Volume 86 — North Carolina Reports

Civil Action tried at Fall Term, 1881, of Franklin Superior Court, before Gudger J. The action was brought to fall term, 1879, and the entry was then made on the docket — “Time to file pleadings.” The complaint was filed just before spring term, 1881, and is as follows: 1.

MotioN heard at Chambers in Raleigh on the 11th of February, 1882, before Graves, J. The plaintiff filed his complaint within the first three days of fall term, 1881, of the superior court of Rowan and the record shows an order to have been then entered “that the defendants have sixty days to answer the complaint ; or, as stated .in the accompanying case, “ in which to answer or demur.” Before the expiration of the time limited, it was prolonged by agreement of plaintiff’s…

<p>MotioN by plaintiffs for an injunction to restrain defendant commissioners from collecting a certain tax, heard at Fall Term, 1881, of Davie Superior Court, before Eure, J.</p> <p>The general assembly, at its session in 1881, passed an act intended, as expressed in its title, to prevent live stock from running at large in the counties of Davie and Anson, by erecting a fence around their boundaries, the fifteenth section of which is in these words :</p> <p>“ Whenever a majority of the qualified voters of said counties, or any township thereof, as appears by the returns of votes cast for the various electors of president of the United States at the last presidential election, shall by petition, duly signed, signify to the board of county commissioners of Davie and Anson counties, their approval of the provisions of this act, that thereupon the provisions of this act shall be in full force and effect; and the said board of county commissioners shall thereupon advertise by posted notices at five or more public places in each township in said counties, and in a newspaper in the town of Mocksville, the enforcement of the provisions of this act, and proceed to execute the duties imposed upon them by the provisions of this act; and the board of commissioners of Anson county shall likewise advertise by posting as aforesaid, and by publication in a newspaper established in Wadesboro; provided that before the commissioners of Anson county shall declare the provisions of this act in force, they must be satisfied that a majority of the qualified voters of said county have signed the petition herein provided for.” Acts 1881, ch. 172.</p> <p>The duties the board of commissioners are directed to perform aré prescribed in the tenth, eleventh and twelfth sections, as follows:</p> <p>§10. It shall be the duty of the board of county commissioners of Davie and Anson counties to erect a good and lawful fence around the entire counties Of Davie and Anson, or such townships therein as shall avail themselves of the pro» visions of this act, and to erect gates on all the highways leading into said counties, and to keep the same in good repair.</p> <p>§ 11. If the owner of any land.shall object to the building of any fence, herein allowed, his land not exceeding twenty feet in width shall be condemned for the fence-way as land is now condemned for railroad purposes by the North Carolina railroad company; provided that no fence shall divide a tract of land against the consent of the owner, but may follow the boundary lines thereof; provided further, that when a public highway divides a tract of land, the fence may follow the highway even against the consent of the owner of the land so divided.</p> <p>§ 12. That for the purpose of carrying out the provisions of section ten of this act, the county commissioners maj' levy and collect, as they do other taxes, a special tax upon all the real property taxable by the state and county within the county or township which may avail themselves of the provisions of this act.</p> <p>A petition approving and accepting the act and intended to fulfill the condition preceding its going into effect, containing the signatures of more than a majority of the electors who voted at the election designated, was presented to the commissioners; and, adjudging a compliance with its requirements, they proceeded to give public notice of the fact and to declare that the act had been approved by the necessary number of qualified voters, and would go into operation and be enforced on and after the first day of Mav, 1881.</p> <p>The present action was instituted on April 30th, the day preceding that fixed by the commissioners, and a complaint then filed reciting the substance of the enactment, and the action of the commissioners under it, and alleging as grounds of objection thereto, that</p> <p>1. The necessary number of qualified voters had not signified their approval, many of those whose names were signed not being such.</p> <p>2. The boundary fence would be thirty-five miles in length, onerously expensive to those who were to be taxed for its construction.</p> <p>3. The tax required would exceed the constitutional limit.</p> <p>4. The act had not been submitted to a vote and received the popular approval.</p> <p>5. The restriction of the tax to real estate violates the equality and uniformity prescribed in article' five, section three, of the constitution.</p> <p>6. The taking and appropriating lands for the fence-way cannot be done without indemnity to the owner.</p> <p>7. The requirement that stock be penned before the construction of the fence is premature and unwarranted.</p> <p>On May 2nd-application was made to the judge at chambers, supported by the verified complaint as evidence, for an injunction, and thereupon it was ordered that the commissioners show cause before him at Winston, on May 17th, why an injunction should not issue, and meanwhile they were restrained from taking further action in the premises. At the hearing of the motion an affidavit of one of the plaintiffs was introduced, containing lists of names of persons on the petitions of approval, who are alleged not to be on the registry of the different townships from which the several petitions profess to come, and also an affidavit of one-of the commissioners, avowing the integrity of the conduct of the board in making the canvass and ascertaining the result, and his belief, then and still, that the approval did proceed from a majority of the qualified voters of the county, His Honor denied the motion for an injunction and taxed the plaintiffs with the costs, from which ruling they appeal.</p> <p>At the fall term following, the plaintiffs make a second application to the succeeding judge for an injunction, and in its support offer an additional affidavit, and say that the commissioners have levied a tax upon the lands in their county, (while the state and county taxes for general purposes are 69-J cents upon-the hundred dollars valuation) of 25 cents additional in disregard of the limitations imposed in the constitution, and that they have improperly used and misappropriated portions of a balance in the county treasury collected for county purposes under the general law. This charge is met by a counter-affidavit of the same commissioner, who states that the fund applied to the building of the fence was intended to be replaced out of the tax levied under the act, none of which had yet come in, and that they intended to use no more of it, and that the 25 cent tax had been assessed in the manner prescribed by law.</p> <p>This motion was also denied, and the plaintiffs again appealed.</p> <p>Transcripts in both appeals are sent up and constitute two cases in this court.</p>

The defendant appealed, from an order appointing commissioners to assess damages for the condemnation of land, for the purposes set out in the opinion.

Civil Action to recover land tried at Fall Term, 1881, of Robeson Superior Court, before Graves, J. The summons in the case was returned to spring term, 1881, and the complaint was not filed until the fourth day of the term. No answer was filed by the defendant.

Motion to amend an answer, heard at Fail Term, 1881, of Macon Superior Court, before McKoy, J. The original complaint and answer were filed at spring term, 1873.

<p>Decree — Poioer of Court to Change.</p> <p>An interlocutory decree may be modified or rescinded during the pen-dency of the suit, upon sufficient grounds shown, to meet the justice and equity of the case.</p>

Civil ActioN tried at Spring Term, 1881, of Beaufort Superior Court, before Gilmer, J. The plaintiff declares as the endorsee of the fol lowing bond : “On the first day of January, 1862, we or either of us promise to pay George A. Latham or order the sum of one hundred and fifty dollars for the hire of negro man John, and we further agree to furnish said negro with all the usual summer and winter clothing and to pay his town tax.

Civil Action, tried at Spring Term, 1881, of Beaufort Superior Court, before Gilmer, J. The plaintiffs (Tredwell & Mallory, partners in trade,) declared as endorsees of a promissory note which is as follows : “On the first day of November, 1879, I promise to pay to the order of J. Rosenthal, the sum of two hundred and twenty-eight xVo- for value received.” (Dated January 20th, 1879, at Washington, N. C., and signed by Thomas H. Blount.) They allege in their complaint that…

Civil Action tried at Spring Term, 1881, of 'Beaufort Superior Court, before Gilmer, J. This action commenced on the 12th December, 1877, in a court of a justice of the peace, and is brought by successive appeals to this court.

<p>Notes and Bonds — Negotiable Instruments — Evidence—Burden of Proof — Competency of Witnesses at Common laxo.</p> <p>1. The possession of negotiable paper by an endorsee, whether past •due or not, is a prima facie presumption that he is the true owner, and forfvalue: and the burden of proof to rebut this presumption is upon him who alleges any defect in the title.</p> <p>2. But upon proof of fraud or illegality being offered, the burden is shifted to the bolder, and he must show that he received it bona fide for value.</p> <p>3. The assignee of a bond after its maturity, holds it subject to every de-fence existing between the assignor and the maker at the date of the assignment and before notice thereof, and hence the finding in this case that the assignment was not made in good faith and for value is immaterial.</p> <p>4. The effect of the act of 1879, ch. 183, amending section 313 of the Code, is to restore all the common law rules of evidence, applicable to a suit on a bond executed prior to August, 1868.</p> <p>5. And by the common law, all parties to an action and those having a direct legal interest in the event thereof, were excluded as witnesses, except where the interest of the person offered was equally balanced ; and coming within this exception is an endorser of a note, who is a competent witness for either party in a suit between his endorsee and the maker.</p>

<p> Claim against the State. </p> <p>1. The original jurisdiction conferred upon this court by article four, section nine, of the constitution, is for the benefit only of such plaintiffs, and to be used only in such cases, as cannot otherwise obtain a footing in court by reason of the state’s being a party.</p> <p>2. The claim against the state must be such as^against any other defendant, could be reduced to judgment and enforced by execution.</p> <p>3. An agent of the state is liable to ah action of trespass committed in his capacity as such.</p> <p>4. The Insane Asylum of North Carolina is a body corporate with capacity to sue and be sued.</p>

<p> Claim against the State. </p> <p>1. The state is not answerable in damages to an individual for an injury resulting from the alleged misconduct or negligence of its officers or agents.</p> <p>2. The original jurisdiction conferred upon this court by article four, section nine, of the constitution, “ to hear claims against the state,” is confined to such as are legal, and could be enforced if the state, like one of its citizens, was amenable to process.</p>

PROCEEDING to remove an administrator, commenced before the clerk as probate judge, and heard at Spring Term, 1881, of Orslow Superior Court, before Graves, J. The case was transferred to the superior court for the trial of issues of fact, and the plaintiff moved to remand it to the probate court on the ground of a want of jurisdiction of the subject matter of the controversy, as now constituted. The motion was denied, and the plaintiff excepted.

This was a motion made on October 10th, 1881, by the plaintiff to the presiding judge, for leave to bring an action upon a judgment in favor of the plaintiff against the defendants, Briley and wife.

<p>Mortgage, forelosure of-^-PartieSt</p> <p>In foreclosure proceedings, all the mortgagees and Judgment creditors as well as the mortgagor should be made parties, in order to a full adjustment of the rights of each.</p>

Civil Action tried at August Special Term, 1879, of Rutherford Superior Court, before Buxton, J. The plaintiff, as the deputy for the sheriff of Rutherford county, collected taxes to the amount of two hundred dollars, and deposited the same with the defendants’ intestate, with instructions to pay it to his principal, which it is alleged he failed to do.

Civil Action tried at Spring Term, 1881, of Wake Superior Court, before Schenck, J. S. D. Morgan died in 1864, and William Laws was appointed his administrator and died in 1871, before making a final settlement of the estate, but he had obtained judgment against divers parties indebted to his intestate, upon which executions were issued and money paid to the defendant, Bunting, as clerk of the superior court.

Civil ActioN tried at Spring Term, 1882, of Buncombe Superior Court, before Gilliam, J. This action is for money had and received, the plaintiff alleging that his intestate, who was the sheriff of Buncombe county, had placed in the hands of the defendant claims against the treasurer of the state amounting to one thousand dollars, which he had collected and failed to pay over.

Motion to set aside a judgment upon the ground of excusable negligence, heard at January Term, 1881, of WAKE Superior Court, before Graves, J. The judge allowed the motion and the plaintiff appealed.

<p>Motion of defendant to set aside a j udgment on the ground of excusable negligence, heard at Spring Term, 1881, of Jones Superior Court, before Graves, J.</p> <p>The motion was allowed and the plaintiff appealed.</p>

<p>Motion to set aside a judgment under section 183 of the Code of Civil Procedure, heard -at Fall Term, 1880, of Northampton Superior Court, before Graves, J.</p> <p>The following are the facts found by the court;</p> <p>1. T.hat a summons was issued and served on the defendant returnable to fall term, 1874.</p> <p>2. That as soon as the summons was served on defendant, he went to John W. Pugh, his grantor of the land sued for, and asked what he should do, and Pugh told him to make himself easy, that he had already employed James Vinson, an attorney at law, resident at the court-house of said county, to defend the action.</p> <p>3. That relying upon this assurance, the defendant took no further action in the matter then, and at spring term,, 1875, judgment by default was rendered against him.</p> <p>4. That he did not know of the judgment until May,. 1876, when Pugh informed him of it, and told him he had. better go at once and see Mr. Vinson ; that he went immediately to see Vinson, and was told by him that judgment had been taken at spring term, (May) 1875, and he further told affiant that Pugh had employed him to defend the action, but supposing the action had been brought against Pugh, he had missed the case, and had made no defence, and had. only discovered his mistake a few days before.</p> <p>5. That at spring term, 1876, on Wednesday of the second •week, in May, affiant made affidavit setting forth substantially the foregoing statement, and upon it moved to have-the said judgment set aside, and His Honor (Judge Henry) refused to set aside the judgment, on the ground that he did not have jurisdiction, and that it belonged to the jurisdiction of the judge of the 6th judicial district, (Judge Watts) of which the said county of Northampton formed a part.</p> <p>6. That no record was made of the action of the judge at spring term, 1876.</p> <p>7. That the judge then presiding (Henry) took the papers and forwarded them to Judge Watts.</p> <p>8. That Judge Watts took no action and the papers were neyer returned, and are lost.</p> <p>9. That a writ of possession on the judgment was issued and executed in August, 1876, and all the costs paid by the defendant in the latter part of the same year.</p> <p>10. That at the instance of the defendant, by the advice of counsel, a suit was instituted in the name of the said Pugh against the plaintiff, Norwood, which is still pending.</p> <p>11. That on the 8th of May, 1879, the defendant being so advised filed his affidavit setting out the grounds upon which he renewed his motion to set aside the said judgment under section 133 of the Code.</p> <p>12. That on the 18th day of March, 1879, T. W. Mason, counsel for the defendant, read to R. B. Peebles, who had appeared as counsel for the plaintiffs, a notice of the said motion of the 8th of April, and Mr. Peebles said he was not authorized to accept the service, but that he appeared as counsel for plaintiffs to resist this motion.</p> <p>13. That upon the hearing, the defendant offered a paper writing purporting to be a notice of the motion, and proposed to prove that it was duly served by proving an alleged indorsement of service, signed by one M. A. Moore, a constable now dead, to be in the handwriting of said Moore, which proof of service was adjudged insufficient.</p> <p>The motion to set aside the judgment was resisted by the plaintiffs upon the grounds: 1. Want of notice of the motion. 2. Motion not made within a year and a day. 3. A motion in cause was not the remedy. 4. No case of excusable neglect was made out.</p> <p>The motion was refused and the defendant appealed.</p>

Civil Action tried at January Term, 1882, of Wake Superior Court, before Gilmer, J. The plaintiff filed a verified complaint demanding payment for the sum of |514.'30, alleged to be due on account of money lent, board and lodging furnished, and goods sold and delivered, and at the trial judgment by default final for want of an answer was rendered, and the defendant appealed.

Civil ActioN, tried at Fall Term, 1881, of New Hanovek Superior Court, before Shipp, J. This action was brought before a justice of the peace to recover the sum of twenty-five dollars, laid as a tax upon the defendant, as a resident practicing attorney of the city of Wilmington. The case was brought by appeal to the superior court, where, upon a case agreed judgment was rendered against the defendant, from which he appealed to this court.

Civil Action tried at Pall Term, 1881, of Wayne Superior Court, before Shipp, J. This action in which the plaintiff complains that J. B. Baker, the defendant’s intestate, was guilty of a breach of a contract of marriage with herself, was begun in the lifetime of the intestate. He died after filing his answer, and the defendant as his administrator was made a party.

Civil Action tried at Fall Term, 1880, of Halifax Superior Court, before Graves, J. This action was brought under the statute (Bat.

<p>Contract of Master of Vessel — Agent and Principal — Presumptive Evidence.</p> <p>A contract made by the master of a vessel for fitting out, victualling and repairing, and which personally binds him, -binds the owner also, unless it is clearly shown that the credit is given to the one exclusive of the other. The very nature of the office of master furnishes presumptive evidence, that he is authorized by the owner of the vessel to act for him in such matters, subject to be rebutted by proof to the contrary. Evidence of the actual agency in this case, warranted the jury in finding for the plaintiff.</p>

<p>Motion for Injunction heard at Fall Term, 1881, of Beaufort Superior Court, before BenNETT, J.</p> <p>The motion was refused and the plaintiffs appealed.</p>

Rule on defendant to show cause why he should not be attached for contempt, heard at Spring Term, 1881, of Edgecombe Superior Court, before Shipp, J. The pleadings show that in May, 1880, Joseph E. Baker, father of the plaintiff, for the benefit of plaintiff and for the purpose of starting him in business on his own account, bought of defendant, who for a number of years had been engaged in the business of selling drugs and medicines and preparing prescriptions of physicians…

<p>Civil ActioN tried at January Special Term, 1882, of Northampton Superior Court, before Graves, J.</p> <p>The plaintiff appealed from the judgment below.</p>

<p>MotioN to vacate an order of arrest in an action pending in Gaston Superior Court, heard at Chambers on May 14, 1881, before Eure, J.</p> <p>The plaintiffs instituted their action on December 18th, 1880, to recover a debt alleged to be due for goods sold and delivered, and on the same day obtained an order of arrest and warrant of attachment upon the affidavit of Harris Hopkins, their agent and salesman, who states the amount of the claim, and further on information and belief;</p> <p>1. That the defendant is about to lea/ve the state and with intent to defraud his creditors ;</p> <p>2. That with like intent he is about to remove his property beyond the limits of the state;</p> <p>8. That he is, and for some time past has been concealing himself to elude the service of process and avoid the payment of his debts;</p> <p>4. That he has collected and has under his control about nine hundred dollars, paid upon an insurance on his stock of goods that were destroyed by fire, and there is still due on the policy near twelve hundred dollars, which if col-’ lected will be wholly lost to the creditors.</p> <p>The arrest of the person of the defendant was made on the next day, Sunday, and several writs of attachment against his estate issued to different counties without result, except as to those directed to the sheriffs of Edgecombe and Gaston, the former of whom levied the attachment upon the residue of the insurance money due from the Pamlico Ranking and Insurance Company of Tarboro, which is returned at the sum of $982.38; and the latter seized and took into possession a buggy belonging to the defendant.</p> <p>On February 12th, 1881, another action was commenced by the plaintiffs and other creditors, reciting and associating their several demands, when in both causes the following order was entered in reference to the insurance fund ;</p> <p>Whereas it appears that the Pamlico Banking and Insu-ranee Company of Tarboro, N. C., is indebted to the defendant in the above stated causes in the sum of $982.38, and that the same has been levied on by the plaintiffs in the first above named cause by virtue of an attachment issued therein ; therefore by consent of attorneys for both plaintiffs and defendant in both said causes, it is ordered, that the said Pamlico Banking and Insurance Company pay the full amount of said debt into the office of the superior court clerk of Gaston, and that the same when paid in be retained to await, and be subject to further orders in said cause; both parties plaintiffs and defendant reserving all rights and claims to said fund, and waiving no right, except that the money be paid into the office, and that when so paid in, the said company shall be discharged from all liability therefor, and the attachment against it be discharged so far as it effects said company.</p> <p>The order is subscribed officially by the clerk, and also bears the attesting signatures of the several attorneys (who represent the several creditors in the action) and the defendant, in approval.</p> <p>Upon the return of the summons, at spring term, the plaintiffs filed their complaint in the first suit, and charged that the defendant purchased and obtained possession of the goods at the price of $838.85 with the fraudulent purpose which he is still endeavoring to carry out, of avoiding the payment thereof. The defendant also filed an affidavit accompanied and sustained by the affidavits of several others, specifically denying the charges contained in the complaint, and those upon which the arrest was ordered, and stating further that he was under twenty-one years of age when the debt was contracted, as well as when the writ issued. The complaint verified and used as an affidavit is supported by that of one G. T. Coleman, the agent of another creditor firm interested in the second suit, in which he testifies to the defendant’s concealing himself and avoiding an interview with affiant on the 28th day of December, when affiant sought to collect the account due his firm, and reiterates upon information the allegation of the defendant’s possession of a large sum of money which he refuses to appropriate to his debts, but fraudulently withholds and conceals to avoid their payment. The evidence, which it is unnecessary to set out more in detail, was presented to, and heard by the presiding judge upon a motion to vacate the order of arrest and warrant of attachment, made before the clerk and by consent transferred to be decided by him. His Honor in passing upon the application of the defendant found as facts, that,</p> <p>1. The defendant was not about to depart the state to defraud his creditors;</p> <p>2. Nor to remove his property therefrom with such intent ;</p> <p>3. Nor did he conceal his person to elude the service of process or defeat the claims of creditors; and that '</p> <p>4. He was an infant when the goods were bought and received.</p> <p>Thereupon judgment was rendered vacating the order of arrest — discharging the bail bond, dissolving the attachment and directing the restoration of the property attached and the payment of the money deposited to the defendant, or to his agent; from which ruling the plaintiffs appealed.</p>

<p>Husband and Wife — Liability of Husband for torts of Wife— Abatement of Action.</p> <p>1. Where husband and wife are jointly sued for the wrong of the wife and the wife die, the action abates.</p> <p>2. Common law and statutory liability of the husband for the contracts and torts of the wife, discussed by Ashe, J.</p>

Civil ActioN tried at Fall Term, 1881, of Catawba Superior Court, before Seymour, J. Joseph Carpenter intermarried with the defendant, Naomi, and had by her an only son. He owned a tract of land which is the subject of controversy, two slaves, two mules, some cattle and hogs, and the ordinary farming implements and household and kitchen furniture.

<p>Civil Action tried at Spring Term, .1881, of Wilkes Superior Court, before Seymour, J.</p> <p>This action was brought by the plaintiffs against the defendants for the specific performance of a contract to convey a certain tract of land, which their ancestors had covenanted upon a valuable consideration to convey to them.</p> <p>The following are the facts proved by the plaintiffs which are uncontradicted;</p> <p>In April, 1858, Benjamin F. Petty contracted in writing to sell the locus in quo to R. F. Hackett and J. W. Hackett for $2,700. J. W. Hackett agreed by parol to assign his interest to R. F. Hackett, and R, F. Hackett assigned to J. F. Graves, as trustee for the wife of R. F. Hackett. The whole of the purchase money was paid to Benjamin F. Petty. The Hacketts entered into possession of the land at the time, bond for title was made to them, and have been in possession ever since, but no deed was ever made by Petty. The $2,700 was a full price for the land, and the plaintiffs had no notice at the time of the purchase of the defendants’ alleged equity. Petty died intestate in 1872, and the defendant, Rosseau, took out letters of administration on his estate. The said Petty was married three times. His first wife was Cynthia, the daughter of John Bryan, by whom he had issue, the defendants, Julia, intermarried with the defendant Quincey Shuford; Lucinda, intermarried with L. D. Parks ; Laura, intermarried with the defendant Henry Shuford ; Joanna, intermarried with defendant J. T. Porter; Adelia, intermarried with the defendant F. S. Doughton; and a son named William, now dead, who left surviving him three children of tender years, whose Christian names are not known. The other heirs of the said Petty are defendants and his children by his other wives.</p> <p>The defence set up by the defendants was that the land in controversy, known as the “ Gilreath land ” lying on the south side of Yadkin river in the county of Wilkes, was purchased by Benjamin F. Petty with money which was the separate property of his wife, Cynthia, and that under an agreement between Cynthia and himself that it should be invested in land, this land was purchased by him and. paid for with the money of Cynthia, but the title was taken» to himself.</p> <p>The defendants, with the view of sustaining the defence,, offered in evidence the last will and testament of John. Bryan, deceased, the father of Cynthia Petty, and grandfather of the defendant. The said Bryan in his will, among other things, devised and bequeathed as follows, to wit: “I give and bequeath to my beloved wife all my estate,, real and personal, that is to say, all my lands, negroes, money on hand, notes, bonds, deeds of trust, farming utensils, household and kitchen furniture, and stock of every kind during her natural life, and she may give any part of it to our children, as she pleases, so that they have equal shares. * * * My will is that my wife Nancj*- Bryan, whom I appoint to be sole executrix of this my last will and testar inent, shall have the sole disposal of my estate, both real and personal, so as to make as equal division, as possible, and do hereby authorize and empower her to dispose of and convey the same by deed or otherwise, in the manner heretofore directed, and according to what is hereafter stipulated. * * * My desire is that my land on the south side of the Yadkin river, should not be divided, but remain in one tract, as I think that dividing it would hurt its value, and that if any of my children should wish to purchase it to live upon, my other children should give them the preference.”</p> <p>Nancy Bryan, appointed executrix, renounced the right to execute the will, and John Rosseau was appointed administrator with the will annexed.</p> <p>On the 20th day of October, 1847, ail the lands belonging to the said John Bryan, lying on the south side of the Yadkin river, consisting of about twelve hundred and six acres, were sold to Wm. Parks for the sum of about six thousand dollars, and a deed of conveyance for the same was executed to him by Elisha Martin, James M. Parks, Mary Parks, B. F. Petty, Cynthia Petty and Nancy Bryan.</p> <p>The execution of the deed was proved by one of the subscribing witnesses, and the privy examination of Cynthia Petty was taken before two justices of the peace in the county of Wilkes, by virtue of a commission issued to them for that purpose from the county court of said county.</p> <p>It was in proof that the proceeds of the sale of this land belonged, under the will of John Bryan, to his four daughters, of whom Cynthia Petty was one. There was evidence going to show that her husband, B. F. Petty, received into his possession her share of the proceeds of this sale, amounting to some sixteen hundred dollars. One Leland Martin testified that John Bryan died in 1842. His land was sold in 1847 for $6,600. The money was considered the property of his four daughters, $1,650, the amount due to each. Mrs. Bryan died in 1847. B. F. Petty was living in 1847 on a tract of land worth $2,000 or $3,000; owned another tract, and also a good many negroes before the death of John Bryan, but had sold them.</p> <p>Julia Shuford, one of the defendants, and a witness in behalf of. the defendants, testified that she was the daughter of B. F. Petty and his wife Cynthia, and that her father received a large sum of money, the amount not remembered, from the estate of John Bryan. She said she knew that her father purchased the land in controversy with a portion of the same money; and her mother requested her father to invest the money in the land, remarking that it would be of some benefit to her children, and he did so at the request of her mother the said Cynthia. -Her father had no means' of his own, at the time of the purchase of the land, with which to buy the same. In a second deposition of this witness, she said, she often heard her father and mother talk about it. The talk was to the effect that the money derived from the Bryan estate ought to be invested in land by my father for the benefit of the children. She was somewhere between 15 and 18 years old at that time.</p> <p>John Rosseau was examined as a witness for the defendants, knew nothing about the money with which the land was purchased by Petty, but stated that Petty did not have the means of his own sufficient to enable him to pay for the land, for about that time he had loaned him money. He' had the character of being a close, saving, tight man.</p> <p>Jordan Petty testified that he had heard of the sale of the Bryan land in the fall, and Petty on one occasion said he had got the money for his part of the land. The May after, he heard a conversation between Petty, his wife and daughters. The old lady said, “You and the children want to run through all my money. I want you to take it and buy land to do me and the children some good.”</p> <p>Peggy Rosseau was also examined by the defendants, and stated that she heard a conversation between Petty, his wife and children a short time after the Bryan land was sold, about 30 odd years ago. Petty on one occasion came in and said he had the calico. The daughter wanted him to buy a centre table. The old lady said, “you shan’t have either, I want my money put in land.” Pie asked her, “what kind ? do you want my children to settle in this poor country ?” “I want you to go and buy land with it.” Nota year after I heard him talking with his wife about buying the Lenoir place — the name of the locus in quo. The conversation first mentioned might have been five months after the sale of the Bryan land.</p> <p>In the statement of the case on appeal His Honor says that the defence made upon the trial was that the locus in quo was purchased by B. F. Petty with money which was the separate property of his wife, Cynthia, and that, under an agreement between Cynthia and himself that it should be invested in land, this land was purchased by said Petty and paid for with the money of said Cynthia, but the title was taken to himself.</p> <p>After the evidence was all introduced, the court intimated that in its opinion this defence was not made out by the evidence; and further, that if the facts alleged were proved, they would not avail against the plaintiffs’ equity. Thereupon the defendant’s counsel stated that they had nothing .to say in opposition to a verdict, excepting upon this defence. The jury thereupon rendered a verdict for the plaintiffs, and the defendants appealed.</p>

Civil Action tried- at Spring Term, 1881, of Wake Superior Court, before Schench, J. The action was brought by plaintiff as administrator of W. R. Pepper against the defendant as administrator with the will annexed of W. G. Lougee, to recover the amount due on an inland bill of exchange drawn by the defendant’s testator on one T. L. Love in favor of the plaintiff’s intestate.

<p>Civil Action tried at Fall Term, 1881, of Wake Superior Court, before Gilmer, J.</p> <p>The action was -brought in a justice’s court by the plaintiff, as administratrix of Mary Herndon, deceased, upon two notes due by the defendant to her intestate. The defendant set up a counter-claim for goods sold and delivered to the intestate, and also the price of a metallic coffin furnished by him for the burial of the intestate and in which he was buried.</p> <p>To which the plaintiff replied, payment and the statute of limitations. Judgment was rendered for the plaintiff' and the defendant appealed to the superior court, where at June term, 1880, the case was referred under the Code of Civil Procedure, and a report made by the referee to January term, 1881, of the superior court, in which it was found by the referee that a part of the counter-claim set up by the defendant was barred by the statute of limitations, and without assigning any reason he found that the defendant was not entitled to the counter-claim of the metallic coffin furnished, although it was in evidence that the defendant had given one hundred dollars for the same, and that the plaintiff’s intestate was buried in it, with the consent of the heirs and the mother who afterwards administered. By consent however of the plaintiff, the defendant was allowed a credit on the notes, on account of coffin, to the amount of eighteen dollars, but that was allowed only ex gratia.</p> <p>There were .several exceptions taken to the report, but the only one pressed in the argument before this court, was that to the ruling of the judge in overruling the exception taken by the defendant to the finding and conclusion of the referee in regard to the metallic coffin. In overruling this exception and confirming the report and giving judgment for the plaintiff, the judge supplemented his judgment with the qualification that “ this judgment is without any prejudice to defendant’s right to assert his claim, for the metallic case furnished, in any settlement of the estate hereafter had before the probate judge.” Judgment for plaintiff, appeal by defendant.</p>

Civil Actior tried at Fall Term, 1881, of Rockingham Superior Court, before Gudger, J. This is an action in nature of creditor’s bill brought by the plantiffs as executors and executrix of Thomas S. Galloway, deceased, in behalf of themselves and the other creditors of the testator, against William Bradfield as administrator of Isaac N. Hand, deceased, and the several sureties on two administration bonds given by the said Bradfield alleging breaches of the bonds, and the…

Civil ActioN heard upon exception to the report of a referee at Fall Term, 1880, of Watauga Superior Court, before Bennett, J. The report was confirmed and the defendants appealed.

Civil ActioN tried at Fall Term, 1881, of Iredell Superior Court, before Seymour, J. The plaintiff sues upon an award, made in pursuance of a written agreement of reference, the condition of which is as follows: The condition of the above obligation is such, that whereas a certain matter of controversy has arisen between the above bou n den, about and concerning the dealings and mutual accounts kept by and between themselves for the last several years; and-whereas they have…

<p>Civil. Action tried at Spring Term, 1882, of Wake Superior Court, before Bennett, J.</p> <p>Defendants appealed from the ruling below.</p>

The only question in this case arises out of the ruling of of the court upon the sufficiency of the defence to the action the material facts of which as found by the judge, a trial by jury being waived, are these : The summons in the present action was issued by a justice of the peace on August 9th, 1879, and the cause tried on the 20th day of the month.

<p>Guardian and Ward — Sureties—Limitations and Presumptions.</p> <p>1. A guardian, appointed in 1841, is not himself protected by lapse of time against an action on his bond and for an account of the trust fund; but his sureties are discharged if the ward does not within three years after attaining majority call upon the guardian for a full settlement. Rev. Stat., ch. 65, § 7.</p> <p>2. In such case, only a presumption of payment arises within ten years after the right of aetion accrues (Rev. Stat., ch. 65, § 13); and it seems that the period of time for the presumption is .to he counted from the arrival of the several wards at full age — excluding the interval during which the statute was suspended.</p>

<p>Trusts and Tmstees — Land charged with payment of fund.</p> <p>The managing officer of the Bank of Statesville beeame indebted to the bank in a large sum of money which he used in the purchase Sf land, and died leaving a will devising it to his wife ; Held, that the fund used in the purchase is the property of the bank and the land charged with its payment. The case of Attorney General v. Simonton, 78 N. C., 57, approved, as to the existence of the bank as a corporation.</p>

<p>Trusts and Trustees — Administrators—Guardian.</p> <p>1. The decision in this case, reported in 81 N. C., 208, affirmed.</p> <p>2. Where the same person is administrator and guardian, the balance in his hands as administrator, ascertained by judgment and directed to be applied to the ward’s debt, is presumed to be held by him as guardian. The transfer of the fund is the work of the law, and it occurs and extinguishes the debt due from the administrator instanter.</p> <p>3. The exception that the administrator did not at any one time have enough money raised by sale of realty to pay the ward’s debt, is untenable, because by the terms of the decree, the payment of the debt is directed to be made out of assets then on hand and such as should come to hand — the sale of land being partly for cash and partly on time.</p>

Civil Action tried at Pall Term, 1881, of New Hanover Superior Court, before Shipp, J. The plaintiffs in this action seek to have set aside a decree of the late court of equity. As made by the pleadings and exhibits the case is as follows: David Smith died in the year 1862, seized of a parcel of land situate in the city of Wilmington, and leaving as his only heirs at law, the feme plaintiff and a son named David, both being infants of tender years.

<p>Deed — Equitable Estate — Contract of Salp of Land — Married Woman — Purchaser affected with notice of trust.</p> <p>1. An equitable estate in fee may be declared without the use of the word "heirs,” if an intention to pass'such estate can be gathered from the instrument.</p> <p>2. A parol contract of sale of an equitable (as well as a legal) estate in land is void under the statute.</p> <p>3. The decision in Scott v. Battle, 85 N. C., 184, that a married woman’s contract affecting her estate in land is void unless made in strict compliance with the statute in reference to taking her privy examination, is approved.</p> <p>4. One who uses a deed in the necessary deduction of his title, which discloses an equitable title in another, is affected with notice of the trust.</p>

<p>Mortgage — Sale of Equity of Redemption to Mortgagee — Burden of Proof — Judge’s Charge.</p> <p>1. Where a mortgagor conveys his equity of redemption to the mortgagee (the deed for the land .containing a power to foreclose by sale) and the former brings an action for possession, and an account of the rents, and cancellation of the deed, the burden of proof is upon the mortgagee to show by evidence other than the deed itself, that the transaction was fair and that he paid for the property what it was worth, in order to rebut the presumption of law that the conveyance is fraudulent — a mortgagee being included in the class of trustees to whose dealings with their cestuis que trust the presumption is applied.</p> <p>2, A proposition of law, given in a charge to the jury, which is in terms too comprehensive or without its necessary limitations, cannot for that reason be assigned for error, if it be appropriate to the ease and not calculated to mislead.</p>

The material facts set -out in the complaint as the grounds of the relief demanded, are these: The plaintiffs, on March 15th, 1875, entered into a contract with the defendant, Wrenn, for the purchase of the tracts of land described in the complaint, for the sum of $2,266.64 whereof one-fourth was to be paid in cash, and the residue secured in three several bonds, each for an equal part thereof, bearing interest from that date, and maturing successively on the first day of…

Civil Action for damages tried at Pall Term, 1879, of Halifax Superior Court, before Avery, J. Verdict for the defendant. Motion to set aside verdict refused. Judgment for defendant, appeal by plain tiff.

order made at Fall Term, 1881, of Catawba Superior Court, by Seymour, J. This was a special proceeding commenced in the probate court for a settlement of the estate and construction of the will of Mahala Sherrill, in which, on a former appeal, the question involving the amount of assets in the hands of the executor was passed upon. 75 N. C., 468.

<p>Civil Action tried at Fall Term, 1881, of Iredell Superior Court, before Seymour, J.</p> <p>This action is brought to recover so much of the salary of the chief engineer of the Western North Carolina railroad company as was received by the defendant for services while in possession of the office and in discharge of its duties, for the period immediately preceding his retirement therefrom in June, 1872. The company was organized under an act of the general assembly passed in 1855, the substance of which, so far as it affects the present controversy, may be thus summarily stated: The management of the affairs of the company is committed to a general board consisting of twelve directors, of whom eight were to be appointed by the Governor with the ad.vice and consent of the senate, and the others elected by the individual stockholders. The directors who must be citizens of the state and resident therein, and also hold each at least five shares of the capital stock, are required to elect one of their number president of the company. Contracts authenticated by the president and secretary of the board of directors are made binding upon it-With the exception of the commissioners designated by name to open books of subscription to the capital stock, no other officers of the corporation are created or expressly recognized in the act. Acts 1854-’55, ch. 228.</p> <p>The concluding paragraph of section 6 confers among other rights and immunities the authority to “make all such by-laws, rules and regulations, as are necessary for the government of the corporation, or for effecting the object for which it (the company) is created, not inconsistent with the constitution and laws of the state.”</p> <p>At a meeting of stockholders held in August, 1869, an ordinance or bydaw was adopted in these words ; “ The following are declared officers of the company, to wit — the president, directors, secretary, treasurer, superintendent and chief engineer. All other persons "whose services shall be necessary shall be considered as employees.” Another ordinance or by-law declared that the chief engineer should hold his office for one year and until his successor is duly elected and qualified, and fixed his salary at $2,000 per annum. The plaintiff was appointed to this place in November, 1869, and again on the 18th day of that month, in the year following.</p> <p>In February, 1871, was passed an act, as its title declares, “for the benefit of the Western North Carolina railroad company,” conferring upon the stockholders the right to remove the then acting directors, and any of theagentsor officers of the company, and to appoint others in their place, and in the event of such removal, designating the state“directors by name. Under this act the stockholders met on April 4th, 1871, and after organization against the written protest of the plaintiff proceeded to remove him and elected the defendant to the vacated place of chief engineer, to serve until their next annual meeting. The defendant entered upon the discharge of his official duties and continued to discharge them up to the time of his resignation. For his services during this period he received the stipulated compensation, amounting to $2,338.74, the last portion of which was paid in February, 1873.</p> <p>Upon this showing His Honor intimated an opinion that the position of chief engineer was not such an office as to give the plaintiff a tenure and vested right thereto, and he could not maintain the action. The plaintiff in submission thereto, suffered a non-suit and appealed.</p>

PROCEEDING to enforce an agricultural lien, commenced before the clerk and heard on appeal at December Special Term, 1880, of Robeson Superior Court, before Avery J. The plaintiffs on affidavit sued out of the clerk’s office a warrant directed to the sheriff and commanding him to seize and after due notice sell certain crpps raised by the defendants, subject to a lien for money and supplies alleged to have been advanced to the defendants, in the cultivation of the land upon…

<p>Civil Action tried at Fall Term, 1881, of Alexander Superior Court, before Seymour, J.</p> <p>Solomon Martin died intestate in 1862, owning the tract of land described in the complaint, leaving a widow, Rebecca, and four children, Nancy, wife of G. C. Meadows, of full age, and Abraham, Franklin and Mary, infants, to whom, as heirs at law and subject to dower, the said land descended. Franklin left the state in 1872, and never since being heard from is supposed to be dead.</p> <p>On March 23d, 1871, Meadows and wife and. Abraham Martin conveyed their respective shares, constituting an undivided moiety to the defendant William G. James, and he caused a petition to be filed in the probate court, employing John A. Stephenson, a practicing attorney, for that purpose, in the names of himself and the tenants, Franklin and Mary, represented by their mother, appointed guardian ad litem, for partition and sale.</p> <p>The petition itself (verified by one James F. Stephenson, whose relations to the cause do not appear, and sustained by his affidavit and that of one Abraham Mayberry, the latter having been taken sometime afterwards) was granted by the probate judge, and a decree entered directing a sale of the premises and appointing the said attorney commissioner to conduct it. These proceedings all transpired on the same day, to-wit, on March 23d, when the defendant acquired his title. The land was sold to the defendant, on a credit of six months at the price of $725 and he executed his note with surety for that sum. The commissioner’s report was confirmed on August 23d, and he was ordered to proceed to collect the purchase money when due, and when paid, to make title to the defendant.</p> <p>The order of sale, the report of the commissioner, and the final decree of confirmation and for title were severally presented to the judge of the district and approved by him'. The commissioner collected the moiety of the purchase money due the infant petitioners, and leaving the residue in the hands of the defendant, on November 10th conveyed the land to him. The fund collected by the commissioner was deposited in the Bank of Statesville and has been lost.</p> <p>The present action, instituted by the plaintiffs, (children and grand children of the intestate, Solomon) seeks to impeach the decrees and the proceedings connected therewith, for fraud practiced by the defendant, in order to secure title to himself; and they allege that the names of the two infant tenants, as also that of their mother, as guardian ad litem> were used without the knowledge or consent of either, and with no lawful authority from any source, as were all the proceedings in the cause — hurried to a conclusion through the agency of the attorney acting in behalf of the defendant, and by a sale at a price below the value of the land ; and they ask that the recited decrees, thus obtained through the falsehood and fraud of the defendant, may be set aside and annulled and his pretended conveyance of title be declared void, and for general relief.</p> <p>The defendant does not controvert the plaintiffs’ allegations of matter appearing of record in the suit for partition and sale, but he avers that the mother had full knowledge of what was done and made no objection thereto, nor to the sale at which she was present, and denies the imputed fraud, and any wrong intended or done to his associate petitioners in any respect. In an ámendment to his answer the defendant insists that the deed from Nancy Meadows to him, executed in June, 1868, estops the. plaintiffs, who claim as heirs under her from setting up title to the share descended from their uncle Franklin, and that the same if any vests sn him under that conveyance.</p> <p>The matters in controversy were submitted to the jury and their findings are for the plaintiffs. From the judgment thereon the defendant appeals.</p>

Civil Action to recover land tried at Spring Term, 1881, of Richmond Superior Court, before Gudger, J. Archibald Fairley died in 1831, seized of the lands in controversy, and leaving a widow and an infant child Mary Ann-The lands consisted of several distinct, but contiguous tracts, two of which were allotted as dower to his widow, who took possession thereof, and continued it until her death in 1857, she having in the meantime intermarried with one Stewart.

Civil Action tried at Fall Term, 1881, of Halifax Superior Court, before Gilmer, J. On the 13th of June, 1866, the late Edward Conigland effected au insurance of five thousand dollars on his life with the iEtna Insurance Company, of Hartford, for the benefit of himself, his executors, administrators and assigns, and procured a policy for the same payable ninety days after notice and proof of death.

Civil Action removed- from Franklin County and tried at Spring Term, 1880-, of Warren Superior Court, before Gudger, J, The plaintiff is the wife of D. W. Rencher to who-m she was married in 1866, and brings this action to recover in damages the value of the property described in the complaint, (carriage, horses, mules and other stock, farming implements, &c.,) and sold by the defendant sheriff of Frank--lin county, under execution against her husband.

Civil Action tried at January Special Term, 1882, of Northampton Superior Court, before Graves, J. On the 12th day of October, 1860, the defendant’s testatrix, Virginia A. Johnson, who at the time was a feme covert, being the wife of James A. Johnson, purchased a female servant from one Samuel Douglas for the sum of seventeen hundred dollars and gave her note under seal for the same with the plaintiff John A. Smith and 0. A. Smith as her sureties.

<p>Injunction— Water Bights.</p> <p>1. An injunction will not be granted to restrain defendant from a contemplated diversion of water, (by means of canals in process of construction) intended to be used in gold-washing operations, upon an allegation that the same will cause injury to similar operations of plaintiflb, the lower proprietors on same stream.</p> <p>2. Tiie relative rights of upper and lower proprietors of land over which a natural water-course flows, to the running water, discussed by SMITH, O. J. Sueh right should- be established by finding of a Jury. Injuries — when compensated in damages at law, and when irreparable and calling for injunctive relief.</p>

<p>Civil Action tried at Fall term, 1881, of Wake Superior Court, before Gilmer, J.</p> <p>The action was brought in the name of the state on the relation of the board of commissioners of Wake county, upon the official bond of the defendant as county treasurer. The defendant, Bunting, demurred to the complaint, and from the judgment of the court sustaining it, the plaintiffs appealed.</p>

Civil ActioN for construction of a will tried at Fall’ Term, 1881, of McDowell Superior Court, before Seymour, J. The defendant appealed from the ruling of the court below.

Civil Action for construction of will tried at Spring Term, 1881, of Richmond Superior Court, before Gudger, J. Stephen W. Covington died in the county of Richmond, leaving a last will, in which he disposed of his estate as follows : Item Í. I give to my nephew Harrison W. Covington what he owes me and two hundred dollars in addition. Item 2. I give and bequeath to each of the children of my deceased brother, Benjamin H., one hundred dollars.

<p>Issue of devisavit vel non tried at Fall Term, 1881, of Moore Superior Court, before Qráves, J.</p> <p>Verdict for defendants, judgment, appeal by plaintiff.</p>

Civil Action for construction of a will, heard at Fall: Term, 1881, of Greene Superior Court, before Shipp, J. This action is brought by the personal representative of B. H. Smith, deceased, for the purpose of having ascertained' the respective rights of the defendants, Tabitha E. Smith and Zilpha M. Edwards, under the will of the said Smith, the said Tabitha E. being his widow, to whom was given, his estate real and personal for life, and the said Z. M. Edwards being his…

Civil ActioN to recover land tried at Fall Term, 1881, of Burke Superior Court, before Seymour, J. The plaintiff, Barbara Sigmon, claiming to be the owner of the land in controversy, brings this action for the recovery of the possession thereof.

Civil Action to recover land, tried at Spring Term, 1881, of RocicinghaM Superior Court, before Avery, J. The plaintiffs claim, the land as heirs at law of I. G. Lash deceased, who in his life time purchased at sheriff’s sale, by virtue of an execution against the defendant John Thomas, under whom the other defendants are in possession.

Civil Action commenced before a justice of the peace and tried at Fall Term, 1880, of Northampton Superior Court, before Graves, J. No pleadings having been sent up by the justice before whom the action was tried, it was agreed by consent of counsel that all irregularities in the justice’s return should be waived, and that the pleadings might be filed in the superior court.

Civil Action heard on appeal from a justice’s judgment, at Fall Term, 1880, of Anson Superior Court, before Avery^ J. The defendant moved to dismiss the action on the ground that it was brought, as appears from the summons,, before a justice of the peace “for the recovery of a bale of cotton weighing 500 pounds as rent for a farm,” and that the justice had no jurisdiction.

<p>MotioN in the cause heard at Pall Term, 1881, of Beau-RORT Superior Court, before Bennett, J.</p> <p>The motion was made by Calvin J. Cowles, a creditor of the plaintiff bank, to make R. W. Wharton, administrator of D. M. Carter, deceased, a party defendant, and denied by the court.</p>

Civil ActioN tried at Spring Term, 1882, of BüNcombe Superior court, before Gilliam, J. This action was commenced before a justice of the peace and founded upon an account for goods sold.

<p>Civil ActioN tried on appeal at November Special Term, 1881, of Halifax Superior Court, before Qilmer, J.</p> <p>The plaintiff appealed.</p>

Civil Action, tried at January Special Term, 1882, of Northampton Superior Court, before Graves, J. The plaintiff sues to recover the possession of a bay mare, and the sole controversy was as to his title. On the trial the evidence was as follows : The plaintiff, examined on his own behalf, testified that one Samuel Story, residing on a farm of his in Virginia, applied to the plaintiff to buy him a horse.

<p> Partnership^-Liability of Individual Members. </p> <p>Where the managing partner of a firm buys goods on time when he ought to have bought for cash according to the terms of their agreement, the firm and each member thereof, (out of his individual estate) is liable for the debt, even though the seller had knowledge of the stipulation against credit; and this, whether the partner sought to be charged derived any individual advantage from the enterprise, or not.</p>

Proceeding- in nature of a rule on a sheriff for the application of money raised under execution, heard at Spring Term, 1881, of Edgecombe Superior Court, before Shipp, J. The question presented for determination by the record in this case is, as to the proper application of a sum of money, raised by the defendant Bryan, as sheriff of Edge-combe, by virtue of a sale of the land of one Jesse Stanoil, under executions in his hands, issued upon judgments duly •docketed in the…

Civil ActioN tried at Fall Term, 1881, of Halifax Superior Court, upon the following case agreed, before Gilmer, J. On Friday, the sixth day of the week, being the 24th day of December, 1880, the plaintiff delivered at the depot of the defendant in the town of Halifax, one bale of cotton for shipment to W. W. Gwathmey &Oo., merchants in Norfolk, Virginia, which bale of cotton was so received by the defendant for shipment as aforesaid.

Claim and Delivery, tried at Fall Term, 1881, of Northampton Superior Court, before Gilmer, J. In September, 1878, the defendant, Magee, as constable, levied upon the entire cotton crop of one Jordan, then matured and standing in the field, and estimated to be about twenty thousand pounds, by virtue of certain justice’s executions, amounting in the aggregate to $583.08, in favor of the other defendants.

<p> Election, Law of construed. </p> <p>1. The result of an election will not be disturbed because of- illegal votes received or legal votes refused, unless the number be such that the correction would show a majority for the contesting party.</p> <p>2. And the burden of proof is upon the contestant to show the rejection of a sufficient number of votes, even if they ought to have been counted, to reverse the declared result.</p> <p>3. The election law of 1877, eb. 275, § 20, enumerates three kinds of tickets which are declared void, and must be rejected from the count as to all persons voted for thereon :</p> <p>(1) Tickets rolled up together.</p> <p>(2) Those containing the names of more persons than the elector is entitled to vote for — whether for a single office, or for one not to be filled, as in this case.</p> <p>(3) And those having some device upon them.</p>

Civil Action tried at Pall Term, 1881, of Randolph Superior Court, before Gudger, J. This action, wherein the plaintiffs seek to recover of the defendant the sum of $150.62 as a balance due from him on the purchase of a bell, was begun in a justice’s court, and brought by a succession of appeals to this court.

<p>Civil Action tried at Spring Term, 1882, of Moore Superior Court, before Shipp, /,</p> <p>The defendants appealed,</p>

<p>Civil Action tried at Fall Term, 188l, of Guilford Superior Court, before Gudger, J.</p> <p>The defendant appealed,</p>

Civil ActioN tried at Spring Term, 1882, of Buncombe Superior Court, before Gilliam, J. On the 7th day of April, 1852, the defendants gave their bond to the plaintiff, whereby they covenanted to pay him, nine months after that day, at Pittsburg, in Pennsylvania, the sum of $1,670.50, and upon which they made two payments, as endorsed thereon^one of $334.00 on the 23rd of April, 1855, and the other of $99.75, on the 23rd of January, 1857.

Civil Action to recover land tried at January Special Term, 1882, of Northampton Superior Court; before Graves, J. On the trial the plaintiff tendered the following issues; 1. Is the plaintiff entitled to the possession of the land described in the complaint? 2. What damage has the plaintiff sustained by the wrongful withholding of the possession of the land?

Civil ActioN, tried at Spring Term, 1882, of Buncombe Superior Court, before Gilliam, J. James W. Patton died in December, 1861, leaving a will in which William A., James A., and Thomas W. Patton, his sons, and N. W. Woodfin are appointed executors. The two first named qualified and proceeded with the administration jjntil their deaths. William died in April, 1863, and James in March of the following year.

<p>Boundary — Elections—Registration.</p> <p>1. The boundaries of a district, in which an election was held upon the question of the “ stock law” under the act of 1881, oh. 94, were described in the application to hold said election, as “ well defined; Held that the words are not too indefinite to admit of proof to locate the boundaries. And where the beginning is “ at a certain tract of land,” the difficulty as to the uncertainty of the point of beginning is removed where there is a call for the outer boundaries of lands of successive proprietors, thence to a certain point.</p> <p>2. Review of acts of assembly relating to the “ Stock Law” for Rowan county by Smith, C. J., and the act permitting detached parts of several townships to be formed into a single district, sustained.</p> <p>3. Where a registrar gave notice that the registration of voters would take place at his residence, but kept the books and actually registered the names at his store some 300 yards distant, he having left word at the house for persons applying there to come to the store, it was held that the irregularity did not vitiate the registration and the election held under it.</p>

<p>User of Way — Presumption of Grant.</p> <p>1. In an action for damages in closing up a way, to which the plaintiff claims a prescriptive right, it is necessary to show, not only that he used the same continuously for more than twenty years, but that the user was adverse and as of right.</p> <p>2. In such case, where the plaintiff owner put up a fence on either side of the way to protect his land, and the defendant applied for and obtained the consent of said owner to put up an obstructing fence with gates for persons to pass through, but afterwards entirely closed up the way, it was held, that there was evidence of an adverse posses- ' sory use of the way in the plaintiff, and the same should have been submitted to the jury.</p>

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

Civil Action to recover land, tried at Spring Term, 1882, of Wake Superior Court, before Bennett, J. The plaintiff claimed title to the land described in the complaint by virtue of a judgment of the superior court of Wake, rendered at June term, 1878, in favor of J. P. H. Russ and Jesse Perry against the defendant as executrix, in which it was adjudged, upon the report of the referee to whom it had been referred to take an account of her administration,' that she was guilty…

<p>Judicial Bale — Reopening Biddings upon an Advance Price.</p> <p>1. Before the report of a judicial sale is confirmed, the biddings may be reopened and the property resold upon an advance offer of ten per cent, made at the term ensuing the sale ; and this may be done more than once. The purchaser has no independent right before the sale is confirmed, but is regarded as a mere preferred proposer.</p> <p>2. Although in such ease the court loolcs with jealousy upon the application of one, who was a bidder at the sale, to reopen the biddings, yet the advance price offered by him will be talren as a compensation for any loss that may have arisen from a want of competition at the sale.</p>

Civil Action tried at Spring Term, 1881, of Wake Superior Court, before Schenek, J. This action is instituted to recover judgment and enforce payment of two promissory notes, each in the sum of $300, which, with another in the sum of $400, bearing the same date and since taken up by the defendant, Norris, constitute the consideration of $1000, agreed to be paid for two separate tracts of land, were executed on May 20th, 1873, by the feme defendant Mary E. and her husband,…

PROCEEDING under the landlord and tenant act heard on appeal at January Special Term, 1882, of Guilford Superior Court, before Oudger, J. The plaintiff on June 1st, 1879, leased to the defendants a store-room in one corner of his hotel with the cellar under it, for the term of one year thence next ensuing, for the sum of $200,.due in monthly parts, with condition for the surrender thereof on default of making any payment, and after five days’ notice, by a covenant concluding…

Civil ActioN tried at January Special Term, 1882, of Nohthampton Superior Court, before Graves, J. This action is brought on the official bond of the defendant, Newsom, as sheriff of Northampton county, given in 1878, and on which the other defendants were his sureties.

Motion of defendants to dismiss for want of jurisdiction, heard at January Special Term, 1882, of Guilford Superior Court, before Gudger, J. The plaintiff is the administrator of G. W. Phipps, deceased, and the defendants are the judgment and mortgagee creditors of the deceased, and his widows and heirs at law.

Civil ActioN, tried at Fall Terra, 1881, of NorthamptoN Superior Court, before Gilmer, J. This case was tried upon complaint and demurrer. The allegations of the complaint are as follows: The defendant Odora was clerk of the superior court of Northampton county in 1879, and the other defendants were the sureties on his bond as such.

Civil ActioN to recover land, tried at Pall Term, 1880, of Nobthampton Superior Court, before Graves, J. The plaintiff claimed title to the land in dispute under an execution sale, and produced in evidence the record of a judgment recovered in the superior court of Northampton by Mary E. Phillips against the defendant for a debt contracted prior to January, 1865, and execution thereon issued on June 8th, 1874, to the sheriff, his deed conveying the land, and proved the sale…

<p>Civil Action tried upon exceptions to referee’s report at Fall Term, 1880, of Northampton Superior Court, before Graves, J.</p> <p>The plaintiff appealed.</p>

Civil Action tried at January Special Term, 1882, of Northampton Superior Court, before Graves, J. This was an action of claim and delivery for the possession of 307 railroad ties. At the trial the plaintiff offered in evidence a mortgage given to him by J. T. Buffaloe on the 20th May, 1880, and registered on 22nd June, 1880, claiming that it conveyed to him the property sued for.

Civil ActioN tried at Spring Term, 1882, of Mooke Superior Court, before Shipp, J. In 1873 some of the parties, who constitute the plaintiffs in the present action, instituted proceedings against the present defendant, alleging that they were tenants in common with him in certain lands, and asking for a sale thereof, for the purposes of partition.

Civil Action, tried at January Special Terra, 1832, of Davidson Superior Court, before Seymour, J. This action has for its object the recovery of a balance due the plaintiffs for goods sold and delivered and moneys advanced during the years 187.1, 1872, 1878 and part of 1874, to one Amos Howes, trading and mining, at a place known as Gold Hill, in Rowan county, in his own name, and to charge the defendant as a dormant, and until a later date, undiscovered partner associated…

<p>Civil Action tried at Spring Term, 1881, of Cabarrus Superior Court, before Eure, J.</p> <p>The defendants appealed from the judgment of the court below.</p>

Special Proceeding to sell' land for assets transferred, on issues raised, and heard at Fall Term, 1881, of Cleaveland Superior Court, before Avery, J. J. L. Moore in his life-time -entered iuto a contract with one Wilson for the purchase from him of a tract of land and gave his note therefor in the sum of $1,410.36, bearing date on January 1st, 1867, and of which he paid the larger portion previous to his death in 1874.

<p> Corporations, judgments against, and assets of, how administered. </p> <p>1. Judgments against a corporation rendered upon process issued after it ceased to exist, are of no validity; and the same may be impeached by a party interested in the administration of its assets, which must be had under the provisions of chapter 26 of Battle’s Revisal.</p> <p>2. A defacto corporation is estopped to deny its existence as to those who deal with it, but this does not preclude proof of the subsequent cessation of its corporate functions.</p>

Civil Action heard upon a demurrer to the complaint at Fall Term, 1881, of Mecklenburg Superior Court, before Eure, J. The plaintiff complained— 1. That on the Bd day of March, 1879, the defendant made and delivered his promissory note, whereby he promised to pay to the plaintiff or order, four months after date thereof, the sum of twelve hundred and fifty dollars, payable at the Commercial National Bank of Charlotte, N. C., with interest at 8 per cent* per annum. 2.

Civil Action to recover land tried at Pall Term, 1881, of Cleaveland Superior Court, before Avery, J. The following issues were submitted to the jury: 1. Was the purchase money paid as the consideration for the'deed executed by sheriff Logan to the feme defendant Ma-hala J. Justice, the money of the defendant Benjamin Justice ? 2. Did Benjamin Justice cause said deed to be executed to the defendant M. J. Justice with intent to defraud his creditors ? 3.

Civil Action to recover land, tried at Fail Term, 1881, of Northampton Superior Court, before Gilmer, J. The case was submitted to a jury who found a special verdict as follows : That in an action begun before a justice of the peace against the defendant, Ed wards, and in favor of one Spivey, to the use of the plaintiff, upon the defendant Edwards’bond, dated Nov. 1st,'1858, judgment was rendered in favor of the plaintiff on the 27th December, 1869, for $182.03 and costs;…

Civil Action tried at Fall Term, 1881, of Burke Superior Court, before Seymour, J. This action is brought to enforce a mechanic’s lien upon the property of the “ Glen Alpine Springs Company,” composed of the defendants Walton and Pearson, for lumber furnished and used in repairing and erecting buildings on its premises.

<p> Surety and Principal. </p> <p>Defendant merchant became indebted to plaintiff for goods sold and delivered in the sum of $650, and afterwards ordered more goods, but plaintiff declined to send them unless acceptances were given, which was done in drafts covering the entire indebtedness. Plaintiff filled the order for additional goods, only in part, owing to defendant’s failure in business ; Held in an action against the surety acceptors, that the violated promise to the principal debtor to fill the order, does not discharge the sureties and annul their contract, but that any claim for damages thereby incurred may be set up as a counter-claim.</p>

Civil Action tried at Fall Term, 1881, of Cleaveland Superior Court, before Avery, J. The facts are as follows ¡ The plaintiff is a judgment creditor of Benjamin Justice.

<p>Motion by defendants to be allowed to file exceptions to the report of a referee, heard at Fall Term, 1881, of Ruth-ekfobx) Superior Court, before Avery, J.</p> <p>The motion was based upon the affidavit of the defendant, which is as follows: That at the-term of the superior court of Rutherford county an adverse report was rendered against affiant; that said report and said cause was continued without further.action on account of the sickness of affiant’s counsel, John F. Hoke, of Lincolnton, N. C.; that Mr. Hoke is a regular attendant in full practice in said court, and is affiant’s general counsel, and was, and is, his special counsel, particularly and especially familiar with the nature and condition of this cause; and affiant believed that he would be able to attend the present term of the court, and file exceptions to said report in apt time; that affiant is now informed and believes that Mr. Hoke has not been physically able to attend to this cause since the last term of this court, and is unable now to attend; that affiant was not advised of such being his condition in time to have employed other counsel, and that the local bar are so connected with the cause as counsel and witnesses, that they could not assume the position of attorney for affiant; that affiant’s own health has been very feeble since the last term of this court — a large portion of the time he was unable to attend to business, and has been unable to prepare any proper exceptions to said report; that he is advised and believes that said report is erroneous in law and contrary to the facts, and that he has a good and meritorious cause of defence.</p> <p>The facts found by His Honor were, that the report of the referee, which was adverse to the defendant, was filed at the spring term, 1881, and at said term a motion was made to confirm said report, which motion was refused on account of the sickness of John F. Hoke, senior counsel for defendant. The firm of Hoke & Son represented the defendant.</p> <p>On the first call of the docket W. A. Hoke, the junior counsel, who alone was present, gave notice of a motion to be allowed to file exceptions, not then prepared, to the report of the referee, and when the cause was peremptorily called for trial, on the last day of the term, counsel offered the exceptions and moved the court to be allowed to file them. His .Honor announced that while it was discretion-aiy with the court to allow or disallow the motion, the counsel for defendant would be permitted to read the exceptions offered in connection with the report in order to enlighten the court in the exercise of its discretion, but if after hearing a full discussion, it appeared to the court, considering all the circumstances that the exceptions were offered for delay (as insisted by plaintiff’s counsel) the motion would be disallowed, even though some of the exceptions might have been sustained on technical grounds, if filed in apt time.</p> <p>After argument the court declined to allow the motion to file exceptions, and on motion ordered that the report be confirmed, and gave judgment accordingly for plaintiff. From which judgment the defendant appealed.</p>

Motion made by the defendant to be allowed to file exceptions to the report of a referee, and heard at Pall Term, 1881, of Rutherford Superior Court, before Avery, J. At spring term, 1881, of said court, when the referee submitted his report, an order was made by the judge presiding, to allow defendant’s counsel ninety days after the term to file exceptions thereto.

<p>Proceeding beard at Fall Term, 1881, of CdeavelaNd Superior Court, before Avery, J.</p> <p>The board of county commissioners of Cleaveland, at the session held on the 2nd Monday in August, 1881, in revising the tax lists and valuation reported to them by the list takers, of their own motion and upon their own previous information and knowledge, without the aid oí the testimony of witnesses and in the absence of notice to the defendant company of their intended action, came to the conclusion that the road-bed of the company lying in their county was undervalued on the list at the rate of $3,000 per mile, and should be increased to double that sum. The change was accordingly entered, and the commissioners ordered that notice issue to the company to appear at their next meeting on the 1st Monday in September, and show cause why the valuation should not be fixed at the proposed rate of $6,000 dollars for each mile of the track. Notice was given, according to the. direction of the commissioners, to the company, and it appeared before them, at the time designated, by its counsel and moved to strike out the increased valuation, and restore it to the original amount, not because the estimate was unequal or excessive, or upon any proof adduced of either, but upon the following assigned grounds :</p> <p>1. The company was entitled to notice, and received none, before the August session, of the proposed change in the valuation of the property.</p> <p>2. The action of the commissioners at that time, ex mero motu 'and without evidence, was arbitrary and not warranted by law.</p> <p>3. The supervisory power conferred upon the commissioners to examine and revise the returned tax-lists, could only be called into exercise in such case upon the appl'ica- ' tion of the list-taker, upon ten days previous notice to the owner, and then only on proof of an advance in value of twenty-five per centum or more since the last assessment.</p> <p>Upon the hearing, the commissioners decided to adhere to their former estimate and fix the valuation at the proposed rate, but on being asked for further time for argument on behalf of the company deferred a final determination of the matter until their meeting in October, and directed notice thereof to issue to the counsel on whose behalf the postponement was asked. At this session the company was represented by other counsel who . were heard, and upon consideration the commissioners declined to modify their former decision, and adjudged that the increased valuation should stand. From this the company-appealed to the superior court, and from the ruling of the judge affirming the action of the commissioners, to this court.</p>

Petition by the plaintiffs as executors of Beady A. Green,, for the settlement of the estate of their testatrix, tried, upon the issue raised by the pleadings, at Fall Term, 1881, of Union Superior Court, before Avery, J. The proceeding was commenced by the executors before the clerk of the. superior court against J. L. Green, Lydia A. Duncan and J. R. Duncan, her husband, and others, legatees of the testatrix, for a final settlement of their administration and a discharge…

The injunction was refused and the plaintiffs appealed. A similar application was made in Thornburg v. Commissioners of GastonCounty, at chambers on the 8th of November) 1881, before Avery, J., and refused.

<p>Civil Action tried at Spring Term, 1881, of Mecklen-burg Superior Court, before Eure, J.</p> <p>This case was tried upon demurrer to the complaint.</p> <p>The plaintiff alleges that she is a creditor, for goods sold and delivered in 1874. of McMurray and Davis, who failing in their business'as merchants, in 1875, executed a deed in trust, whereby they conveyed all their effects to the defendant in trust, to sell and apply the proceeds in payment of their debts, which trust the. defendant accepted and has partially executed ; that he has paid to the other creditors forty-five per cent, of their demands, and has on hand assets sufficient to pay a like rate upon the plaintiff’s claim, but refuses so to do, though the same has been demanded of him.</p> <p>The prayer is that he be required to exhibit said deed in trust in court, that the same may be inquired of, and that plaintiff have judgment for a pro rata share of her claim, in the proportion which the whole amount of the assets bears to the whole indebtedness.</p> <p>The defendant assigns as grounds of his demurrer:</p> <p>1. The failure of the plaintiff to make the said McMur-ray & Davis parties to the action,</p> <p>2. Her failure to make their other creditors parties.</p> <p>From a judgment, sustaining the demurrer, the plaintiff appealed.</p>

<p>Civil Action tried at Fall Term, 1881, of Cleaveland Superior Court, before Avery, J.</p> <p>The plaintiff appealed.</p>

<p> Executors and Administrators, when liable for contracts of deceased, and when not. </p> <p>The general rule — that a personal representative of a deceased person is bound to perform all his contracts,'or make compensation out of the estate in ease of non-performance — is subject to the exception that where such contract requires something to he done by the contracting party in person, as here, and he die before performance, the personal representative is not liable to an action for a breach of. the same occasioned by his death.</p>

Civil Action tried at January Special Term, 1882, of Guilford Superior Court, before Oudger, J. The plaintiffs, suing for themselves and other creditors of the defendant, Alfred Layton, allege that he is indebted to the plaintiff, Mebane, by two justice’s judgments, one for the sum of $11.85 and costs rendered upon an open account contracted in 1866; and the other for $20.72 and costs, both of which have been “docketed in the superior court;” and also by a note for $37.43…

<p>Civil Action tried at Eall Term, 1881, of Gaston Superior Court, before Avery, J.</p> <p>This action was commenced before a justice of the peace for the recovery of the sum of $104.33 due by note and account, and the only defence set up, as a counter-claim or set-off, is an alleged indebtedness arising out of unadjusted. partnership dealings between the parties and to be ascertained upon a settlement. The justice upon the evidence adduced disallowed the defendant’s claim and upon his appeal the cause was removed to the superior court. There, upon defendant’s motion, opposed by the plaintiff, a reference was made to the clerk to take and report an account of the partnership matters. When the report came in at a subsequent term, the plaintiff moved the court to vacate the order of reference and set aside the report. He was allowed also to interpose a demurrer upon the ground that the matters of defence were of exclusive equitable cognizance and not within the jurisdiction conferred upon the justice, and thereupon he demanded judgment for his undisputed demand. The court overruled the demurrer, denied the plaintiff’s motion, and he appealed.</p>

Special Proceeding, commenced in the probate court and heard at Fall Term, 1881, of Halifax Superior Court, before Qilmer, J. This' was a petition filed by the plaintiff as executor of G. W. Owens, deceased, to sell the real estate of the testator for the payment of his debts.

<p>Cloud upon Title — Jurisdiction.</p> <p>The principle announced in Busbee v. Macy and Lewis, 85 N. C., 329 and 332, is decisive of this ease.</p>

Civil Action tried at Pall Term, 1880, of Wakb Superior Court, before Graves, J. The plaintiff asked that defendant be declared trustee, and be decreed to convey title to plaintiff of a certain tract of land (situate near the city of Raleigh) in his possession, and the cause was submitted upon the following “ case agreed; ” In the year 1862, John Devereux, as quarter-master for certain military forces known as “ State Troops,” acting under orders issued by James G. Martin,…

<p>INDICTMENT for forgery tried at Fall Term, 1881, of Mecklenburg Superior Court, before Avery, J.</p> <p>Verdict of guilty, judgment, appeal by defendant.</p>

INDICTMENT for larceny tried at Spring Term, 1881, of Greene Superior Court, before Graves, J. The defendant is charged with stealing and also with the felonious receiving a hog, the property of E. M. Albritton, and on the .trial offered himself as a witness in his own behalf. Upon the cross-examination he was asked by the solicitor if he stated before the justice of the peace at the preliminary hearing, that he did not know whether the hog was scarred or not.

<p>Indictment for an affray tried at January Term, 1882, of Wake Superior Court, before Gilmer, J.</p> <p>Appeal by defendant.</p>

Indictment for stealing a horse, tried at Spring Term, 1882, of Buncombe Superior Court, before Gilliam, J. The mare alleged to have been stolen was put in the stable of the prosecutor on the night of Saturday, the 16th of January, 1882.

Ikdictment tried at Spring Term, 1882, of Burke Superior Court, before Eure, J, The defendant was charged with selling spirituous liquor by a measure less than a quart in violation of the act of 1874-’75, ch. 39.

<p>Proceeding in Bastardy — Evidence—Collateral Matter.</p> <p>1. The act oí 1879, eh. 116, in reference to proceedings in bastardy, repeals only so much of the former law as gave the magistrate the right to initiate the same upon his own knowledge or information, and leaves it optional with the mother whether she will institute proceedings against the father, even before the birth of the child. But if the child after its birth is likely to become a county charge, proceedings may be taken by a county commissioner.</p> <p>2. An issue of bastardy being a civil suit, either party has the right of appeal, and no notice thereof is necessary where the adverse party is in court. Act 1879, ch. 92, §§ 6, S.</p> <p>3. The party eliciting evidence on cross-examination, which is collateral and not material to the issue, is bound by the answer of the witness.</p>

Indictment for larceny tried at Spring Term, 1881, of Wayne Superior Court, before Graves, J. This defendant and two others were indicted for larceny at March term, 1881, of the inferior court of Wayne county.

Indictment for larceny tried at Fall Term, 1881, of Richmond Superior Court, before Graves, J. The indictment was found by the grand jury of Anson county at spring term, 1880, of the superior court for that county, against the defendant John Dulton and others.

Indictment for a misdemeanor tried at January Term, 1882, of Wake Superior Court, before Gilmer, J. The defendant was indicted for removing a fence contrary to the statute. Bat. Rev., ch. 32, § 93. The jury returned a special verdict as follows: On the 27th of March, 1881, the defendant without the consent of the prosecutor moved a certain fence, dividing the cultivated field of the prosecutor from the field of the defendant and his brother.

<p>INDICTMENT for keeping disorderly house, tried at January Term, 1882, of Wake Superior Court, before Gilmer, J.</p> <p>Verdict of guilty, judgment, appeal by defendant.</p>

INDICTMENT for assault with intent to kill, removed from Greene, and tried at Spring Term, 1881,'of Wayne Superior Court, before Graves, J. Verdict of guilty, judgment, appeal by defendant.

INDICTMENT for a misdemeanor, tried at Fall Term, 1881, of Vance Superior Court, before Gudger, J. The defendant is indicted for violating the act of 1877, ch. 4 — if any person shall cast, or throw, or shoot any stone, rock, bullet, shot, pellet, or other missile, at, against, or into any railroad car, locomotive or train, while the said car or locomotive shall be in progress from one station to another, or while the said car, locomotive or train shall be stopped for any…

<p>Marriage — Effect of the ad of 1868.</p> <p>The marriage act of 1806, eh. 40, validates a marriage celebrated between a man and woman at the time they were slaves, and makes the living together as man and wife after emancipation and up to the date of ratification of the act, evidence of the parties’ consent. Nor can such marriage be avoided by a failure to have an acknowledgment of the same entered of record.</p>

INDICTMENT for assault and battery,, tried at Fall Term,. 1881, of Anson Superior Court, before Graves, J. The defendants, Powell and Edwards, were charged in a magistrate’s warrant with committing an assault upon the person of the complainant, Henry Waddell. Upon the trial the defendants were acquitted, and the case dismissed at the costs of the prosecutor who thereupon appealed to the superior court.

Indictment for rape tried at Pall Term, 1881, of Rowan Superior Court, before Eure, J. The prisoner was charged with rape committed upon a*, infant female under ten years of age, and was put upon his trial at said term.

<p>INDICTMENT for assault and battery tried at Fall Term, 1881, of Richmond Superior Court, before Graves, J.</p> <p>The defendant was indicted for an assault and battery committed upon one Nathan Reyuolds, and for his defence relied upon the plea of former acquittal. The jury returned a special verdict as follows: “ That the defendant was indicted at the present term of this court for an assault on one Atlas Spivey, and upon that trial the state showed in evidence that on the 23rd day of December, 1879, the said Atlas Spivey and Nathan Reynolds, and some eighteen more persons, went to the defendant’s house with guns, bells, horns, and tin pans, and marched around the house, and when about to leave fired off the guns; and that the defendant thereupon fired a gun at them and in direction of the crowd, twice, in rapid succession, and one shot struck the said Spivey; and that upon such trial the defendant was acquitted by the jury; and further, that the evidence in the present indictment is to the same acts of the defendant, and that the said Nathan Reynolds was stricken by a shot from the defendant’s gun fired as aforesaid. If in law these facts amount to a former acquittal, then the jury find in favor of the defendant; but if in law they do not amount to a former acquittal, then they find that he was not formerly acquitted.”</p> <p>His Honor, being of opinion with the defendant, rendered judgment accordingly, and the solicitor for the state appealed.</p>

<p> Assault with intent to commit Rape. </p> <p>On trial of an indictment for assault with intent to commit rape, it ap. pearetl that the prosecutrix, while going from her house to her motber-in-law’s, about a mile distant, was carrying with her a child in a baby-carriage and accompanied by a boy of six years of age. Soon after passing defendant’s bouse, she heard defendant (who was about seventy-five yards ofi) say, “Halt, I intend to ride in the carriage. If you don’t halt. I’ll kill you when I get hold of you.” She ran and called . for her mother-in-law, defendant running after her and telling- her to stop, until she got to the gate where she met another woman to whom she related the matter; Reid that the evidence is not sufficient to warrant a conviction of the intent charged. At most, the circumstances only raise a suspicion of defendant’s purpose, and it was error in the court to permit the jury to consider them. (State v. Neely, 74 N. C., 425, overruled).</p>

<p>Indictment under the statute for entering into a dwelling house in the night time otherwise than by breaking, .tried at Fall Term, 1881, of Vance Superior Court, before Gudger, J.</p> <p>Tire indictment is as follows: The jurors for the state upon their oaths present, that Willis Hughes, late of Vance county aforesaid, on the first day of August, 1881, with force and arms at and in the county aforesaid, a dwelling house of one E. G. Davis there situate, then occupied by one Frank Ward, about the hour of eleven on the night of the same day, unlawfully and wilfully did enter otherwise than by breaking, with intent the goods and chattels and moneys of the said E. G. Davis in the said dwelling house then and there being, then and there feloniously and wilfully to steal, take and carry away, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state.</p> <p>Before the jury were impanelled, the defendant, through his counsel, moved to quash the indictment. His Honor sustained the motion and^ordered the bill to be quashed, and the solicitor for-dhe state appealed.</p>

IndictmeNT for larceny tried at Spring Term, 1881, of Rockingham Superior Court, before Avery, J. The defendant was charged with stealing flour, the property of P. J. Waynick. It appeared in evidence that the said P. J. Waynick was a miller in the employment of T. C. Moore and Elisha Wade, who were the owners of the mill, and the said Waynick had entire charge of the mill and profits.

Indictment for perjury, tried at Fall Term, 1881, of Mitchell Superior. Court, before Seymour, J. Tho defendant was indicted for perjury, alleged to have been committed in the trial of an indictment for larceny, against one James Taylor and four others, had at fall term, 1872, of Mitchell superior court.

IndictmbNt for forgery tried at November Special Term, 1881, of New Hanover Criminal Court, before Meares, J. The defendants, Charles Williams and John Deal, were found guilty by the jury, and the court sentenced each of them to be imprisoned in the penitentiary for two years, from which judgment they appealed, assigning as error, that as the bill of indictment is drawn at common law, and not under the statute, a sentence of imprisonment in a penitentiary upon their…

INDICTMENT for false prefence tried at Spring Term, 1881, of Chowan Superior .Court, before Gilmer, J. The indictment is as follows: The jurors for the state upon their oath present that Henry Eason, late of the county of Chowan, with force and arms at, and in said county, on the first day óf April, 1881, designing and intending to cheat and defraud K. R. Pendleton, out of his goods and moneys, chattels and property, did unlawfully, wilfully, designedly, falsely, and…

<p>Libel — Indictment.</p> <p>t. In an indictment for libel, the alleged libellous matter must be set out according to its tenor. Tenor imports identity, and whenever that is destroyed, either by the omission or adoption of any one word, however slight the sense may be affected, it is fatal to the indictment.</p> <p>2. To give the substance is not sufficient; though the misuse or omission of a letter which works no such change in a word as to make of it a different one, will not be treated as a fatal variance.</p>

INDictment tried at Spring Term, 1880, of Craven Superior Court, before Gudger, J. The defendant was tried and convicted upon an indictment under the act of 1879, ch. 156, entitled “an act to make the slander of women indictable,” and appealed from the judgment pronounced.

Indictment for a' nuisance in obstructing a highway, tried at Fall Term, 1881, of Chaven Superior Court, before Gilmer, J. Upon the special verdict found by the jury, His Honor held that the defendant was not guilty as charged in the bill of indictment, and the solicitor for the state appealed.

INDICTMENT for an assault and false imprisonment, tried at Pall Term, 1881, of Henderson Superior Court, before McKoy, J. The evidence on the part of the state was that the prosecutor, King, between the hours of ten'and eleven o’clock at night, on the day of the alleged assault, was found by the defendant lying in a state of helpless intoxication on the side-walk in a street of the town of Hendersonville, with his head on the step of the post office.

<p>Indictment, for larceny tried at Spring Term, 1880, of Northampton Superior Court, before Oudger, J.</p> <p>In separate counts the bill of indictment charges the defendants, Matt. Bragg and Hugh Cain, with the larceny and felonious receiving of ten pounds of seed-cotton, and also of ten pounds of lint cotton, specifying the value of each, the property of M. W. Ransom, and upon trial before the inferior court of Northampton county, both were found guilty.</p> <p>Before the jury the state offered testimony to show that on a certain night in January, 1879, the gin house on the plantation of said Ransom, some four miles distant from the town of Jackson, was entered and a considerable quantity of loose cotton stored therein, both in the seed and picked, taken and carried away. The next day the two defendants were met on the road leading thence towards Jackson, each with a bag of seed cotton, which they subsequently concealed behind a log, where it was found and recognized as corresponding with that stolen.</p> <p>The state also offered evidence that the defendant, Matt. Bragg, removed from the plantation of Ransom where he lived, on the day preceding the theft, to an adjoining plantation, known as “Mowfield,” where the other defendant lived, and that he carried with him a lot of cotton, part of which his wife had gleaned from a field he had cultivated, and the residue from a field which had been cultivated by another tenant, who gave his consent to her gathering it. Both fields were cultivated under a contract with the owner upon shares. There was other testimony, not necessary to mention, pointing to the defendants as the persons who en» tered the gin house and implicating them in the criminal act.</p> <p>The evidence of the removal of the ungathered cotton from the fields was admitted, after objection to its perti-nency under the form of the indictment, and the court charged the jury in relation thereto (and to this the defendants also except) in these words :</p> <p>“ If the jury should believe that the cotton found in the sacks was gathered from the fields of M. W. Ransom cultivated on shares, with a felonious intent to deprive him of his part of the cotton, they should find the defendants-guilty ; but if they should believe that the defendants took the cotton without a guilty knowledge or intent, o.r under a belief or misapprehension that they had a right to take it,' then' they should find them not guilty.”</p> <p>The defendants moved for a new trial for the errors assigned, and being refused and judgment pronounced, the defendant, Matt Bragg, appealed to the superior qourt. Upon a hearing in that court, the judge being of opinion that no error had been committed, affirmed the ruling of the inferior court, and directed his judgment to be certified. From this judgment the defendant prayed an appeal to this court, which was denied,- and thereupon he sued out a writ of certiorari, under which the record is brought up, and we are required to review the regularity of the proceedings and the rulings in the trial court.</p>

INDICTMENT for larceny tried at Fall Term, 1881, of An-son Superior Court, before Graves, J. It was in evidence .on the part of the state that the defendant was cultivating, as a cropper, a part of. the land of one Mowery in Anson county.

IndictmeNT for misdemeanor tried at Fall Term, 1881, of Washington Superior Court, before Bennett, J. The defendant was charged with carrying a concealed weapon contrary to the statute — Acts 1879, ch. 127. At the trial, one Cahoon was introduced as a witness by the state, and testified that he saw the defendant have a pistol at a certain place, away from his own premises. The pistol was concealed in the pocket of his pants.

The defendant was indicted in the inferior court of Ashe county for carrying a pistol concealed about his person while off his own premises. The jury returned a special verdict which was as follows : “ We find that the defendant on the 24th day of December, 1880, went to Horse Creek Store with two pistols buckled around him without scabbards and naked on a belt on the outside of his clothing, and off his own premises.

Indictment for assault and battery, tried at Fall Term, 18'81, of Watauga Superior Court, before Seymour, J. The defendant wa3 indicted jointly with one Green ; and on the trial the state called Green as a witness against his co-defendant Smith, to which Smith excepted. It appeared to the court, and the court so decided, that Green was an unwilling witness, and that the truth could not be elicited from him without allowing the state to ask leading questions.

Inuictmext' for misdemeanor, tried at Fall Term, 1881, of Chowan Superior Court, before Bennett, J. The defendant was tried and convicted for selling spirituous liquor on Sunday, without having a physician’s prescription, and not for medical purposes.

This was a motion by the plaintiffs, to be allowed to file exceptions to the report of a referee in a case pending in Halifax superior court.