Volume 87 — North Carolina Reports

<p>Order of Arrest — Res Adjudicada.</p> <p>Upon refusal of a motion to vacate an order of arrest, the party at the nest term makes a similar motion and upon the same grounds; Held, that the judge presiding at such nest term properly declined to entertain it. It is res adjudicata.</p>

Civil AotioN tried at Spring Term, 1882, of Oabteret -'Superior Court, before Gilmer, J. This action is founded on a sealed note executed by defendant to plaintiff’s intestate on the 24th of January, 1866, payable two years after date, and upon which a credit of 3¡j>85.46 was endorsed on the 14th of September, 1869. The defence set up was, that the bond was presumed to •have been paid by lapse of time,-and that it had in fact been paid to said intestate in goods.

The restraining order theretofore issued was continued until the final hearing of.the action, and the defendant appealed.

<p>Evidence — Contract—Usage.</p> <p>The usage of one in conducting his own business, if known to the party dealing with him, is competent evidence of the terms of the contract . between them. . . ..</p>

Superior Court, before Shipp, J. Under the act of 1876-’7, ch. 242, establishing the criminal court of New Hanover county, the plaintiff was elected solicitor of that court, and entered upon the duties of his office at the first term, held in April, 1877, and has since continued in the discharge of such duties.

<p>MotioN under section 133 of the Code, to set aside judgment, heard at January Term, 1882, of Wake Superior Court, before Gilmer, J.</p> <p>The plaintiffs appealed.</p>

<p>Verification of Pleadings — Right to open and conclude.</p> <p>1. A verification, to a complaint, made by an agent or attorney of a nonresident, to the effect that the claim sued on is in writing and in his possession for collection — giving facts in his personal knowledge and sources of other information — meets the substantial requirements of section 117 of the Code.</p> <p>2. The right to open- and conclude the argument is with the plaintiff, where there are several issues and he is called on to sustain only one of them.</p> <p>3. No appeal lies from an order granting or refusing a continuance.</p>

Civil Action tried at Fall Term, 1882, of Mecklenburg Superior Court, before Graves, J. The only question presented in this case is as to the sufficiency of the verification of the complaint.

Civil ActioN tried at Spring Term, 1882, of Mecklen-bueg Superior Court, before Gudger, J. S. C. Burchard, one of the plaintiffs, pursuant to the summons issued against the defendants, filed his complaint and alleged an assignment to him by the partnership firm of Smathers & Forbis of a claim held by them against the •defendants, for goods sold and delivered, in the sum of §253.30, (the particulars being set out in an exhibit) and payable at sixty days from November 8, 1878,…

<p>Appeal by plaintiffs from an order made at Spring Term, 1882, of Halifax Superior Court, by Bennett, J.</p>

<p>Civil Action tried at Spring Term, 1882, of Beaufort Superior Court, before McKoy, J.</p> <p>The defendants offered in evidence, on the trial of the issues before the jury, a written acknowledgment purporting to come from one of the assignors of the plaintiff, and bearing the signature of the firm of which he was then a member, of the receipt of the defendants’ note for $650, due at six months on account; and underneath, upon the same page and of the same date and bearing the firm name, was an explanatory memorandum, addressed to the defendants, stating that in case the sale of the Taylor Gin should be insufficient to cover the above amount, a remittance would be made to meet the deficiency, and in time to take up the note.</p> <p>These papers bear date June 17th, 1872. Upon previous trials the entire paper had been, introduced by the defendants and read in evidence. At the last trial the defendant, T. H. B. Myers, examined on his own behalf to prove the execution of both writings, and after a close inspection, testified that they were not both in the same handwriting, and the explanatory memorandum was ruled out, and the plaintiffs had a verdict for a part of their demand.</p> <p>The defendants thereupon moved for a new trial, and in support thereof, the .affidavit of said Myers was submitted, wherein he says that for the first time when giving in his testimony he discovered the difference in the handwriting, and that in his opinion each was written by a member of the firm, though not by the same person, and he expects to be able to show the fact at the next term.</p> <p>The court being of opinion that the defendants were surprised and the verdict, if allowed to stand, “would work injustice ” to the defendants, “ in its discretion ” ordered the verdict and judgment to be set aside and á new trial awarded. From this ruling the plaintiffs appeal.</p>

<p>Pleading — Issues—Account—Executors and Administrators— Parties.</p> <p>1. The pleadings should present the main facts of a case — those upon which the right of action, or of defence, depends, and which are indispensable thereto. And the court must not submit to the jury such issues as are directed to the mere details of evidence.</p> <p>2. Where the main issue is as to the fraudulent procurement of a settlement between parties, it is not error to refuse to submit an. issue relating to the insolvency of one of them and the payment of money to him — this being merely a circumstance bearing on the main issue — as for instance, the. acceptance by the executor in this case of his own insolvent paper for debts due the estate, is some evidence of fraud, and proper for the jury to consider in making up their verdict upon the main issue.</p> <p>3. In an action for an account, where defendant pleads quod plene com-pútente lie most aver that there lias been an “ account stated,” and that the same is just and true; and where a receipt is given for the amount ascertained to be due, it operates a bar to an action for another account touching the same matters.</p> <p>4. An executor who pays his private debt out of assets of his testator commits a devastavit, and the creditor of the executor who knowingly accepts (he same, is guilty of collusion, (whether he believes the executor to be solvent or not) and is liable to an action for the amount of the assets so misapplied.</p> <p>5. An administrator d. b. ■»., c. t. a. is the representative of the testator, and the proper party plaintiff in an action to recover the assets of the estate.</p>

Civil Action tried at Fall Term, 1880, of Wake Superior Court, before Graves, J. In this case numerous exceptions were taken in the court below and argued here, but as in the opinion of this court the ease was made to turn upon the construction of the contract betwen the parties, only so much of the case is set out as is necessary to make that part intelligible.

Ejectment tried at Fall Term, 1881, of Wake Superior Court, before Gilmer, J. The following issues were submitted to the jury: 1. Is the plaintiff entitled to the possession of the land described in the complaint? 2. Does the defendant unlawfully withhold said land from plaintiff? The plaintiff read in evidence a deed from Judkins Bar-ham executed to Perry Barham in 1837, a deed from Perry Barham to W. H. Pace executed in 1880, and a deed from Pace to plaintiff.

<p>Deed — Trusts and Trustees.</p> <p>1. A deed to M and his heirs, in consideration of one dollar, “ as well as the natural .affection” of the grantor to his daughter, wife of said M, conveys an absolute estate to the grantee, and does not annex a trust in favor of the wife. . :</p> <p>2. STo consideration is necessary in a deed executed under the statute, as none was under a feofment to whieh it succeeds.</p> <p>3. Trusts arising from operation of law are : 1. Where an estate is purchased in the name of one person and the consideration is paid by another. 2. Where the intention not to benefit the grantee is expressed upon the instrument.</p>

<p>Deed — Fraud—Evidence.</p> <p>1. The maker of a deed cannot be allowed to prove that he had made an agreement with the trustee inconsistent with the one expressed in the deed.</p> <p>2. A deed of trust conveying a stoek of goods to secure certain debts, and providing that after the expiration of twelve months and in ease of default, the trustee shall take possession and sell the same, after allotting to the trustor his personal property exemption, is fraudulent in law.</p> <p>3. And proof that the trustor remained in possession and managed the business, as agent of the trustee, and received and expended the profits on his own responsibility, furnishes conclusive evidence of fraud.</p>

Special Peoceeding for partition of land, commenced before the clerk and transferred to and tried at July Special Term, 1882, of Vance Superior Court, before Graves, J. The plaintiff in his complaint alleges that defendants Lucy S. Edwards, Mary L. B. Edwards and Elizabeth P. Edwards were tenants in common and owners in fee simple of the tract of land described in the petition for partition ; that L. A. Paschall, administrator of one Martha Edwards, deceased, instituted a…

Civil ActioN tried at Fall Term, 1881, of Iredell Superior Court, before Beymour, J. The'plaintiffs intermarried in the year 1870, and have infant children now living. In 1872, John A. Murchison, the father of the male plaintiff, died leaving a will jn which he devised the land in controversy to his widow, Barbara, for life, with remainder in fee to his said son.

Ejectment tried at Spring Term, 1882, of Pender Superior Court, before Gilmer, J. The plaintiff alleges that he is the owner in fee of the land in controversy and that the defendants wrongfully withhold the possession of the same. Defendants deny the allegations of the plaintiff and the following issues were submitted to the jury; 1. Is the plaintiff the owner in fee of the land described in the complaint? 2.

<p>Ejectment tried at Spring Term, 1882, of Halifax Superior Court, before Bennett, J..</p> <p>Appeal by plaintiff.</p>

Ejectment tried at November Special Term, 1881, of Halifax Superior Court, before Gilmer, J. The facts set forth in the answer as admitted by the demurrer are as follows: In the year 1876 the defendant instituted in the superior court of Halifax county a suit against one Joseph Hodges, who was the husband of the defendant, setting forth that her said husband had abandoned her, and left the state, and failed to contribute anything for her support and maintenance ; that the…

C. Strudwick. On the 27th da}' of the same month, C. W. Thorn & Co., and others, creditors of the defendants, recovered judgments against them in a justice’s court, aud immediately liad them docketed, and instituted proceedings supplementary to execution, and on the 5th day of August obtained an order from the clerk of the superior court appointing a receiver with instructions to take the fund then in. Strud-wick’s hands, subject, however, to all prior liens.

MotioN to dissolve an injunction heard at Pall Term, 1882, of Mecklenburg Superior Court, before Graves, J. An order'had been made restraining an execution issued from the superior court upon a judgment rendered at spring term, 1877, in favor of the plaintiff against the defendants, and this motion was made by the plaintiff to dissolve the same.

<p>Ejectment tried at Fall Term, 1881, of Hyde Superior Court, before Bennett, J.</p> <p>Appeal by plaintiff.</p>

Civil ActioN, tried at Spring Term, 1881, of Wilees Superior Court, before Seymour, J. The only question presented by this appeal is whether the' court below committed an error by striking out the answer of the defendants, as sham and frivolous, and giving judgment for the plaintiff. The plaintiff alleged that the defendants were indebted to him by two single bills, which were as follows: First.

<p>Plea in Abatement — Jurisdiction.</p> <p>tt. A party cannot have the benefit of a plea in abatement apon a motion in arrest of judgment.</p> <p>3. The pendency of a former action is strictly a matter oí abatement, and must be set up in the answer, or in some way insisted on before verdict í if not,it is deemed tobe waived.</p> <p>3. Where there is defoet of jurisdiction, it cannot he conferred by consent;: but were the court has a general jurisdiction of the subject, and-' the lack of it in a particular case depends upon some exceptional matter, objection must be taken in limme.</p>

Civil Action tried at Fall Term, 1882, of Cumberland' Superior Court, before Gilmer, J. This action was brought by the plaintiff as mortgagee ■against the defendant R. T. Scanlin and A. A. McKethan, to recover the possession of the mortgaged premises.

<p>MotioN for injunction to restrain defendants from collecting certain taxes, heard at Fall Term, 1881, of Rutherford superior court, before Avery, J.</p> <p>Motion allowed and defendants appealed.</p>

<p> Taxation of Drummers. </p> <p>The drummer’s section of the revenue act, gives the party licensed the right to sell the commodities mentioned in any county of the state, without being liable to county or municipal tax.</p>

Motion by plaintiff company for an injunction heard at January Special Term,. 1882, of Mecklenbukg Superior Court, before JBennetí, J. The court refused to grant the motion, and dissolved the restraining order theretofore made, and the plaintiff appealed.

Roue-on defendants to show cause wliy they should -not be attached for contempt ki failing to obey a writ of mandamus, heard at Fall Term, 1882,-at Bladen Super-iorCourt, -before Gilmer, J. When this cause was hero on a former appeal at October term, 1881, it was open su-ch a defective finding of facts that the court were unable to dispose of the controversy upon-its (merits, and it was remanded. (See 85 N. C., 211.

Amercement of sheriff — Motion of plaintiff to make judgment nisi absolute, beard at January Special Term, 1882, of NortiiamptoN Superior Court, before Graves, J. On the 17th .of October, 1878, execution issued on a judgment recovered in the said court by the plaintiff against tiie Seaboard and Roanoke railroad company, and was delivered to the defendant, then sheriff, returnable to the next ensuing term, which began on the 4th Monday after the 1st Monday in March.

<p> Execution Sale. </p> <p>Execution sales made at an improper time and place are void, (Act off 3877, eh. 216, § 2, establishes sale-days.) The case of Biggs v. Brickett 68 ÍT. C.r 239, where assent of defendant in the execution to change place was given, discussed by Smith, C. J,</p>

Civil ACTION tried at Fall Term, 1882, of Okans-e Superior Court, before Shipp, J. On November 8th, 1880, the plaintiff bought of the defendants, Cooper & Lunsford, (who were eonducting át Durham, N. 0., the business of storing and selling leaf tobacco, and had a warehouse used forthat purpose) twenty-five particular hogsheads of such tobacco then in their warehouse, at the price of $2,538.38, of which number five were removed and the others suffered to remain.

<p>MotioN to set aside a sale of lands, made under an execution, heard at July Special Terra, 1882, of Gaston Superior Court, before Qudger, J.</p> <p>The execution issued under a judgment which the plaintiff of record recovered in the superior court against the defendant, (The King’s Mountain Mining Companj^) for the sum of $2,7.11.72. In the judgment, after premising that the defendant was a corporation, and had given a mortgage upon all its property within the state, but that the plaintiff’s debt existed prior thereto, it was declared by the court that the said debt should constitute the first lien upon said prop-ertj", and unless discharged by a.given day, that then the sheriff shall proceed to execute the same in the mode prescribed by law for sales under execution.</p> <p>This judgment the plaintiff caused to be docketed, and after the expiration of the time fixed by the judgment, he procured execution to issue, which the sheriff levied on the lands known as the “King’s Mountain Mining Company,” comprising some 485 acres, including the gold mines and buildings and machinery belonging thereto; and on the 5th day of May, 1882, the same was sold, and R. W. Sandi-fer became the purchaser at the price of one hundred dollars.</p> <p>At the ensuing term of the court, the plaintiff moved that said sale be set aside and a new sale orderedj accompanying his motion with the affidavits of his attorney and the sheriff, as to the gross inadequacy of the price bid, and also with an offer to increase the bid ten per cent. The purchaser, representing himself and the defendant company, resisted the motion, filing counter-affidavits, setting forth that the property was all subject to prior mortgages and older judgments, and that the sale had been fairly and openly conducted.</p> <p>The judge after-hearing argument of counsel, “ refused to pass upon the plaintiff’s offer to increase the bid, or the question ás to the inadequacy of the price, being of the opinion that as the sale had been made under a decree and execution in favor of the plaintiff, and therefore at his instance, the law would not entertain or hear a motion from him to set aside the sale, and that he had no standing in court.” The motion was accordingly overruled and the plaintiff appealed.</p>

MotioN by defendants to set aside an execution, heard at Spring Term, 1881, of Union Superior Court, before Eure, J. At fall term, 1869, of the superior court of Union county, the plaintiff recovered judgment against the defendants upon a debt contracted in March, 1861, and caused the same at once to be docketed.

<p>MotioN to set aside an execution heard at Fall Term, 1881, of Pitt Superior Court, before Shipp, J.</p> <p>In 1867, Theophilus Bland instituted an action in the superior court of Pitt county against C. J. O’Hagan and others, which pended until spring term, 1870, when it was brought to trial and a verdict rendered in favor of the de-, fendants, and thereupon it w&s adjudged that the defendants recover of the said plaintiff and his sureties on the prosecution bond the costs of the action. There was an appeal to the supreme court where the judgment of the superior court'was affirmed, and at fall term, 1870, of this latter court the following judgment was signed by the presiding judge: “Judgment in pursuance of the decision of the supreme court against the plaintiff for the costs of this suit.”</p> <p>At the same term there was spread upon the judgment docket of said court what purported to be a judgment in favor of the “01erks office against Theophilus Bland,” wherein was an itemized statement of the amounts due the officers of the court from the said Bland, amounting to $21.35, Under this judgment executions were several times issued and returned without sale, until June 7th, 1880, when an execution issued and the sheriff returned thereon that he had sold the land of the said Bland thereunder to Harry Skinner, as the last and highest bidder.</p> <p>On the 10th day of September, 1880, the defendants in said execution gave notice to the clerk of the superior court for Pitt county, and to Messrs. Latham & Skinner, attorneys at law, that he should move the court, at its ensuing term, to set aside and cancel the execution under which the land had been sold, and which purported to have been issued on the 7th June, 1880, “ upon the ground, amongst others, that the pretended judgment was dormant and had never, been docketed.”</p> <p>At spring term, 1881, Harry Skinner, as the purchaser of the land, is allowed to intervene and oppose the motion h> set aside the execution, and at fall term of that year both parties filed affidavits-and introduced much evidence before His Honor Judge Shipp, then holding the court, who after considering the same, found the following facts :</p> <p>1. That at fall term, 1870, of the superior court of Pitt county, a judgment was rendered in favor of the officers of the court against Theophilus Bland for $21.35 which with the accruing costs tó spring term, 1880, amounted to $24.50.</p> <p>2. That said judgment was duly docketed at fall term, 1870.</p> <p>3. That executions issued thereon from time to time which were returned unsatisfied.</p> <p>4. That an execution issued from spring term, 1880, returnable to fall term of the same year, by virtue whereof the sheriff after due advertisement sold a tract of land belonging to Bland to said Skinner as the last and highest bidder and made him a deed therefor.</p> <p>5. That the said Bland had notice of the issuing of the several executions from time to time under said judgment.</p> <p>Thereupon it was adjudged that the motion of the defendant Bland to set aside the execution be dismissed, and from this judgment the defendant appealed.</p>

Motion to set aside a judgment, heard at Spring Term, 1882, of Pitt Superior Court, before Gilmer, J. This is another motion made in the cause of Sheppard v. Bland, the preceding case, and to which reference is made for the better understanding of the facts of this case.

Civil ActioN tried at Spring Term, 1882, of Cherokee Superior Court, before Gilliam, J. The plaintiff commenced this action on the 11th of October, 1881, to recover the sum of $981.37 alleged to be due him from the defendant upon a bond given on the 20th of June, 1860, and payable one day afterdate.

<p>Appeal — Landlord and Tenant — Equitable Title — Estoppel.</p> <p>1. An appeal must be taken to the next term of the appellate court; and it is therefore error to proceed in a case on appeal from a justice’s court taken after that time, in the absence of notice to the appellee that he may show cause against it.</p> <p>2, In a proceeding under the landlord and tenant act, the question of jurisdiction is not to be determined by matter set up in the answer, but the court should hear the evidence as to the issue of tenancy, and if the same be found for the landlord, an estoppel operates upon the tenant, and the title to the land is not drawn in controversy.</p> <p>3. The equitable title whieh serves to defeat the estoppel, is only that which- arises out of some peculiar relation between the parties, as would make it inequitable on the part of the landlord to oust the tenant.</p>

Ejectment .tried at Spring Term, 1882, of Rutherford Superior Court, before Gudger, J. Both parties claim title under Jason PI. Withrow. The plaintiff offered in evidence a deed from said Jason to himself, dated June 15, 1882, for one half interest in the land in dispute, which was admitted to probate on the 24th of September, 1877.

<p>Ejectment — Location of Boundary — Evidence.</p> <p>The declarations of a disinterested person, since deceased, made before a controversy has arisen in reference to private boundaries, are admissible in evidence ; and this rule is not varied by reason of the fact that the.party making the declarations was at the time a slave, since if alive he would now be competent to testify.</p>

<p>Ejectment, evidence in— Witness under Section 343.</p> <p>1. In ejectment, as in other eases, the order in which evidence is introduced is discretionary with the presiding judge.</p> <p>2. In such ease, where the purchaser at sheriff’s sale is the plaintiff in the execution, he must show both judgment and execution ; if not, he need only show an execution, levy and sale. The plaintiff here bought under an execution to which he was a stranger, and hence the estoppel insisted on does not apply.</p> <p>3. The recital in a sheriff’s deed is prima facie evidence of the facts set forth.</p> <p>4. The cases of Morgan v. Banting and Loelchart v. Bell, 86 1ST. C. 66 and 443, in reference to competency of witness under section 343 of th'e Code, approved.</p>

Ejectment tried at Pall Term, 1882, of Catawba Superior Court, before Avery, J. The following issues were submitted to the jury : 1. Did Jonathan Bost sign, seal and deliver the paper - writing offered in evidence, and under which the plaintiffs claim. 2. Did the defendant, Daniel Setzer, have notice of the execution of said deed, and the claims of the heirs of Miles W. A. Bost, when the said Jonathan Bost conveyed the land in controversy to said Daniel Setzer? 3.

Civil Action tried at Spring Term, 1882, of Halifax Superior Court, before Bennett, J. The following facts were agreed upon : 1.

•Civil Actkot tried at Spring Term, 1882, of Richmond Superior Court before Shipp, J. The plaintiff alleged that Alexander Malloy died in the year 1878, and the plaintiff during the same year was appointed and qualified as his administrator, and that the defendant in the lifetime of his intestate executed to him the bond sued on, which is as follows: “ One day after date I promise to pay Alexander Malloy, or order, the sum of five hundred dollars, for value received of him.”…

■ The plaintiff alleges that the partnership firm of G. W. Chalk & Co., constituted of himself and defendant J. L. Hardin, in conducting their business as such, and the plaintiff in prosecuting it in his individual capacity after he became sole owner of its effects by an assignment from his associate, became indebted to the defendant hank in the two notes of $2,000, and $550, to secure which, drafts, notes and acceptances of more than $8,000 in amount were deposited with the…

Civil actioN tried at Spring Term, 1882, of Cleaveland Superior Court, before Eure, J. This action, begun on the 31st day of March, 1882, is brought by the plaintiff, as sheriff and treasurer of Cleave-land county, against the defendant Doggett, as tax collector for said county, and the other defendants, as the sureties on his official bond, given as such.

Civil Actiok tried at Spring Term, 1882, of Bladen Superior Court, before Shipp, J. The testatrix of the plaintiff and the intestate of the defendant on January 17th, 1860, and just previous to the solemnization of their contemplated marriage, executed a deed of marriage settlement, to which one Samuel Anders was also a party, whereby certain slaves, household furniture and notes belonging to the testatrix were conveyed to the latter for her separate use, and upon the…

Civil Action, tried at Fall Term, 1882,- of Greene Superior Court, before MaeRae, «7, This action was begun on the 1st day of March, 1880. ’The plaintiff alleges that being tax collector for Greene -county he had a settlement with the defendants, and the -then treasurer of the county on the 30th day of May, 1873, and that'he then paid to the latter the sum of $7451.70 in full of the amount collected by him from all sources — taking a receipt therefor.

<p>Equity — Marshalling Assets — Mortgage— Trust — Homestead.</p> <p>1. Equity will not displace one right to uphold another.</p> <p>2. The doctrine ol marshalling securities does not apply where one security is given and expressly declared to be in exoneration of another, though other interests are involved in the latter security and it is insufficient to protect all of them.</p> <p>3. Mortgage of land to B. & Co., and afterwards a deed in trust by same party conveying other property to secure them and other creditors ; Held, that B. & Co. are entitled to share pro rata in the proceeds of the trust sale, so as to exonerate pro tanto the mortgaged premises and relieve the mortgagor’s homestead.</p>

The action is to recover the amount due on a promissory note which the complaint states to have been executed on November 1st, 1874, by the defendants to the intestate of the plaintiff in the sum of $1,244.72 bearing interest from date, and that no part thereof has been paid.

MotxoN for injunction heard at chambers in Asheville on the 14 i h of March, 1882, (in an action pending in Haywood Superior Court) before Gilliam, J. The plaintiff in his complaint alleges that on the 23d of February, 1881, the defendant, Rinehart, sold to him a number of walnut trees standing on the land of said defendant, in the county of Haywood, and at the time of the sale reduced the contract of sale to writing, a copy of which is as follows : I, William Rinehart, of…

<p>(For syllabus, see preceding case.)</p>

<p>Cherokee Indians — Jurisdiction.</p> <p>The Cherokee Indians in this state have been plaeecl upon the same footing with other tribes by an act of congress, passed in pursuance of the power granted by the constitution in reference to “ regulating commerce with foreign nations among the several stages, and with the Indian tribes ” ; and their contracts made with the plaintiff to prosecute and collect claims alleged to be due them, cannot be enforced against them in a state court, without the consent of congress. The jurisdiction to determine such matters is lodged in the Interior Depart ment.</p>

EjectmeNt tried at Fall Term, 1882, of Haywood Superior Court, before Shepherd, J. In this action the plaintiffs seek to recover the possession of a tract of land, claiming title to the same under the last will of James R. Love, deceased.

Civil Action begun before a justice of the peace and tried on appeal at Spring Term, 1882, of Edgecombe Superior Court, before Bennett, J. This action was brought to recover the penalty under the act of 1874-75, ch. 240, §2, for failing to ship the cotton of the plaintiffs for more than five days after its delivery to defendant company.

Civil Action tried at Fall Term, 1881, of Gaston Superior Court, before Avery, J. This action is brought to impeach a sale of lands made by the defendant Hüffsteller, as administrator, of J. M. Roberts, deceased, to his widow, and to have the order of the probate court confirming the same set aside upon the ground of fraud.

<p>Counter-claim — Appeal—Discretion of Judge in allowing plea.</p> <p>1. In an action upon contract, though a lien upon property is involved, it is competent to the defendant to extinguish the debt due from him, by proof of counter-claim, and a verdict ascertaining the amount of the opposing demands is sufficient to sustain a judgment.</p> <p>2. The subject matter in contest cannot be changed by a removal of a cause t'o the appellate court.</p> <p>3. The plea of the statute of limitations, not relied on before a justice, cannot be set up on appeal in the superior court, without leave. Amendment of pleadings in such case is matter of discretion.</p>

Civil Action tried, upon a demurrer to the complaint, at Spring Term, 1881, >of Clay Superior Court, before Bennett, J. Judgment overruling the demurrer was rendered by the court, but by reason of matters bejmnd their control the defendants were prevented from taking their appeal in time, and at the October term, 1881, of this couit they made application for a writ of certiorari, and the same was granted and issued returnable on the first Monday of April 1882.

Civil Action tried-at Spring Term, 1882, of Mecklen-burg Superior Court, before Gudger, J. This action is for the conversion of a horse of the value of one hundred and twenty-five dollars, and of a saddle, blanket and bridle of the value of ten dollars.

Civil Action ' tried upon complaint and demurrer, at Fall Term, 1882, of Cumberland Superior Court, before Gilmer, J. A creditor’s suit being prosecuted i'n the probate court against the defendant, as administratrix of Murdock Mc-Kinnon, the present plaintiff presented his claim, and, it being disputed, filed a complaint to which an answer was put in, and the issues of law and fact, with the record out of which they arise, were transferred for trial before the judge in the…

Ejectment tried at Spring Term, 1882, of Rutherford Superior Court, before Qudger, J. The complaint asserts and the answer denies that the plaintiff is owner in fee, and entitled to the possession óf the land described and-withheld by the defendant; and thereupon an issue was submitted to the jury, with an inquiry of damages dependent upon the finding, in these words: Is plaintiff the owner and entitled to the possession of the laud mentioned in the complaint?

Civil Actios tried on complaint and demurrer at July Special Term, 1882, of Gastos Superior Court, before Gudger, J. The complaint consists of a series of counts or causes of action separately stated, and imputes to the defendant the utterance of slanderous words, both written and spoken, concerning the plaintiff, whereof the first and second charged the publication in the Gastonia Gazette of the libellous matter therein set out, and the others with verbal defamation.

Civil Action to recover damages for slander tried at Spring Term, 18S2, of Iredell Superior Court, before Eure, J. The slanderous words charged to have been spoken and published by the defendant concerning the plaintiff (who is called Betlie Sowers) and proved on the trial, were these : “ If Bet Sowers did not have a young one she missed a damn’d good chance,” and it is alleged in the complaint that he meant thereby to charge her with incontinency.

Ejectment tried at Spring Term, 1882, of Buncombe Superior Court, before Gilliam, J. The plaintiff claimed to be the owner in fee of the land in dispute, and the defendant, Lorena Ramsey, admits the same, except as to a portion embraced within the letters and figures as set out in the opinion of this court, to which portion she alleges title in herself, and claims under a continuous adverse possession under known and visible boundaries for more than forty years, and also…

<p>Ejectment tried at Spring Term, 1882, of Cherokee Superior Court, before Gilliam, J.</p> <p>The plaintiff appealed.</p>

Application of W. R. Young, Sheriff of Buncombe county, for instructions as to how he should apply certain moneys in his hands raised by sale of the lands of the defendant, Mont Patton, heard at Fall Term, 1882, of Buncombe Superior Court, before Shepherd, J. The facts agreed to by and between the parties interested are as follows-: The sheriff at the time of the sale of the defendant’s land on the . day of August, 1882, had in his hands the following executions : 1.

<p>Railways — Negligence—Removal of Cause to Federal Court</p> <p>1. The plaintiff sues the Western North Carolina railway company for damages for personal injuries alleged to have resulted from its erection of an “engineer-stake,” in the street of the town of Marshall, over which the plaintiff fell and broke his leg-; Held that the wrong complained of is the personal act of those engaged in running the line for the proposed road, and, in law, the act of those by whose authority the work was done, and that the plaintiff has the right to elect to sue one or more of them, alone.</p> <p>2. In the course of this proceeding, non-residents (assignees of the road) voluntarily become parties defendant, and ask for a removal of the ' case to the federal court; Held that their motion was properly refused,</p> <p>3. To entitle a party to such removal, under the act of congress, there must exist in the suit a separate and distinct cause of action, in respect to which all the necessary parties on one side are citizens of dif-perent states from those on the other.</p>

<p>Marriage — Deed—Survivorship—Married Women.</p> <p>1. The living together of a man and ■woman (formerly slaves) as husband and wife after the passage of the act of 18G6, validating mar’-riages between such persons, is conclusive evidence of the parties’ consent to the contract. State v. Whitford, 86 N. C., 636, approved.</p> <p>2. An. estate in fee to husband and wife ; Held that they take per tout, et non per my, and upon the death of either, the estate goes to the survivor.</p> <p>4. Married women havfe no greater estates, by operation of the constitution of 1868, than those conveyed by the terms of the deed under which they derive title ; nor are the properties and incidents belonging to estates changed by that instrument,</p>

Civil Action tried at Spring Term, 1882, of Cleaveland Superior Court, before Oudger, J. This cause was begun before a justice and taken by appeal to the superior court-, and comes here upon a single exception touching the admissibility of certain testimony offered by the defendant and excluded by the court.

Civil action tried at Spring Term, 1882, of Henderson Superior Court, before Gilliam, J. This action is brought to recover money received by the defendant H. T. Farmer, as clerk and master of the court of equity of Henderson county, the other defendants being the sureties on his official bond.

<p>Fences — Damages for breaking.</p> <p>1. A plaintiff, whose fence is insufficient (not five feet high as required by law), is not entitled to recover damages of the owner of a cow for breaking into plaintiff’s enclosure, even though the vicious habit of the animal is known to the owner.</p> <p>2. Proof that plaintiff’s fence is a “good ordinary” one, such as his neighbors have, does not dispense with the statutory obligation.</p>

Civil Action tried at July Spring Term, 1882, of Guil-ford Superior Court, before Gilmer, J. This action is brought to recover damages for personal injuries sustained by the feme plaintiff while travelling on a public highway, and alleged to have been caused by the defendant’s negligence.

Civil ActioN tried at Spring Term, 1882, of Rowan Superior Court, before Eure, J. The action is for damages, and was begun by the plaintiff on the 15th of August, 1876, in the superior court of Davidson county, and after the pleadings were put in, was removed for trial to the county of Rowan. The plaintiff having died, his administrator, J. P. Hannah, at spring term, 1881, came into court and was made a party plaintiff and allowed to prosecute the suit.

'Civil Action tried at Fall Term, 1882, of Durham Superior Court, before Shipp, J. Tbe action is to recover upon a note under seal in the sum of $500, executed by the defendant to the plaintiff on February 21st, 1878, and payable one day after date. The answer,'detailing at length the circumstances under which it was made, sets up as a defence that its consideration was for money won at unlawful gaming, and that the note by reason thereof is void.

<p>Evidence — Admissions.</p> <p>The admissions o£ a party are always evidence against him, and the fact that they are contained in the pleadings filed in the canse, does not affect its competency.</p>

Civil Action tried, on appeal from a Justice’s judgment, at July Special Term, 1882, of Vance Superior Court, before Graves, J. This action was to recover damages for injury to live stock, to wit, one cow of the value of twenty dollars. This action was tried before the justice under the provisions of section 10, chapter 16, of Battle’s Revisal.

<p>Civil Actios tried at Spring Term, 1882, of Mecklen-burg Superior Court, before Gudger, J.</p> <p>Defendants appealed.</p>

<p>Evidence of Market Values — Expert—Neivspapers.</p> <p>1. A witness cannot be permitted to testify to a knowledge of tbe market value of a commodity in a distant city (Boston), where his information is solely derived from reading the market reports in a newspaper published at a remote point (Charlotte).</p> <p>2 But it is competent for him to give an estimate and opinion of his own as to such values, provided he be qualified to speak as an expert.</p> <p>3. Market reports of such newspapers as the commercial world rely on, are admissible as evidence of market values.</p>

<p>Justice’s Judgment — ‘Evidence—Motion to issue Execution — ' Appeal.</p> <p>1. A transcript of a justice's judgment, sent up to be docketed in the superior court, need not contain more than the essential particulars constituting the Judgment; and where the justice authenticates the same by his certificate, it will be regarded as having been regularly taken, in the absence of proof to the contrary, even though the judgment itself was not signed by the justice,</p> <p>2 The fact that personal notice of a motion to issue execution was given to defendant, is determined affirmatively upon granting the order, where there is no proof that the same was not'aetually given, Ror is it necessary in such case that an affidavit should be made that the judgment is unsatisfied.-,</p> <p>3. There is no necessity for making a levy on the real property of an execution debtor. The judgment creates the lien.</p> <p>4. The irregular manner of preparing statement of case on appeal, condemned. It should only contain matter explanatory of exceptions taken.</p>

<p>Witness — Section 343 of the Code.</p> <p>A defendant administrator is incompetent under section 313 of the Code to testify in reference to a land transaction between the intestate and himself, in a suit against him by creditors of the estate to subject the land, which is alleged to have been fraudulently conveyed by the intestate to the.defendant.)</p>

In this case the summons issued on the 29th day of November 1875, and was returned endorsed as follows, “Service accepted this 3rd December 1875. — -0. A. Hall, per M. E. Garter, atto.” At spring term, 1876, the complaint was filed, and also what purported to be an answer for the defendant, prepared by Carter & Carter, attorneys, of which firm M. E. Carter was a member.

Civil Action, tried at Spring Term, 1882, of Richmond Superior Court, before Shipp, J. The plaintiff being indebted to the defendants in the sum of $367.15 by note executed and bearing date on October 30th, 1874, and payable at twelve months, on the same day with one Randolph McDonald (whose relations to the matter are unexplained), conveyed by mortgage to the defendants the tract of land described in the complaint, with condition that the deed should be void if the note was…

Ejectment tried at January Special Term,1882, of Davidson Superior Court, by Seymour, J. This is an action for the recovery of land begun in 1881. Both parties claim under Nancy Trotter — the plaintiffs under a conveyance from her heirs since her death, and the defendants under mesne conveyances from Philip Hendrick, to whom she conveyed in 1826.

This was a motion for leave to issue execution made before the clerk of the superior court of Macon county on the 29tli day of August, 1879, notice thereof issuing to the defendant on the same dajn • The judgment was obtained in the superior court of said county on the 15th day of April, 1887, and was docketed, on the 26th day of December, 1868. Divers executions were issued, the lust one in April, 1877.

Civil AgtioN upon a constable’s bond, tried at Spring Term, 1882, of Mecklenburg Superior Court, before Qud-ger, J. This action is brought on the official bond, given in 1869 by J. N. Caldwell, as constable, with the defendants, E. P. Cochrane and J. S. Means, as his sureties. The said Caldwell and Means are both dead, and the defendants, H. S. Pharr and J. D. Means, are their executors.

<p>Vendor and Vendee — Contract of Purchase — Judgment—Lap-page— Constructive Possession.</p> <p>3. Vendee, in contract for purchase of land, executed notes to vendor who endorsed them to another, and, upon judgment recovered against him alone, paid the same and had the notes reassigned to him (the vendor), and then, he transferred them to the plaintiff who sues the ven_ dee to recover the amount; Held that the action is properly brought.</p> <p>2. The judgment on the notes against the endorser, is a judgment on the contract of endorsement, and the obligation under the contract of purchase remains in full force against the vendee debtor.</p> <p>3. Where the deeds of A and B cover the territory in dispute (as repre-resented in diagram in Logan v. Fitzgerald, ante, 308) and B is in actual possession, under color of title, of a part of the lappage enclosed under fence, he is constructively in possession of the unenclosed part; but where the adverse claimant enters upon the part outside of the enclosure, under a claim of title, and exercises repeated acts of ownership over it, for the purposes for which the land is susceptible, the continuity of such constructive possession is destroyed, and B’s claim to the unenclosed part, defeated.</p>

<p>Petition to rehear, decided at October Term, 1882, of 'The Supreme Court.</p>

Application of plaintiff to be relieved from payment of certain taxes, heard at Spring' Term, 1882, of Wake Superior Court, before Bennett, J. The defendant commissioners in revising and completing the tax lists in their county for the year, 1881, pursuant to the directions of the act to provide for the levying and collecting of taxes (Acts 1881, ch. 117, § 21) without notice to the plaintiff company, inserted in the list, as proper subjects of taxation, ten thousand shares…

<p>Special Proceeding commenced in the Probate Court, for an account of administration, &c., heard on appeal at Spring Term, 1882, of Rowan Superior Court, before Eure, J.</p> <p>In the month of April, 1871, were issued- several executions to the sheriff of Rowan on judgments'theretofore rendered in the superior court in behalf of several creditors against the debtor, Burton Craig, under which certain lands of his were assigned and set apart as a homestead, and exempt from execution under the provisions of the statute. Bat. Rev., ch. 65. He remained in the occupation and use of the land so assigned, until his death in 1875, and his surviving widow thereafter, until her own demise in July, 1881.</p> <p>No administration was granted on the estate of the intestate debtor, until October, 1881, when letters were issued to the defendent M. L. Holmes. In December following, the defendant instituted proceedings in the probate court, for an order of sale of said lands for assets to be used in payment of debts, under which in March, 1882, they were sold for the sum of $3,794, and this sum, less the costs of administration and sale, the defendant holds to be applied to the creditors according to their several legal preferences in the order of payment.</p> <p>The present action on behalf of all of the intestate’s creditors has for its object the adjustment of priorities among the contesting claimants, the proper distribution of the fund among the parties as they may be entitled, and the settlement of the estate.</p> <p>The debts, all contracted at a date anterior to January, 1868, were reduced to judgment, and as we understand the facts, docketed during the life-time of the debtor in the superior court of Rowan, at the respective dates assigned to each in the finding and judgment of the probate judge. Of the whole number, whose amounts, times of docketing, and names of creditors, are ascertained and stated by him, five were docketed at fall term, 1869; two, at spring term, 1870; three at fall term, 1870; one at spring term, 1871; two at spring term, 1872; one at spring term, 1873, and the remaining two, on transcripts of judgments before a justice of the peace, intermediate between spring and fall terms, 1871, the one on June 15th, the other on July 22nd.</p> <p>The sheriff under four executions issued at the instance of R. J. Holmes, John A. Long, W. H. and C. Motts and J. C. Foard, the name of the last alone appearing in the list of judgment creditors claiming a right to share in the fund, but whether it be upon the same debt does not .appear, raised by a sale of other, property of the debtor not covered by his exemption, made in the spring of 1881, the sum of $2,441, which the'probate judge declares to be, in law, a satisfaction pro tanto of those debts, and he further declares that other payments on the judgments held by the said Holmes and Foard have discharged them altogether.</p> <p>The probate judge rules upon these facts, that all but the three judgments last docketed in time, are to be excluded, because more than ten year's from the date of docketing each had elapsed before the present suit was begun on March 16th, 1882, and the liens under the statute thus extinguished; and directed the fund to be applied to the payment in full of the judgments of J. M. Coffin to the use of the defendant and of E. Mauney executor of David Mc-Mackin, of spring term, 1872, and the residue to the judgment of E. P. Hall and wife of spring term, 1873.</p> <p>Upon an appeal to the superior court the ruling of the probate judge in the appropriation of the fund was reversed, and His Honor declared and adjudged that the judgment creditors mentioned were severally entitled to be paid in the order of time, and according to the several priorities of the docketing of their respective judgments, until by this . appropriation the fund left in the defendant’s hands, after ■payment of costs and charges of administration, is exhausted. From this judgment the plaintiff, E. Mauney, appealed.</p>

'Special Pkoceeding tried at Spring Term, 1882, of Randolph Superior Court, before Graves, J. On the 29th of December, 1879, certain creditors of the estate of Mumford S. Harris, deceased, commenced a special proceeding in the nature of a creditor’s bill against the defendant Loflin, as his administrator, in the probate court of Randolph county.

<p>Executors and Administrators — Confederate Money.</p> <p>1. An administrator, making a partial settlement with the next oí kin, and retaining in his hands certain interest-bearing notes for the purpose of meeting claims against the estate then in litigation, provided they he declared valid, and who fails to keep an account of the time when the notes were collected'and the amount of interest received, will be charged with interest during the whole time.</p> <p>2, The case of Parvis v. JacJcson, 69 N. C., 474, in reference to payment of Confederate money into the clerk’s office, approved.</p>

<p>Civil ActioN tried at November Special Term, 1881, of Halifax Superior Court, before Gilmer, J.</p> <p>This action is brought for the recovery of a sum of money due upon a bond, and the only question is as to the right of the plaintiff to maintain the action.</p> <p>The facts are: Eliza A. Phillips died prior to the year 1860, leaving a will of which one J. M. S. Rogers was appointed and qualified as the executor. On the 22d day of May, 1860, he sold the personalty belonging to the-estate of his testatrix upon a credit of six months, and one Virginia A. Johnson, who as a legatee under her will was entitled to one-ninth of her estate, became the purchaser of a portion of it, to the amount of two hundred and ninety TV<r dollars-, and gave the bond sued on therefor, with one John J. Long as her surety — the same being made papable to Rogers as executor.</p> <p>Both Mrs. Johnson and her surety, Long, are dead, and the defendant is the administrator of each of them. The executor, J. M. S. Rogers, died iu 1874, and the plaintiff is his administrator. In 1876, James W. Grant qualified as the administrator de bonis non upon the estate of Eliza A. Phillips, and soon thereafter commenced an action against the plaintiff, as administrator of J. M. S. Rogers, for an account and settlement of the estate of Eliza A. Phillips,- and at fall term, 1878, recovered judgment for the sum of $5,182.04, but no part of the same has ever been paid.</p> <p>In taking the account in said action the plaintiff, as the administrator of said J. M.J3. Rogers, was charged with the full amount of the proceeds of all the personalty sold, including that portion sold to Mrs. Johnson, and for which the bond sued on was given.</p> <p>The said Grant, as the administrator de bonis non, after-wards brought a suit in the name of himself and all other creditors of J. M. R. Rogers against his administrator and heirs at law, seeking to subject his real estate, as well as his personal effects, to the payment of his debts, which action is still pending.</p> <p>No part of the legacy to Mrs. Johnson has ever been paid.</p> <p>Upon the foregoing facts the judge below was of the opin-that the plaintiff could not maintain the action, and accordingly gave judgment for the defendant, and thereupon the plaintiff appealed.</p>

Civil ActioN tried at December Special Term, 1881, of Hertford Superior Court, before Graves, J. The action was brought by the plaintiff, as administratrix de bonis non of Henry Vaughan, against the defendant as a surety on the administration bond of Benjamin A. Spiers, the former administrator of said Henry Vaughan, to recover the amount of unadministered assets remaining in his hands after his death. The bond of Spiers was executed on the 2Gth day of October, 1866.

Civil Action tried at Fall Term, 1881,, of Burks Superior Court, before Seymour, J. ■ When this cause was before the court at the last term (86 N. C., 310) it was remanded in order that it might be certainly ascertained, whether the land which is now the subject of controversy had been embraced in the plaintiff’s petition for dower, and had been treated by the parties and recognized by the court as belonging to the estate of her late husband, whereby she might be estopped…

<p>Civil Action for construction of a will tried at Fall Term, 1882, of Cumberland Superior Court, before Qilmer, J.</p> <p>Mary.R. McDiarmid on July 25th, 1876, made her will, disposing of her estate and nominating no executor, which after her decease in April, 1882, was admitted to probate, and letters of administration with the will annexed issued to the plaintiff. The will is as follows:</p> <p>“I, Mary R. McDiarmid, being sound in mind, my last will and testament.</p> <p>My bank stock, my county bonds I leave to my following heirs: Bank stock $5,000 — $3,000 of it I leave to my mother, Ann Eliza McDiarmid; $800 to my nephew, Marshall McDiarmid Williams; $200 to each of my sister, Mrs, Ann V. Huske’s children. County bonds $2,500 — $500 to each of my brothers, Mr. A. K. McDiarmid and W. J. Mc-Diarmid ; $500 to my niece, L. M. Robinson : $500 to my nephew, H. McD. Robinson; $500 to my mother, Mrs. Ann Eliza McDiarmid. My interest in the Moore county land, I leave to my niece L. M. Robinson and the children of my sister Mrs. Ann V. Huske; the remaining portion I leave to my mother to be disposed of as I have already directed.”</p> <p>(Signed,) Mary R. McDiarmid, July 25th, 1876.</p> <p>The relations of the several beneficiaries mentioned in the will are these:</p> <p>Ann E. McDiarmid is the mother; A. K. McDiarmid and W. J. McDiarmid, the brothers of the testatrix. The plaintiff, H. McD. Robinson, and Lucy M., wife of John Williams, and who is mentioned in the will by her maiden name, are the children of a deceased sister, C. C. Robinson, who died before the making of the will.</p> <p>Marshall McD. Williams is the son of another sister who was also deceased at the date of the will.</p> <p>Clem, Joseph, D. McD., Herbert, Louise, Cattie and Sadie Hnske are the surviving children of Ann V. Huske, a sister of the testatrix, who died during the interval between the execution of the will and her death, and of the children the two last named were also born after the date of the will, and prior to the death of the testatrix.</p> <p>Another child, Clay ITuslce', was living when the will was made, but died before the testatrix.</p> <p>The devisees and legatees mentioned are the next of kin, and would be entitled to the personal estate of the deceased in case of intestacy, and (except the mother) heirs at law.</p> <p>The testatrix owned in July, 1876, fifty shares of stock in the Fayetteville National Bank of the par value of $100, each, and $2,500 in Cumberland county bonds.</p> <p>In September, 1880, the testatrix at the instance of her brothers and for their accommodation, by the agency of W. J. McDiarmid, disposed of all the bank stock for $4,500, its fair market value at the time, and likewise $1,500 of the county bonds for $1,200, which aggregate sum was loaned to them, and their note bearing eight per cent, interest executed to her therefor, the interest on which for one year was paid to her. Since her decease the note has been delivered to the plaintiff, as assets of the estate.^</p> <p>In April, 1882, before the death of the testatrix (as we infer from the case, though the fact is not distinctly stated) the remaining $1,000 in county bonds was also sold for $840 ; and that sum received credited to her on the books of her said brothers.</p> <p>The interest in the Moore county lands is devised under the will of D. McDiarmid, the clause relating to which is in these words:</p> <p>“ It is my will and desire that my interest in the lands in Moore county, being one half of 5,000 acres, be sold, when it will be advisable to sell, and the proceeds of such sale be equally divided among my daughters, C. E. Robinson and M. R. McDiarmid, and my sons Archibald and W. J. Me-Diarmid, and my grandsons M. McD. Williams and Daniel McD. Huske, and their heirs.”</p> <p>The testatrix also owned a moiety in the remainder of the land, known as the “ McDiarmid homestead,” consisting of about 1,250 acres — the homestead and about 1,250 acres having been devised in a codicil to the will of said D. Mc-Diarmid to A. E. McDiarmid for life, with remainder to said C. E. Robinson and the testatrix, accompanied with a wish that it should continue “ to be a home for such of the testator’s family as had none elsewhere.”</p> <p>The testatrix held another note of her brothers, A. K. and W. J. McDiarmid, amounting in principal and interest to |2,371.32, and other personal property worth $150, and the debts and liabilities to be provided for are estimated to be $1,000.</p> <p>There are not found any directions in writing to the, mother of the testatrix in regard to the disposal of the property included in the last clause of her will, and the said Ann E. McDiarmid, now advanced in years, in declining health and feeble memory, does not remember accurately or definitely the instructions given her in reference thereto.</p> <p>The present action is instituted by the administrator against the beneficiaries under the will, for advice and direction in the execution of its imposed trusts, upon the facts stated, contained in the complaint and assented to by the defendants.</p> <p>The inquiries with the response of the judge to each in the court below, are as follows:</p> <p>1. Did the testator addeem the bequests of bank stock and county bonds by the sale in her life-time, or do the legatees share in the money fund as substituted for them and in like proportions?</p> <p>The court declares in answer to the inquiry that the legacies are not addeemed, and the proceeds of the sale must be similarly distributed among the legatees.</p> <p>2. Does the testatrix direct her interest in the Moore county land to be divided per capita between her niece L.; M. Robinson (now Williams) and the children of her sister Ann V. Huske, or in moieties — one half to her named niece and the other half to the children of Ann V. Huske collectively.</p> <p>The court rules that the division must be pet capita between the legatee named and such of the children of Ann V. Huske as were alive at the death of the testatrix, ¿ach of said children taking an equal share with her.</p> <p>3. The third inquiry, whether Clay Huske, who died before the testatrix, takes any interest under the bequest which is transmitted to his personal representative is answered in the preceding response.</p> <p>4. Is Ann E. McDiarmid entitled to take and hold the property included in the words “the remaining portion ” used in the concluding clause, to her own use?</p> <p>This interrogatory is answered in the affirmative.</p> <p>5. What property is embraced in the words, “the remaining portion ” and what is the legal effect of the superadded words “ to be disposed of as I have already directed her.”</p> <p>The court declares that the expression used, “the remaining portion,” comprises all the real and personal estate of the testatrix not otherwise disposed of in the will, to-wit, the remainder in the homestead and all lapsed or void legacies, and the legatee holds the same for her own use, subject, nevertheless, to any positive directions which may hereafter be made to appear to have been given to the said Ann E.</p> <p>From the rulings of the court in response to interrogatories numbered 3, 4 and 5, the defendants John Williams and wife, and Marshall McD. Williams, appeal; and from the ruling in response to the 2d interrogatory, the defendants John Williams and wdfe alone appeal.</p>

<p>Wills — Executors and Administrators.</p> <p>1. The testator, whose will was proved and administration taken out prior to the act o£ 1SG9, devised to the children oí his deceased daughter certain lands, and provided if either o£ them should die without issue, then to go to the survivors and their heirs ; Reid that the dev-isees take a fee simple estate in common, defeasible upon the death of either in the testator’s lifetime, without a child ; in which event, his or- her interest goes to the survivors.</p> <p>2. An administrator cannot sell lands for assets to pay debts, which were sold by a devisee more than two years after his qualification ; nor such as were sold by the devisee within the two years, and sold after that time by his vendee to a purchaser for value and without notice.</p>

<p>Wills — Evidence.</p> <p>1. On trial of an. issue clevisavit vel non, the caveators alleged that tiie wife of deceased exerted undue influence over him, and thereby procured the making of the will in tho sole interest of herself and her children ; Held competent to show that no foundation existed for the exclusion of one class of testator’s children from participation in the estate.</p> <p>2. And evidence of a conversation between the wife and a witness after the making of the will and on the day of testator’s death, is also competent to show a continued influence over him up to his death; nor can her subsequent dissent to tjie will and renunciation as executrix have the effect to deprive the caveators oí the benefit of this testimony.</p> <p>3. The other exceptions to the evidence in this case tending to show undue influence, are untenable.</p>

<p>Wills — Judge's Charge — Evidence—Practice.</p> <p>.1, Where no response appears in the case as being made to an alleged improper question put to a witness, it does not constitute ground oí exception, which can only be taken to the evidence elicited by the imyroper question.</p> <p>2. Upou trial o£ an issue devisavit vel non, It was held no error to allow a question to he put to a witness, as to whether in his opinion, the testator had mind enough to enable him to have a reasonable judgment 'oí the kind and value of the property he proposed to will,</p> <p>3. And a charge to the jury, that if the testator had, at the time of executing the will, sufficient mental capacity to understand the nature of the property disposed of, and liow and to whom he was giving it, then he was capable of making a will, is in harmony with the decisions upon the subject.</p> <p>4. Evidence of kindly relations existing, between the testator and members of bis family, is admissible to show that the unnatural exclusion of a legatee (grandson) from a fair sitare of the estate, resulted from alleged mental incapacity; for although such evidence may not be entitled to much weight upon the question of sanity, it is not for that reason incompetent.</p> <p>5. An exception to the entire charge óf a judge to the jury, without specifically pointing out the alleged error, will not be entertained.</p>

<p>Issue of devisavit ml non tried at January Special Term, 1882, of Mecklenburg Superior Court, before Bennett, J.</p> <p>Judgment for plaintiffs, appeal by defendants.</p>

Civil Action for construction of a will tried at Spring Term, 1882, of Rutherford Superior Court, before Gudger, J. J. P. Mauney died in the year.1864 or 1865, having previously made his will in which are contained the following clauses; “ I give and bequeath to my beloved wife, Charlotte Mauney, twelve hundred dollars in money,” and slaves and other enumerated-articles of personal property not necessary to be set out in detail; and the testator adds, “ I also give her the…

<p> Excusable Neglect. </p> <p>The ruling in Orie.lv. Vernon, 65 N. C., 76, in reference to neglect of attorney, approved.</p>

<p>Amendments — Appeal.</p> <p>'•The motions of defendant in this case involve matters addressed to the discretion of the court, with regard to amendments, and the rulings thereon are not tlte subject of appeal.</p>

<p>Reference — Appeal.</p> <p>1. A compulsory reference may be ordered where the taking of an account shall be necessary for the information of the court before judgment.</p> <p>2. The order appealed from in this ease does not effect a “substantial right,” and the appeal is therefore dismissed.</p>

<p>Practice— Certiorari.</p> <p>1. The appellant must assign and show error in the ruling of the court below, or the judgment will he affirmed.</p> <p>2. An application for certiorari must be made before the ease is gone into upon the merits.</p>

<p> Practice. </p> <p>This cause is remanded at appellant's costs, for the reason that an appeal was attempted to be taken before the rendition of judgment.</p>

INDICTMENT for assault with intent to commit rape, tried at Fall Term, 1882, of Pitt Superior Court, before MacRae, J. On the trial the state introduced the proscutrix as a witness, and rested its case; and the defendant then introduced one Forbes who testified that he was acquainted with the general .character of the prosecutrix, and that it was bad ; but on cross-examination the witness stated he had never heard anything against her reputation for truth.

<p>Assault and Battery — Evidenee—Maim-—Judge’s Charge,</p> <p>1. In assault and battery, evidenee of previous threats of personal vio* lenee against the defendant by the prosecutor, is inadmissible — State v. Norton, 82 M. C , 628, approved.</p> <p>2, Upon trialfor an indictment for maim, it appeared that while the parties were engaged in|a fight, the defendant bit off a part of one of prosecutor’s ears, and the judge charged it was incumbent on defendantto satisfy the jury that the act was done in self-defence; Held no error.</p> <p>3.Held further: It was not error to refuse to charge that, if the severance of the ear while in defendant’s teeth resulted from the violent manner in which the parties were separated, it would not be a maim done “on purpose and with intent to disfigure’’ — for this the law presumes when the act is proved.</p>

INDICTMENT for murder (removed from Alexander) tried at Spring Term, 1882, of Catawba Superior Court, before Eure, J. The prisoner is… Held: the said Caroline Thompson, in and upon the head of her, the said Caroline Thompson, then and there feloniously, wilfully and of his malice aforethought did strike and beat, giving to her the said Caroline Thompson with the axe aforesaid in and upon the head of her, the said Caroline Thompson, several mortal wounds and bruises, of…

Indictment for carrying a pistol concealed, in. violation of the act of 1879, ch. 127, tried at Spring Term, 1881, of BUNCOMBE Superior Court, before Bennett, J. On the trial the defendant’s .counsel requested the court to charge the jury that if they believed the defendant carried the pistol only for the purpose of hunting with it, and that he carried it openly and not concealed on his person for the purpose of hunting merely, he could not be convicted.

INDICTMENT for carrying a pistol concealed, in violation of the act of 1879, ch. 127, tried at Fall Term, 1882, of Buncombe Superior Court, before Shepherd, J. The jury returned a special” verdict, in which, after finding that the defendant was off his own premises, and that he did not belong to any of the excepted classes of officers, they say: That within two years next before the finding of the indictment against him, the defendant, while in the streets of Asheville, had…

Indictment for false pretence, tried at October Term, 1882, of New Hanover Criminal Court, before Meares, J. The defendant was tried upon a charge of obtaining goods under false pretenses. The proofs were, that the defendant came to the city of Wilmington, a stranger, and soon thereafter made the acquaintance of the prosecutor, one Amey, to whom he represented that he had come directly from New York by railway, but that a brother of his was coming by water.

<p>Indictment for forcible trespass tried at Spring Term, 1882, of Union Superior Court, before Gudger, J.</p> <p>The charge made against the defendants, Laney and others, is, that with force and arms, violently, forcibly, and with a strong hand, they did break and enter the premises of one Gay, there situate and being in his possession, and he being then and there actually present and forbidding them so to do.</p> <p>The proof was that during year 1881, the prosecutor and the defendant, Laney, had cultivated distinct portions of a field surrounded by .a common enclosure — the prosecutor planting corn, and the defendant, cotton.</p> <p>In consequence of certain information received, the prosecutor went to the field in September of that year, and found the defendants, Frank Laney, (son of the defendant A. A. Laney) and Carlock (his servant) cutting down the corn with hoes. Pie forbade them, but they continued, saying that they had been instructed to cut it by the other defendant. The prosecutor thereupon left, making no effort to put them out of his field, because he did not wish to be involved in a breach of the; peace, and the defendants continued to cut the corn.</p> <p>There was a verdict of guilty and the defendants appealed from the judgment pronounced.</p>

<p>INDictment for fornication and adultery, tried at Spring Term, 1882, of Nash Superior Court, before Gilmer, J.</p>

Indictment for misdemeanor in removing crop without leave, tried at Fall Term, 1882, of Transylvania Superior Court, before Shepherd, J. The indictment upon which the defendant was tried is as follows; The jurors for the state present that on the 24th of April in the year of our Lord one thousand eight hundred and eighty-one, at and in the county of Transylvania aforesaid, by contract between them, one W. S. Ashworth demised to J. R. Walker, late of said county, for…

<p>Judge’s Charge-Larceny — Recent Possession.</p> <p>1. The court in its charge did not advert to the evidence elicited on cross-examination, but told the jury “to base their verdict upon all the evidence;” Held no error. It is the duty of counsel.in such case, if evidence important to the defence has been overlooked, then to call the judge’s attention to it.</p> <p>2. Defendant was charged with stealing tobacco and silver money on Saturday, and the proof was that the store of the prosecutor had been entered, and tobacco like his (together with the identified silver money) was found in defendant’s possession on the following Monday ; Held there was some evidence of the larceny of the tobacco.</p> <p>4, Whether the rule of presumption from recent possession applies in a ease where money is alleged to have been stolen— Quaere,</p>

Indictment for murder, removed from Union county and tried at Spring Term, 1882, of Mkcklenbukg- Superior Court, before Gudger, J. The material portion of the- evidence offered on the part of the state is as follows : On the 23rd of September, 1880, the deceased (Spencer Phillips) and some other persons-came to the town of Monroe in Union county, late in the evening and drove into Stewart’s lot.

Indictmekt for larceny tried at Fall Term, 1882, of Dun-HAM Superior Court, before Shipp, J. The defendant, together with one Thomas, was indicted for stealing wheat, the property of one Cannady. The wheat was grown upon the land of the prosecutor, with whom the said Thomas worked as a cropper, and was to have an interest in the crop.

IndictMent for retailing tried at Fall Term, 1882, of Catawba Superior Court, before Avery, J. The defendant was charged with retailing spirituous liquors without license. It was admitted that^he sold whiskey in quantities less than a quart, in the town of Hickory, county of-Catawba, at divers times between October, 1881, and the last of April, 1882.

<p>IndictMENT for murder, tried at Spring Term, 1882, of Wayne Superior Court, before Gilmer, J.</p> <p>Verdict — guilty of manslaughter, judgment, appeal by .prisoner.</p>

At spring term, 1881, an indictment for perjury was preferred against one Alfred Cantwell, upon which John Owens, the defendant of record in this appeal, was marked as the prosecutor, at the time and before the finding of the bill.

<p>Towns and Cities — Public Place.</p> <p>City ordinance against profane swearing and public drunkenness; Held, to constitute a misdemeanor for á violation of this ordinance, it is not necessary that the offences should be committed in a “public place.” One may be publicly drunk in a private plaee.</p>

<p>Transcript of Record — Power of Superior Court.</p> <p>Omissions of material matter in the record of a trial for murder will be-supplied by certiorari, and the superior court has the power to order-such corrections as are necessary to make the record truthful.</p>

<p> Confessions. </p> <p>The decision in State v. Andrew, Phil., 205, and State v. S/ter, 85 ST. C., 585, relating to confessions of defendants as evidence, approved.</p>