the attorney of the plaintiff, made a statement of the facts as to the situation of the lot, and the conduct and intention of Mrs. Hardie with reference thereto, and submitted the same, as a case agreed, to the judge presiding in the court below, who held the deed under which the defendants claim to be ineffectual to pass any title, and declared the same to be no cloud upon the title of the plaintiff, from which judgment the defendants appealed.</p>

CONTROVERSY without action- under the-Code, section 315,-heard at Fall Terra, 1881, of Waee Superior Court, before-Gilmer, J. The plaintiff appealed- from the judgment of- the court below.

<p>Civil Action tried at Fall Term, 1881, of Buncombe Superior Court, before McKoy, J.</p> <p>Verdict and judgment for plaintiff, appeal by defendant..</p>

<p>Appeal from» the ruling of the clerk,.heard at Chambers-at Fall Term, 1880, of Davidson. Superior- Court,, before-McKoy, J.</p> <p>Defendantsappealed from the judgment of the court below..</p>

<p>Civil Action for divorce, ® mensa et .thoro, tried at Fall Term, 1880, of Rutherford Superior Court, before Sexj-mour, J.</p> <p>The summons was issued on the 26th day of February, 1878. The plaintiff alleged numerous instances of cruel .-and barbarous treatment, endangering her life, and repeated ¡indignities offered to her person, rendering her life burden-isome and her condition intolerable, occurring during their married life,, without stating the time, place, or circumstances. But the petition further alleged that .about the last of .January or first of February preceding the commencement of (this action, the parties had a child at home quite sick, needing greatly the attention of both its parents, and while the ■child was in this low state of health from which it soon (thereafter died, the defendant was drinking a good deal and .abusing plaintiff, and threatening her life, and on one night about this time, he was drinking and as usual abusing the plaintiff, and ordered every person from the house who -could protect her, there being several persons visiting the .■sick child, and abused and cursed hep threatening her life And finally told her she must leave, that he wished she was dead and in hell. He told her that she must leave that ¡night or the next morning. That being greatly alarmed and fearing that her life would be taken,. she waited until' late in the night,.and until the defendant had fallen asleep,, and then in the darkness accompanied by a nephew she left her little children, and her little dying boy, and sought, safety in her father’s house several miles away, verily believing that if she remained her life would . be taken. No* consideration except to seek safety from a- violent death, would have induced' her to leave at that time and under the-circumstances.</p> <p>The defendant answered the complaint substantially denying the allegations thereof, and thereupon the following issues were submitted- bo- the jury;</p> <p>1. Did the defendant on a certain night in January of February, 1878, maliciously turn plaintiff out of doors?</p> <p>2- Did defendant on a certain night in January or February, 1878,. while- a child of the parties-was at home sick, and needing attention,, (from which- sickness- it soon after died)1 get drunk and abuse plaintiff, threaten, her life, and order' every person from- the- house who could protect her; swear at her and order her to-leave his house ? and did plaintiff by reason of fear of personal violence, and of fear that her life was-in danger, caused by such threats in the same night,, leave-defendant’s house and take refuge with her father ?</p> <p>The defendants objected to the issues submitted on the-ground that the transactions of January or February, 1878, did not occur six months before the-beginning of the action.. The objection was overruled.</p> <p>The defendants- asked the court to charge the jury that the facts in the case were insufficient to- constitute ground for a divorce. Bis Honor refused to give the charge.</p> <p>The jury responded to both of the- issues in the affirmative, and thereupon the court adjudged and decreed that the plaintiff be separated from- the- bed and board of the defendant and be. allowed alimony; &c., from- which judgment-the defendant appealed-</p>

<p> Surety and Principal. </p> <p>Where a creditor secured in an assignment of the principal debtor’s property receives his share of the fund, he cannot afterwards assert the discharged part of the debt against the surety.</p> <p>(Brown v. Bank, 79 N. C., 244; cited, distinguished and approved.)</p>

<p>MotioN heard at Fall Term, 1881, of Alamance Superior Court, before Oudger, J.</p> <p>From the judgment below, the .petitioner, O. J. Cowles, appealed to this court.</p>

<p> Injunction. </p> <p>An injunction will npt be granted to-restrain the erection of a planing ■ mill and cotton gin (in process of construction) upon an allegation by plaintiff that the same, when completed, will expose his premises to-increased perils of fire, and that the noise, &e., will render his dwelling unfit for a residence.</p> <p>('Barnes v. Calhoun, 2 Ired. Eq., 199 ; Ellison v. Corn'es, 5 Jones Eq., 57 y Hyatt v. Myers, 73 NT. C., 232; Simpson v. Justice, S Ired. Eq., 118 y Eason v. P’erkins, 2 Dev. Eq.,. 3S-; Wilder v. StvicMand, 2 Jones Eq'.., 3SG. cited and approved.!</p>

<p>PETITION to rehear, tried at October Term, 1881, of The SupbeMe Court.</p>

<p>Practice — Devisavit vel non' — Might to open ct/ncl Condude — ~ Witness. . -1</p> <p>I. Tfie trial of’ an issue, of devimvit vet non is a-proceeding in rent to-which there are strictly no parties and' when- upon the trial of such1 issue the caveators admitted the execution of the will' according to the-forms of law and that the testator was of age, leaving only the question of his- sanity to be tried It was held, that the caveators-were-not entitled to open and- conclude the ease.-</p> <p>2. The fact that an attorney has had’an interest in the event of a suit on account of the tax-fee, does not disqualify him under C. C. P., § MS', from testifying as to a- transaction or communication with- a j>erson deeeased,-</p> <p>(St. John’s Lodge v. Callender, 4 Ired , 335; Mayo v. Jones, 78 N. C.,-402 ;• MeBae'f. Lawvenee, 75-3ST. C., 289, cited an-d approved.)1</p>

Motxo-n by defendant to-set aside a judgment heard at .Fall Term, 1880, of Buncombe Superior Court, before Gil-mer, J. The judgment was rendered against defendant at spring term, 1880, and he moves… Held: and could have known the day on which his-case was set for trial by enquiring of his counsel, the clerk, or by reference to the calendar, and he was sick for two -weeks and confined to his house until two or three days before Wednesday of the third week. ‘6.

Motion by defendant to set aside a judgment heard at Pall Term, 1881, of Iredem, Superior Court, before Seymour, J. The defendant applies to tbe court to be relieved from a judgment rendered for his failure to answer the plaintiff’s complaint, of which motion be bad given notice, and therein assigned as the reasons therefor that he did hot have legal notice of the-action, and furthermore was sick and unable to be from home during the months of November and December, 1879-,…

<p>Taxation — Shaves in National Banks.</p> <p>J. It is not only competent but the duty of county commissioners to rescind an order improvidently granted to release one from-the assessment of a legal tax upon property.</p> <p>2. Remarks of Smith, C„ J.,. upon the right of the state to tax shares of st'ock in national banks, where there is no discrimination against such) shares and in favor of other moneyed capital in the hands of individual citizens of the state.</p> <p>iLondon v. Wilmington, 7SN. 0^ 109, cited and approved.)</p>

MotioN to vacate a judgment and set aside an execution heard at Spring Term, 1880, of DupliN Superior Court, before Avery, J. The defendant appealed from the ruling of the court below.

<p>MOTION by plaintiffs for injunction to restrain collection ■of certain tax, heard at Chambers in Charlotte on the first day of November, 1880, before Seymour, J</p> <p>By the act of March 22d, 1875, the board of aldermen of Charlotte were authorized, upon the application of ten voters' resident in each of the wards into which the city i§ -divided, to order an election and ascertain the sense of the qualified voters therein upon the submitted proposition to establish and maintain by taxation a system of graded schools. An election was accordingly held under the directions of the act, on the first Monday in June, 1880, whereat were cast eight hundred and sixteen votes, all with a single exception in favor of the measure. There was .no new or revised registration made in contemplation of the election, and the books contain the names of one thousand, six hundred and seventy nine voters, of which those voting are not a numerical majority ; and before declaring the result, upon a suggestion that the lists were inaccurate and did not truly represent the number of resident voters at the time of the election, the board appointed a committee of their number to examine and revise the lists and make report thereof. The committee performed this duty and reported a correction by the erasure of one hundred and thirty-three names from the registry, and a majority of all the qualified voters of the city to have voted in fa'vor of a graded school. The report was received and adopted, and the result of the vote declared.' Thereupon a tax of one-tenth of one per cent, on the value of property, and thirty cents on the poll, was levied, and the tax list placed in the hands of the city marshal for collection pursuant to the requirements of the law. The present suit, instituted by the plaintiff on behalf of himself and other tax-payers, seeks to restrain the collection of the tax thus imposed, on the ground that a majority of the legal voters, as conclusively determined by the registrar's books, and not open to disproof, have not sustained the proposition submitted to them, and that consequen tty the tax is unauthorized and illegal. Upon the hearing of the application for a temporary' restraining order, affidavits were offered by the defendants showing errors in the registry, and reducing the number of voters as therein contained, from deaths, removals, and other causes, to an extent that leaves the votes cast for the school in excess of a majority of the whole, and His Honor finds therefrom as a fact that a majority of the entire number of qualified voters in the city had voted in favor of the school. The - restraining order was refused and the plaintiffs appeal.</p>

<p>Civil Action tried at Fall Term, 1881, of Cl.ay Superior Court, before McKoy, J.</p> <p>The defendant appealed from the judgment of the court below.</p>

Motion by defendant for a restraining order and to vacate-a judgment (rendered in Macon Superior Court) heard at-Chambers on the 2-lst of September, 188=1, before McKoy,,J. His Honor granted a temporary restraining order but refused to vacate the judgment and the defendant appealed to* this court.

MotioN to issue execution heard on appeal at Chambers in Waynesville, Haywood county, on the 30th of July, 1881, before Gudger, J. This was an application to the clerk of the'superior court for Haywood county to issue a venditioni exponas to sell a lot of land which had been charged in a partition of lands in favor of a lot of less value for equality of partition.

<p>Civil Action, to recover land, tried at August Special Term, 1880, of Dupltn Superior Court, before Schenck, /.</p> <p>The plaintiff appealed from the judgment of the eouit below.</p>

Civil ActioN to recover land tried at Spring Term, 1881, of Burke Superior Court, before McKoy, J. The following issues were submitted to the jury: 1. Are the plaintiffs the owners of and entitled to the possession of the lands described in the complaint? Answer, they are. •2. Were the defendants in possession of the land and wrongfully withholding the same? Answer — they are in possession thereof.

<p>Special. Proceeding, for sale of land for partition commenced in the probate court,and heard at Fall Term, 1881, ©f HENDERSON Superior Court, before McKoy, J..</p> <p>The demurrer of the defendants to the amended complaint of plaintiffs was sustained by the court upon the-ground that the probate coart had no jurisdiction of the.subject matter it contained, as set out in the opinion of this court, from which ruling the plaintiffs appealed.</p>

Civil action tried, at January Special Term, 1881, of Sampson Superior Court, before McKoy, J. The suit is brought by Charles H. Bronson and Edmund B. Owens, administrators of John E. Spearman, deceased, against the Wilmington North Carolina Life Insurance Company and its stockholders. The facts appear in the opinion. Demurrer overruled, judgment, appeal by defendant.

<p>Motion for judgment nunc pro tunc, heard at Fall Term, 1881, of Yadkin Superior Court, before Eure, J.</p> <p>.. The plaintiff is the widow of Isaac Long, who died in 1873, and the defendant is his administrator. In October, 1873, the plaintiff made due application to the defendant for an assignment of a year’s support for herself and family. The defendant immediately applied to a justice of the peace, who-together with two persons qualified according to law, proceeded to ascertain the number of persons constituting the family of the plaintiff, and make the allotment required. They ascertained her family to consist of six children under fifteen years of age, and assessed her allowance at nine hundred dollars.</p> <p>The personal property assigned to her, they valued at $651.20, thus leaving a deficit to be paid her in money of $248.80. The justice, as required by law, filed a list of the articles assigned to her, stating the value of each and the deficiency to be paid the plaintiff, with the clerk of the superior court, who received and filed the same, but omitted to enter judgment against the defendant for said deficiency. The defendant has made payments to the plaintiff on account of said allotment, the last in 1880.</p> <p>Finding that no judgment had been entered in her favor, the plaintiff after giving the defendant notice, on the 7th day of July, 1881, moved the court to enter judgment against the defendant for the amount due her according to the assessment of the commissioners, subject to credits for the amounts that had been paid her thereon, making an affidavit that there was a balance still due to her on account of the same. The defendant filed.an affidavit also, in which he substantially admits the facts as above stated, but says he is advised that the plaintiff’s claim against him is barred by the statute of limitations, and he pleads the same.</p> <p>The clerk of the superior court allowed theplain tiff’s motion and gave judgment in her behalf, from which the defendant appealed to the superior court, and the judgment of that c.ourt being also against him, he appealed to this court.</p>

Application of a sheriff for advice, &c., heard at Fall 'Term, 1881, of DavidsoN Superior Court, before Eure, J. The sheriff of Davidson county applies to the court for its advice and direction in… Held: and so ordered, that the money must first be applied in satisfaction of the sums assessed upon the more valuable dividends in the proceeding for partition, and from this order the said J. H. and N. -A. Peebles appealed,

The following is the case agreed; One Hoke C, Secrest, a citizen of Union county, North Carolina, in passing through Burke county was charged with the murder of his wife and child. A bill of indictment was found against him by the grand jury of Burke county. Afterwards the case was re* moved to McDowell county for trial, and at the next term of the superior court held for McDowell, the said Hoke 0. Secrest was tried and convicted.

<p>Civil ActioN tor damages tried at Fall Term, 1880, of Mecklenburg Superior Court, before Seymov,r J.</p> <p>Judgment for plaintiffs, appeal by defendant.</p>

Civil Action removed from Caldwell and tried at Fall Term, 1881, of Burke Superior Court, before Seymour, J. The action was brought to recover the value of a certain lot of cotton. Judgment for plaintiffs, appeal by defendant.

Civil Action tried at Pall Term, 1881, of Mecklenbue®-Superior Court, before Avery, J. Tl^e suit is brought by the First National Bank of Charlotte and the Atlantic, Tennessee and Ohio Railroad Company, plaintiffs, against the City of Charlotte, defendant, to recover the amount of coupons of certain bonds issued by the defendant city. The facts are set out in the opinion of this court. The defendant appealed [from the judgment of the court below.

Civil Action tried at Spring Term, 1880, of McDowell Superior Court, before Gilmer, J. The plaintiff, being the sheriff of McDowell county in 1874, employed the defendant Freeman to aid him in the collection of taxes for that year, and took from him as principal and the other defendants as his sureties, a bond, dated September 14, 1874, the condition of which was that, if the said Freeman should collect or cause to be collected, and pay over unto the said sheriff, the taxes…

<p>Civil ActioN tried at Fall Term, 1880, of Wake Superior Court, before Graves, /.</p> <p>The case was tried upon complaint and demurrer. The demurrer was overruled and the defendant appealed.</p>

Civil Action heard upon complaint and demurrer at Rail Term, 1881, of OitANGE Superior Court, before Gudger, J. This was an action in the nature of trespass quare dausum fregit, brought by the plaintiff against the defendant for an injury to his land by entering thereon and appropriating and occupying the same for constructing a railroad under a charter granted by the legislature, by which entry and occupation it was alleged the plaintiff had sustained great damage.

Civil Aotion tried at Fall Term, 1880-, of RutbeRfoe.» Superior Court, before Seymour, J. This action was brought to enforce the- specific performance of a contract for the purchase of land alleged to have been entered into between the plaintiff Tuttle and the defendant, and for the possession of the same land. The action was originally brought in the name of the plaintiff Tuttle alone, the plaintiff Logan being entered a& his attorney of record.

<p>Civil-Action tried at Spring Term, 1881, of Yancey Superior Court, before McKoy, J.</p> <p>Judgment for plaintiff, appeal by the defendant.</p>

<p>Civil Action, tried at Spring Term-, 1881, of Wake Superior Court, before SchencJc, J.</p> <p>This was an action to foreclose a mortgage. After the pleadings were made up there was a reference under the Code to R. T. Gray, Esq., who found the facts to be as follows : The Raleigh Co-operative Building and Loan Association, owning the land mentioned in the pleadings, on the 14th day of June, 1869, contracted to sell the same to the defendant, John Dickerson, at the price of $400, and gave him a bond.for title when the purchase money should be paid. On the 16th day of November, 1874, Dickerson and wife gave their bond to the firm of Thompson & Whitaker for the sum of $275, and at the same time executed a mortgage upon the land as a security for the debt, which mortgage was immediately registered. Soon thereafter Thompson.assigned to his partner, Whitaker, his interest in said bond and mortgage. On the 8th of February, 1877, Whitaker borrowed money of the plaintiff, F. O. Moring, as treasurer of the Merchants’ Protective Association, and assigned his interest in said bond and mortgage as a collateral security therefor. In 1878 said Whitaker was adjudged a bankrupt,and the defendant Fray was appointed his assignee.</p> <p>On the 14th day of May, 1876, in order to complete the payment of the purchase money for the land, and procure a deed from the said Raleigh Co-operative Building and Loan Association, the defendant Dickerson agreed to purchase of the defendant Viney Farrar four shares of stock, which she owned in said association, of the market value of $100 per share, and to pay therefor the sum of $600, to be secured by a mortgage on the land. [ThaB no certificates of stock were ever issued by said association' to its stockholders, and all transfersof stock were therefore made upon the books of the company.</p> <p>In pursuance of said agreement the parties met with the treasurer of said association, when the four shares of stock, then owned by the defendant Viney, were surrendered and cancelled; and in consideration thereof the association then executed a deed to Dickerson, who at the same moment, and through the aid of the same draughtsman, executed a mortgage upon the land to the said Viney for $600.</p> <p>Upon the basis of these facts, the referee concludes, as matters of law, that the defendant Dickerson had an equitable interest in the land capable of being transferred by his mortgage to the firm of Thompson & Whitaker. That the defendant Viney Farrar had constructive notice of such mortgage at the time she took her mortgage on the 4th of May, 1876; and therefore the lien of her mortgage is junior to the other, and he recommends a sale of the premises and an application of the proceeds in the manner indicated. To this report the defendant Viney Farrar excepted, and insisted upon her right to have her mortgage first satisfied out of the proceeds of the sale of the land, but the court overruled her exception, and gave judgment according to the recommendation of the .referee, from which the said defendant appealed.</p>

<p>Practice — Bight to Open and Conclude — Note—Consideration.</p> <p>1. Plaintiff alleges non-payment of note ; defendant admits its execution and avers that the consideration thereof was an article bought of plaintiff and warranted by him to be good, but whicli turned out to bp worthless, and sets up counterclaim for alleged losses in its use ; Held, the admission in the answer established & prima facie casé for plaintiff, and the onus rested on defendant, thereby g'iving him the right to open and conclude.</p> <p>2. An unsealed note which upon its face states a consideration, or to be for “ value received,” furnishes proof prima facie of a consideration to support it.</p>

Civil Actios, tried at Spring Term,, 1880, of Mecklen-burg Superior Court, before McKoy, J. The complaint states that in May, 1857, A. E. Sadler (the; defendant’s intestate) and one William Clan-ton executed a note under seal to Eliza Cathey, for two hundred and thirty dollars-, payable one day after date,-and in July, 1864, the feme plaintiff purchased the note from said Cathey for a valuable consideration,, and no part of the same has been paid, except-the interest for one…

<p>Mortgagor and Mortgagee — Possession by — Presumption.</p> <p>Although a mortgage deed with unexecuted trusts is not color of title so as to give effect to a seven years’ adverse possession under it, yet the morgagee’s actual possession of the land for ten years after default raises a presumption of a release of the equity of redemption — and a discharge of the secured debt and a reconveyance would be presumed by a similar possession in' the mortgagor.</p> <p>{Barnes v. Brown, 711ST. C., 507; Bay v. Pearce, S4 ÍT. C., 785, cited and approved.)</p>

<p>Evidence under Section 343— Transaction with Person Deceased.</p> <p>a party to an action is not incompetent under section 343 of the Code to testify to a transaction between the witness and a person deceased at the time of such examination, where the representative of the deceased is not a party to the suit. Held further: where the defendaut opens the door by his own evidence as to such transactions, the matter is set at large, and the plaintiff’s contradictory testimony becomes competent.</p> <p>(Bryant v. Morris, 69 N. C. 444; Shields v. Smith, 79 N. C. 517; Murphy v. Bay, 73 N. C. 688, cited and approved.)</p>

<p>Jurisdiction — Pending of Forme)' Suit — Receiver—Corporation— ' Affidavit— Verification.</p> <p>1. The prior jurisdiction acquired by the pendeney of a former action in which an injunction and receivership are sought, will exclude -the interference of the court in another suit of which the principal object is the same provisional remedies.</p> <p>%. When a corporation has become extinct by legislative enactment, and its powers and property transferred to a new corporation substituted for it, the courts have no power, on an ex parte application, to appoint a receiver of the assets of the defunet corporation.</p> <p>3. An order appointing a receiver of the extinct corporation cannot properly be made except in a proceeding to which its suceessor or substitute is a party.</p> <p>4. The offiee of receiver should not be conferred upen a party to the cause.</p> <p>5. An affidavit upon which an application for a provisional remedy is based, is sufficiently verified when made before a commissioner for this state resident in another state, and authenticated by his official signature and seal.</p> <p><3. When the defendant in an application for a provisional remedy meet the plaintiffs’ allegations by counter affidavits, it is competent for the plaintiffs to support their original affidavits by others to the same-effect and in reply to those offered by the defendants.</p> <p>\R. R. Co. v. Rollins, 82 N. C.., 523; Childs v. Martin, 69 N. C., I264 Haywood v. Haywood, 79 N. C., 42; Page v.. Price, 78 N. Ch, 10, cited and approved.)</p>

MotioN in the cause heard .at Pall Term, 1879, at Buad-en j ¡Superior Court, before Seymour, X. This cause comes to this court upon the .appeal of James I I. Kemp and wife Elizabeth, from the ruling of the superior I court of Bladen county upon their petition for relief, filed in a proceeding theretofore had in the old court of equity, under which the interest of the said Elizabeth in certain lands had been ^old.

Civil Action on a guardian bond tried at Pall Term, 1881, of Iredell Superior Court, before Seymour, J. The defendant J. M. Turner was appointed the guardian of the feme plaintiff in the year 1866, and the other defendants are the sureties to the bond given by him as such. Trior to such appointment, one Benjamin Turner, her father, had been her guardian and had received portions of her estate.

INDictment for abduction, tried at Spring Term, 1881, of Ashe Superior Court', before McKoy, J. The indictment was found in the inferior court of Ashe county, and charges that the defendant did unlawfully take one Rebecca Thompson, an unmarried female of the age of fifteen years, out of the possession and against the will of her father, with the intent to defile her, and concludes against the form of the statute.

Indictment for an assau-lfc with a deadly weapon, tried at Fall Term,- 1881, of Bukke Superior Court, before Seymour, J, The state introduced one W. E. Powe as a witness, who testified that as he was on a sidewalk of a street in the town of Morganton (near the store of one Brittain) the defendant who was on the other side of the street some twenty steps distant, commenced cursing him, and told him he intended to cut his throat and kill him.

<p>Proceeding in Bastardy — Perjury— Variance.</p> <p>1. It is not proper to join the mother of a bastard child with the state in a proceeding to fix the paternity upon the putative father.</p> <p>2. Where the putative father is indicted for false swearing on his own behalf in such proceeding, under a bill which describes the cause as constituted between “ the state as plaintiff and the said J. C. as defendant,” ancl the record of the cause, put in evidence by the solicitor, shows that the mother of the child was joined with the state as a party, there is no material variance.</p> <p>{State v. Brown, 79 N. C., 642 ; State v. Davis, 69 N. C., 495 ; State v. Pate, Bush., 244; State v. Beatty, 66 N. C., 648, cited and approved.)</p>

PROCEEDING in bastardy commenced in a justice’s court and heard on appeal at Spring Term, 1881, of Chatham Superior Court, before Avery, J. As appears by the return of the justice of the peace, the warrant against the defendant issued on the 11th day of February, 1881, and it was returned and a trial had on the 22nd of the same month. The jury found the issue in favor of the defendant, and the state appealed to the superior court.

PROCEEDING- in bastardy tried at Spring Term, 1881, of Henderson Superior Court, before Bennett, J. The jury found that the defendant was the father of the child, and thereupon the court adjudged that an allowance of the two hundred dollars be made for its support and maintenance to be paid by the defendant in certain instal-ments* and that he give bond in the sum of three hundred dollars to keep the child from becoming a public charge.

<p>INDICTMENT for an assault with intent to commit rape, tried at Fall Term, 1879, of Haywood Superior Court, before Graves, J.</p> <p>' The defendant was convicted of the simple assault but not of the assault with intent to commit rape. Upon judgment being pronounced against him he appealed to the supreme court, when, at the January term, 1880, it was held there was no error in the proceedings had in the superior court. 82 N. C., 656.</p> <p>At fall term, 1880, of said superior court the defendant appeared before the court (Judge Gilmer presiding) and on motion of the solicitor for the district, judgment was pronounced against him that hé be imprisoned twelve months in the county jail and pay a fine of fifty dollars. From which, judgment the defendant appealed to this-court,, insisting that no punishment could be inflicted upon his conviction for this offence greater than a fine of fifty dollars- and thirty days imprisonment, and the court was restricted to these limits, and this is the only question- presented by the appeal.</p>

<p>INDICTMENT for an affray tried at January Term, 1881, of Wake Superior Court, before Graves, J.</p> <p>This is an indictment for an affray and for mutual assaults against the defendant and one Young.</p> <p>On the trial Young offered himself as a witness in his own behalf, and no objection was then made; but after he began to testify, the defendant Hamlet interposed the objection that he could not testify in his own behalf. The solicitor said he had no objection to the testimony of the witness in his own behalf, and was willing for him to tell all about the matter. The court allowed the witness to proceed, and the defendant Hamlet excepted. Both defendants were found guilty by the jury, and there was judgment accordingly. From which judgment the defendant Hamlet appealed.</p>

Indictment for a nuisance tried at August Term, 1881, of New Hanover Criminal Court, before Meares, J. The indictment charges the defendant with having committed a nuisance by obstructing a public street of the city of Wilmington. The particular nuisance complained of is that he kept a market cart standing in the street for the space of one and a half hours.

Indictment for a nuisance tried at Fall Term, 1880, of Greene Superior Court, before Gudger, J. This prosecution commenced in the inferior court of Greene county, where the defendant was tried and convicted. Upon his motion to arrest judgment being overruled, he appealed to the superior court, and on the hearing the judge affirmed the ruling below, and the defendant appealed to this court.

INDICTMENT for assault and battery, tried at Spring Term 1880, of Beaufort Superior Court, before Graves, J. This proceeding was commenced by a warrant and tried before a justice of the peace in Beaufort county.

■ Indictment for a misdemeanor, tried at Spring Term, 1881, of Hyde Superior Court, before Gilmer, J. The defendant was indicted (under act of 1879, ch. 232,) for selling spirituous liquors withing one and a half miles “ of the free church for all denominations to worship, commonly known as Rush academy,” and on the trial the jury found a special verdict in substance as follows: That the defendant, within two years of the finding of .the indictment, did sell spirituous…

INDICTMENT for illegally issuing a marriage license tried at Spring Term, 1881, of Stanly Superior Court, before Eure, J. The indictment was quashed upon the ground that no Indictable offence is charged in the bill, and the solicitor for •the state appealed.

INDICTMENT for larceny, tried at February Term, 1881, of the Criminal Court of New Hanover, before Meares, J. The defendant Grayson Jenkins together with William Lee, who was examined as a witness in the case, and four others were indicted for larceny and receiving stolen goods.

Indictment for larceny and receiving tried at June Term, 1881, of Wake Superior Court, before Shipp, J. The facts necessary to an understanding of the exception made by the defendant are' stated in the opinion of this court. The jury returned a verdict of guilty of receiving, &c., judgment, appeal by defendant.

<p>Practice — Appeal.</p> <p>1. To liave the effect of vacating or suspending a judgment in a criminal action, an appeal must be perfected during the term — whether by giving bond for the costs or procuring an order dispensing with such security.</p> <p>2. An appeal will .be dismissed on motion when, in the transcript sent up, there is no record of any trial, verdict or judgment, no errors assigned, or statement of the ease for appeal, and no appeal bond-or order dispensing with one.</p> <p><State v. Dixon, 71 N. C., 204, eited and approved.)</p>

<p>IndictmeNT for assault with intent to commit rape, tried at Spring Term, 1881, of Johnston Superior .Court, before Oudger, J.</p> <p>The defendant is charged with an assault and battery upon the body of one Margaret D. Stephenson with intent to commit rape, and found guilty of the assault and battery only.</p> <p>At the trial the court w-a.s asked to charge the jury that the defendant could not be convicted under the bill of indictment, unless the intent alleged was shown by the state. The court refused to give this direction, and instructed the jury that they- could convict of the offence imputed, or of the assault only, as the evidence satisfied them.</p> <p>To the refusal and to the instruction given the defendant excepts. Verdict of guilty, judgment,“appeal by defendant.</p>

INDICTMENT for a misdemeanor, tried at Spring Term, 1881., of Union Superior Court, before Eure, J. This indictment was found by the grand jury of the superior court of Union county at spring term, 1881, for a violation of section 32 of schedule B, of the act of 1879, eh. 70.

The defendants of record (Adams and Penny) were indicted in the inferior court of Wilson county upon, a charge of larceny, and one Whitley was marked as prosecutor on the bill.

<p>Larceny and Receiving — Election.</p> <p>On trial-of an indictment for larceny and receiving, &c., the two counts relating to the same transaction and varied to meet the probable proofs, the court will not order the solicitor to elect upon which count he will proceed.</p> <p>{State v. Eason, 70 N. C., 88; State v. Baker, 70 N. 0., 530; Statey. Speight, 69 N. 0., 72; State v. Jones, 82 N. 0., 685, cited and approved.)</p>

Criminal Action heard on appeal at Spring Term, 1881, of Stanly Superior Court, before Eure, J. The charge against the defendant is that of trespassing upon lands after being forbidden to enter by the owner thereof. Bat. Rev., ch. 32, § 116. The prosecution began in a justice’s court, and the only exception is as to the sufficiency of the warrant upon which the defendant was arrested and tried.

<p>Warrant for- trespass- on land heard on appeal- at Pall Term, 1881, of Henberson Superior Court, before McKoy, Jl</p> <p>This was a criminal action against the defendant, tried before a justice of the peace in the county of Henderson,, upon the folio-wing warrant:: “Information having been-made ta me, the undersigned justice of the peace for said-county, by the oath of James Bowen, setting forth that sometime during the month of March, 1880, in this county, Solomon Whitaker entered on bis premises without a license therefor, after being forbidden by the said James Bowen so-to enter, against the laws of the state, contrary to the form-of the statutes in such cases-made and provided, and against the peace and dignity of the stateThis is therefore to command you to arrest the said Solomon Whitaker if to be found in your county, and bring him before me or some other-justice of said county to answer the said charge, and be further dealt with as the law directs,” <fcc.</p> <p>The defendant was found guilty by the justice and sentenced to pay a fine, from which he appealed to the superior court, where at fall term, 1881, he was found guilty by a jury, and the judgment thereon was arrested by the court, from which the solicitor for the state appealed.</p>

<p>Larceny — Receiving—Accessories—Costs—Appeal.</p> <p>1. All felonious stealing being now reduced by statute (Bat. Rev., ch. 32, § 2o,) to the grade of petit larceny, that offence no longer admits of accessories.</p> <p>2. A receiver of stolen goods not being an accessory after the fact in the present condition of our law, the solicitor is not entitled under the act of 1873-U, ch. 170, to a fee of ten dollars upon his conviction.</p> <p>3. Where, upon application of the defendant to retax the costs, the solicitor’s fee is reduced from ten dollars to four, the solicitor has no right to appeal, the state having no interest in the result.</p> <p>State v. Groff, 1 Murpli., 270 ; State v. Gaston, 73 N. C., 93, cited and approved.)</p>

Indictment for forcible trespass tried at June Term, 1881, of Wake Superior Court, before Shipp, J. The defendant was charged with having forcibly and with a strong band “ entered the pi'emises of one P. L. Spencer, and there remaining for one hour in the public road in front of the house of said Spencer, using profane and menacing language'towards him in the hearing of his wife and daughter, against the will of said Spencer, and refusing to-leave when ordered so to do, the…

' IndictmeNt against the prisoner and others for rape, tried at Fall Term, 1881, of Haywood Superior Court, before McKoy, J. Verdict of guilty, judgment, appeal by prisoner.

<p>Inbictment for murder, tried at Fall Term, 1881, of Wake Superior Court, before Shipp, J.</p> <p>The indictment upon which the prisoner was tried is as follows: “ The jurors for the state upon their oath present that Richard Morgan, in Wake county, on the third day of January, 1881, feloniously, wilfully and of his malice aforethought, did discharge a gun loaded with gun powder and leaden bullets, against the right side of the head, a little ■above the ear of one Berry Bunch, inflicting a wound which produced instant death. And so the jurors for the state upon their oath do say, that the said Richard Morgan, the said Berry Buneh in manner and form aforesaid, and by the aforesaid means feloniously, wilfully and of his malice aforethought, did kill and murder, against the peace and dignity of the state.”</p> <p>The prisoner, was found guilty by the jury, and sentence of death pronounced by the court, from which judgment the prisoner appealed.</p>

INDICTMENT-for murder tried at Fall Term, 1881, of McDowell Superior Court, before Seymour, J. The prisoner was charged with the killing of Peggie Efler, his wife, on the 6th of January, 1881. The jury having found him guilty, he appealed-from the judgment pronounced upon the verdict.

INDICTMENT for murder, tried at Spring Term, 188-1, of Burke Superior Court, before McKoy, J. The jury found the prisoner guilty of the charge, and from the judgment pronounced he appealed to this court, where the state moved to affirm 'the judgment below, upon the ground that no error is assigned.