Volume 88 — North Carolina Reports

<p> Appeal. </p> <p>The court will not entertain appeals brought up in a fragmentary manner.</p>

MOTION to vacate an order of arrest heard at Fall Term, 1881, of Richmond Superior Court, before Graves, J. The action is brought against the defendants, McLean & Leach, partners in trade, and the plaintiff alleges that certain executions were delivered to him, as sheriff, which he levied upon several hundred pounds of seed cotton, as the property of the judgment debtor, and took the same into his possession; that after'the levy, the defendants wrongfully and unlawfully took…

MOTION to vacate an order of attachment, made in an action pending in Mecklenburg- Superior Court, heard at Chambers on the 3lst of January, 1883, before Shipp, J. His Honor vacated the order upon the ground that the affidavit does not state a cause of action authorizing an attachment, and the jjlaintiff appealed.

MotioN beard at Spring Term, 1883, of Mecklenburg Superior Court, before MaoRae., J. This was a motion for judgment and execution against the defendants upon an appeal bond. Motion allowed and defendants appealed.

MOTION to amerce the clerk, heard at Fall Term, 1882, of Caswell Superior Court, before Shipp, J. At fall term, 1881, the plaintiff obtained judgment nisi against the defendant for the penalty of one hundred dollars, for not issuing execution on a judgment theretofore obtained by him in the superior court, in pursuance of the requirements of the act of 1850. Bat. Rev., ch. 44, § 28.

MotioN to dissolve an injunction, in an action pending in Rowan Superior Court, heard at Chambers in Lexington on the 15th of March, 1883, before Craves, J. In 1875 the defendants obtained two judgments against the plaintiffs before a justice of the peace, one for the sum of $73.49 and costs, upon a claim assigned to them by J. & D. Trexler, and the other for the sum of $39.45 and costs, upon a claim assigned to them by one Hodge.

Civil ActioN tried at Fall Term, 1882, of Beaufort Superior Court, before Gilliam, J. This action is prosecuted against the defendant company to recover for losses sustained by reason of negligence and delay in transporting and delivering to the plaintiff at Washington, N. C., certain goods shipped by a connecting line from Baltimore.

CrviL Action for claim and deliver}', tried at Spring Term, 1881, of Reaufout Superior Court, before MeKoy, J. The plaintiff alleged title to a certain horse, which was in possession of and detained by the defendant. The exception taken by the plaintiff on the trial is to the charge of the judge, which is set out in the opinion of this court. There was a verdict for the defendant, and the plaintiff appealed from the judgment rendered thereon.

<p> Habeas Corpus. </p> <p>A party, set at large by writ of habeas corpus, upon the ground that the judgment of imprisonment was void for want of jurisdiction in the court, may be again arrested for the same cause upon legal process of a court having jurisdiction — either to try or bind over.</p>

Civil ACTION tried upon complaint and demurrer at Fall Term, 1882, of HENDERSON Superior Court, before Shepherd, J. The complaint alleges that the plaintiffs, Mitchel C. King, Andrew Johnstone, the defendant Farmer, and others, on the 29th day of September, 1847, formed and entered into an association, or joint stock company, for the purpose of establishing a hotel in the county of Henderson, and with that view to purchase a tract of land in said county, as a suitable site…

<p>Pleading — Trespass and Trovei — Judge’s Charge.</p> <p>1. A complaint alleging that defendant seized plaintiff’s goods and appropriated them to his own use, charges both a trespass and conversion, and constitutes a canse of action under the present system of procedure.</p> <p>2. Where, in such case, the judge charged that if the jury should find that the property was taken from the possession of the plaintiff by force and against his will, he would be entitled to recover some damage, although he had no title; Held, no error.</p>

<p>Civil ActioN tried at Spring Term, 1882, of RobesoN Superior Court, before Shipp, J.</p>

<p>Parent and, Child — Jurisdiction.</p> <p>1. The jurisdiction of clerks of the superior -court, in the appointment of guardians of infants, &c., does not extend to a case where the petitioner asks for the custody of a child who had been placed by its mother under the control of another.</p> <p>2. The court intimate that a mother cannot make a disposition of her child, so as to confer upon another the right to its custody and control.</p> <p>3. The correctness of the decision in Jordan v. Coffield, 70 N. O., 110, doubted.</p>

<p>MOTION to sot aside a judgment heard at Fall Term, 1882, of SAMPSON Superior Court, before MaeRae, J.</p> <p>The plaintiff began an action in 1871, in the superior court of Sampson county, against John Bullard, for the recovery of a tract of land. At the return term he answered, and the cause was continued from time to time until spring term, 1874, when an order was made directing Marcus, Irene, Virginia, Lewis and Thomas Bullard, children of the said John, to be made parties defendant, with leave to file answer.</p> <p>At spring term, 1875, judgment was rendered that the plaintiffs recover the land of the defendants, which upon its face purported to have been rendered for want of an answer-as to all the defendants, except the said John, and as to him there was a verdict finding that he was in possession of the land and unlawfully withheld the same.</p> <p>Subsequently, John Bullard died, and in 1879 his said children gave notice to the plaintiffs of a motion to set aside the judgment, which motion was heard at fall term, 1882, when, after considering the affidavits and counter-affidavits filed by the parties and examining the dockets, the 'judge below found the facts to be as follows:</p> <p>At the time the children of John Bullard were directed to be made parties, and also at the time the judgment was rendered against them, they were all infants and without any general guardian. They were not served, with any process in the cause, nor was any guardian ad litem appointed for them, or any answer filed for them. Their names nowhere appeared as defendants upon the docket of the court, and no attorney professed specially to represent them, though they were in fact represented by the attorney of their father, at whose instance alone they were ordered to be made parties. After the judgment, and before the notice to set it aside was issued, the plaintiffs were put in possession of the laud under a writ of possession issued on the judgment, and under an execution issued thereon the costs of the action and a portion of the damages assessed by the jury, have been collected from the father and his sureties on the bond given to defend the action.</p> <p>Upon the foregoing facts the judge below directed the judgment to be set aside as to the infant defendants, leaving it to stand as to John Bullard, and from this ruling the plaintiffs appeal.</p>

<p>Civil ActioN tried, upon exceptions to a referee’s report, at Fall Term, 1882, of GRANVILLE Superior Court, before Shipp, J.</p> <p>Plaintiff appealed.</p>

<p>Civil ACTION for divorce tried at July Special Term, 1882, of GastoN Superior Court, before Gudger, J.</p> <p>The plaintiff brings this action against his wife, seeking to be divorced a vinculo matrimonii, and alleges that he intermarried with the defendant in Gaston county in August, 1857 — both being then and at all times since residents of said county; that about the 15th of July, 1872, the defendant was guilty of adultery with one Michael Rhodes, and was before and after that tiriie guilty of repeated acts of adultery with said Rhodes and other persons in said county; that plaintiff then separated himself from her, and has had no' intercourse with her since that time, and therefore he prays to be divorced.</p> <p>The statement of the case on appeal is as follows: - “After the jury were empannelled, the plaintiff showed forth in evidence that the parties had intermarried in 1857, and had lived together as man and wife in Gaston county till the year 1872, when, for the causes hereinafter set out and also shown forth in evidence, the plaintiff separated from his wife, and has not lived with her since. For three months prior to such separation, the plaintiff had been absent at work in South Carolina, and when he returned, a short while before the separation, he was a sound and healthy man. When he returned, his wife was suffering with what appeared to be some affection of the skin, and shortly thereafter and in the time usual for the communication, of said disease, the plaintiff began to be similarly affected. Upon his first returning, he consulted a physician as to the character of his wife’s affection, and was told that it was merely a disease of the skin; but when he was himself affected, he advised with another physician, and was informed that it was syphilis. Both he and his wife had syphilis,, he having contracted the same from her, and from the effects of which he had never recovered, even up to the time of the trial.”</p> <p>“The plaintiff then proposed to show that, when he returned and told his wife what the physician pronounced her disorder to be, she declared that Michael Rhodes, the party charged in the complaint, had given her the disease, and to show that she had made similar statements, both before and after their separation; but this evidence was excluded by the court.”</p> <p>“The plaintiff then offered evidence going to show that, during his absence in South Carolina, the said Rhodes resided within a short distance of the defendant’s house, and then proposed to show that at that time he (Rhodes) was laboring under the same disease; but this evidence was also excluded, upon the ground that no acts of intimacy between the defendant and Rhodes had been shown.”</p> <p>The plaintiff thereupon submitted to a nonsuit and appealed.</p>

PETITION for divorce and alimony heard at Spring Term, 1882, of UNION Superior Court, before Gudger, J. The allegations in the petition, deemed material to the inquiry before the court, are as follows; The parties were married on the 15th of August, 1876.

.. PROCEEDING heard at Rail Term, 1882, of New Hanover Superior Court, before MacRae, J. The proceeding is against the defendants and several others, doing business as insurance agents in the city of Wilmington. The city ordinance imposes a license tax for the privilege of carrying on such business within its corporate limits.

PROCEEDING heard at January Special Term, 1883, of FRANK-lin Superior Court, before Philips, J. The plaintiff was register of deeds of Franklin county, and ex officio clerk to the board of commissioners, and as such presented a claim to the board for issuing orders on the treasurer of the county for the payment of money, to-wit: fifteen cents for each order, as provided in Battle's Revisal, ch. 105, § 25, subdivision 5, in addition to ten cents for recording each order.

<p> Amendment of Pleading. </p> <p>Where pleadings are amended by permitting a defendant to make a case against his co-defendants, involving a change of the subject matter of the original suit, it amounts to bringing a new action on his part, and the defendants cannot be restricted in their pleas, but may set up any legal defence, as a matter of right.</p>

MOTION to. dismiss a recordari heard at July Special Term, 1882, of Vance Superior Court, before Graves, J. On the 12th day of December, 1881, the defendant moved for, and obtained from the superior court of Vahee county, a writ of recordari to bring up a certain proceeding theretofore had before a justice of the peace and two freeholders of the county, under the act providing a remedy for the owner of stock killed by a l’ailroad.

<p>Appeal— Certiorari.</p> <p>A certiorari will not be granted, first, where the agreement to waive the code-rule of making up case is oral and denied by either party; or secondly, where the terms thereof are to be decided by conflicting affidavits — except where the waiver can be shown by the affidavits of the appellee, rejecting those of the appellant.</p>

<p>PETITION for certiorari heard at February Term, 1883, of The Supreme Court.</p>

Civil ActioN tried at Fall Term, 1882, of Beaufort Superior Court, before Gilliam, J. The plaintiffs’ action is upon a fire insurance policy issued by the defendant company upon a stock of goods subsequently burned, and the recovery is resisted upon the grounds: 1. There was a false representation, having the force of a warranty, that the amount of previous insurance on the property was twenty-four thousand dollars, while it was in excess of that sum. 2.

The defendant in this action, as plaintiff' in another, prosecuted against the present plaintiff, who is the defendant in that, at a special term of Duplin superior court held in 1882, recovered judgment for the possession of the land in dispute between them, and for his costs of suit with a stay of execution for ninety days, during which certain referees named should pass upon the value of rents, ascertain payments made, and the residue of the purchase money due upon a…

<p>MotioN for injunction in an action pending in Wake Superior Court, heard at. Chambers in October, 1882, before MeKoy, J.</p> <p>The plaintiffs allege that under the provisions of the act incorporating the Western Division of the Western North Carolina Railroad Company, to which the plaintiff company under the name of the Western North Carolina Railroad Company has succeeded, and other acts of legislation relating thereto, a route, westward from Asheville towards the Tennessee boundary, passing over a locality known as “Red Marble Gap," has been surveyed and located, and thus an inchoate prior right to construct the railroad thereon acquired, to become perfect upon payment of damages to be assessed for the appropriation of the land. They further allege that the defendant company, the Georgia and North Carolina Railroad Company, organized and operating also under the laws of the state, has-taken possession of a portion of the land traversed by the line of the projected road, in process of construction by the plaintiff, and claiming a right to locate its road thereon, under a deed or license from the proprietor of the land, is engaged with a large force of workmen in making excavations and levelling, with intent to put its superstructure thereon for the rail track when filled for the purpose.</p> <p>The object of the action is to have the defendant company, its officers and agents perpetually enjoined from interfering in any way with the land thus previously taken and appropriated to the use of the plaintiff company, and upon a preliminary application to the judge on July 2d, 1882, he decided to issue a restraining order to be in force until it could be heard, and directed that cause be shown by the defendant, at Raleigh, on August 21st, thereafter (the hearing having been postponed on that day to October 11th) why the injunction asked should not be granted.</p> <p>The parties appeared and filed numerous affidavits and exhibits, those of the parties in the form of complaint and answer being used as such, bearing generally upon the conflicting claims asserted by each to locate its line of railway over the disputed territory, to which it is not necessary to advert in detail.</p> <p>His Honor upon the evidence, after finding the facts, ordered and adjudged that the Georgia & North Carolina Railroad Company, and its officers, agents and employees be enjoined till the hearing of the cause, from occupying, working or using, as a road-bed or track, any part of “Red Marble Gap” on the surface that would be necessary to put the centre of their track where the excavation is made, at least 15 feet from the centre of the track of the Western North Carolina Railroad Company, when run on the line with which it has entered the gap, and heretofore been marked and surveyed, and so as to make its slopes sufficient and not less than 25 feet from the centre of the gap, unless it should be made to appear to the court hereafter, that owing to the nature of the gap it may be necessary to modify this order so as to allow the centres of the two tracks to approach nearer to each other, and an injunction conforming to the judgment was directed to issue, on the plaintiff company’s filing a bond in the sum of $2,000, intended, as we suppose, though such is not its declared object, to provide an indemnity for the defendant company against any damages it may sustain in consequence of the wrongful suspension of its operations at this point. From this ruling the defendants appeal.</p>

<p>Partnership — Agreement to cultivate land — Landlord and Tenant.</p> <p>1. A partnership exists, where there is a common liability for losses and a common participation in the profits, as profits, after the payment of expenses.</p> <p>2. A partnership, regulating the relations and interests of the members among themselves, is not the same as one formed and acting as such in its relations to others.</p> <p>3. Where the landlord furnishes the land and teams and feed for them, and the tenant supplies the labor and provisions for the laborers, in the cultivation of a crop — the gross product to be divided between them, without any account of expenditures made by either; Held, that the agreement does not constitute an agricultural partnership.</p> <p>4. The statute expressly provides that the lessor, by reason of his receiving a share of the crop, shall not be regarded as a partner of the lessee.</p> <p>5. Curtis v. Cash, 84 N. C., 41, explained and corrected.</p>

<p>Civil ActioN tried at Spring Term, 1882, of Pitt Superior Court, before Gilmer, J.</p> <p>The plaintiff complains of the conversion by the defendants of three bales of lint cotton, alleging the title and the right of possession to the same to have been in himself.</p> <p>The case made by the evidence is as follows: The plaintiff, being the owner of a certain tract of laud in Pitt county, rented so much thereof as would amount to a two-horse farm, to one Butts, for the year 1879, upon the agreement that he was to have one-third of all the crops made thereon as rent — he further contracting to furnish the said Butts with such supplies as he might need during the year, the exact amount of which is not definitely stated; also, the use of an ox, and such tools as might bo needed to make the crop, for all of which he was to pay a fair price.</p> <p>In pursuance of this agreement, the plaintiff furnished his said tenant with supplies and other articles necessary to the cultivation of' the crop, to the amount of one hundred and ninety-six dollars and some cents, and his share of the cotton raised amounted to five hundred and seventy-one pounds. After the crop matured and was picked, Butts, the tenant, carried the cotton, with the consent of the plaintiff, to a neighboring gin, where it was packed, and made ready for market. When in that condition the plaintiff gave his assent to his selling one bale, but no more. The cotton in dispute was carried from the gin to the store of the defendants in an adjoining county, and there sold to them without the consent or knowledge of the plaintiff, but without their having any notice of his claim to the same, or of its having been raised upon his land.</p> <p>The three bales would average four hundred pounds each, and were worth eleven cents per pound. Butts has never paid the plaintiff the rents- due him, nor for the supplies furnished, though in an action which he brought against the plaintiff before a justice of the peace, the latter pleaded the amount due to him for rent and supplies furnished, as a counterclaim, and recovered judgment therefor, which has never been satisfied.</p> <p>Upon this state of facts the judge below intimated an opinion that the plaintiff could not recover, and in deference thereto he submitted to a nonsuit and appealed. '</p>

<p>Landlord and Tenant — No compensation allowed tenant for improvements.</p> <p>1. The relation of landlord and tenant being established, the tenant is not entitled to compensation for improvements put upon the land during his occupation, as lessee, where he believed he was entitled to the possession for the lessor’s' life, when under the contract he was not; nor is the rule modified by the fact that the lessor silently acquiesced in the putting up the improvements.</p> <p>2. The statute, Bat. Rev., ch. 17, § .262 a, is not applicable to a case like this, and does not protect the tenant from the consequences of his misconstruction of the effect of the contract.</p>

Civil ActioN tried at January Special Term, 1882, of Northampton Superior Court, before Graves, J. Appeals were taken by both the plaintiff and defendant, ,S. Emily Burgwyn, which for the sake of convenience the court considered together. There were also exceptions taken to the rulings of the court with reference to the rights of the inter-pleader, Welsh, but as the court found it unnecessary to consider them, it is needless to state them.

<p>EjectmeNT tried at Fall Term, 1882, of Wake Superior Court, before McKoy, J.</p> <p>The defendant appealed.</p>

Civil ActioN tried at Fall Term, 1882, of Beaufort Superior Court, before Gilliam, J. In 1871, Henry Leggett died in Beaufort county seized of several parcels of land, which for want of lineal heirs descended to his brothers and sisters, eight in number, and including both the plaintiff and the defendant.

Special Proceeding commenced before the clerk, ancl heard at Fall Term, 1882, of Caswell Superior Court, before Shipp, J. The plaintiffs filed their petition to sell land for partition, alleging that they and the defendants are tenants in common, but owing to the large number of persons interested, it is impossible to have actual partition without serious injury to all of them.

<p>Reference — Account—Fines—Towns and Cities — School Fund.</p> <p>1. A reference for an account should not be ordered before passing upon a defence set up, which if sustained may put an end to the controversy.</p> <p>2. Fines imposed and collected under city ordinances, are not included in the constitutional provision appropriating fines, &c., collected in the several counties to the school fund.</p>

<p>Master and Servant — Shipping—Pilotage— When owner of Vessel and pilot in charge liable for aeeident.</p> <p>1. Tlie relation of master and servant exists between the owner of a vessel and a licensed pilot, temporarily taking the master’s place in controlling the navigation of the vessel.</p> <p>2. Where a steamer collided with the plaintiff's boat lying at a wharf, there being room for the steamer to leave its mooring without the danger of collision; Held, that the owner of the steamer i§ liable to the plaintiff in damages for the injury sustained.</p> <p>3. The pilot is individually liable only where he is in actual charge and solely at fault; and this must be affirmatively shown, together with the fact that there was no fault on the part of the officers and crew of the colliding vessel, to relieve its owner of the prima facie liability for the acci- • dent; and any concurring negligence with the fault of the pilot will not exempt the owner.</p>

<p>Hoads and Bridges — Private Way, damages for negleet in repairing.</p> <p>1. A private-way was opened by the defendant for his own convenience and a bridge built over a creek which ran across it, and the public used the same with his knowledge and permission; the plaintiff sustained injury caused by the breaking in of the bridge, which the defendant knew to be unsafe, but which was apparently in good condition; Held, he was liable to the plaintiff in damages.</p> <p>2. The duty of reparation and the liability for neglect in such cases, rest upon the defendant, by whose implied invitation the public used the way.</p>

<p>Contract — Partnership.</p> <p>A contraci entered into whereby C agrees to devote his individual attention to the business of L’s store, at a certain stipulated price per annum, is not a partnership transaction, but one between separate and distinct persons. It was the duty of the court in such case to interpret the instrument and not submit the question to the jury.</p>

<p>'Guardian and Ward — Action, subsisting though not transferred.</p> <p>1. The ward has a right to subject land sold by his guardian to the payment of the purchase money.</p> <p>2. An action, not transferred to the new docket under sections 400 and 401 of the Code, is still a subsisting one until disposed of by a judgment.</p>

<p>Civil ACTION tried at Fall Term, 1882, of MartiN Superior Court, before Gilliam, J.</p> <p>This is an action upon a policy of insurance against fire, issued by the defendant to one Bryant Wynn on the 1st day of October, 1880, in the amount of six hundred dollars for one year — one hundred dollars being for his store situate at Wynn villa, in Martin county, and five hundred dollars for his stock of goods kept therein — the premium paid for the whole being twelve dollars. The store and goods were destroyed by fire on the 1st day of February, 1881.</p> <p>Amongst other stipulations the policy contained a provision, that “ if the title to the property l?e transferred or changed in any way other than by succession by reason of death, or the policy be assigned, or the property mortgaged, without written permission endorsed hereon, this policy should be void.”</p> <p>On the trial the following facts were agreed to as constituting ■the case.</p> <p>On the 3d day of October, 1880, the said Wynn admitted one Mobly into partnership with himself and sold to him one-half of the stock of goods insured, and then in the store, and also by an endorsement on the policy assigned to him one-half interest therein. At the same time one Ewell, who was a solicitor of business for the defendant, signed an agreement printed upon the back of the policy, whereby he gave the assent of the defendant to such assignment — he having, however, no authority to bind the defendant by any such agreement.</p> <p>After the destruction of the property, one Montgomery, who was an agent of the defendant, erased the name of Ewell from such agreement, and signed his own thereto. Wynn and Mobly afterwards assigned their interest in the policy to the plaintiff, in trust for the benefit of their creditors.</p> <p>Upon these facts as admitted, the plaintiffs moved the court for judgment for the value of the goods destroyed, which His Honor declined to grant, being of the opinion that the sale of one-half of the stock of insured goods without the consent of the defendant, avoided the policy. The plaintiffs then moved for judgment for the value of the house burned, which was also declined. They then bffcred testimony to show that at the time he signed the instrument giving the assent of the defendant to the assignment to Mobly, Ewell represented to Wynn that he had authority to do so, but this was excluded by the court. To these several rulings the plaintiffs excepted, and appealed from the judgment rendered.</p>

<p>Civil Action tried at January Special Term, 1883, of Rich-MONK Superior Court, before Graves, J.</p> <p>The defendants appealed from the judgment of the court below.</p>

Civjx ACTION tried at January Special Term, 1883, of Richmond Superior Court, before Graves, J. The plaintiff’s action, begun before a justice of the peace, is to recover the amount of a note of the defendant for the sum of $200, with interest thereon, from March 1st, 1877.

<p>Pleading— Variance■ — ■Negotiable Instrument.</p> <p>1. A variance between the allegation and the proof in a civil action ia immaterial, unlesp it be shown to the court that the adverse party has been misled. C. C. P., g 128.</p> <p>2. Negotiable paper endorsed by payee, and then appears the name of another person upon it; Iield, that such person is an endorser.</p> <p>3. An endorsement in blank should be filled, by order of court, before judgment rendered.</p> <p>4.. Effect of endorsement in blank at the time the note is made, and after its delivery to payee — upon negotiable and non-negotiable paper — liability of signers, whether bound as original promissors, guarantors or endorsers — application of the rule announced to “ accommodation paper ”— pointed out and discussed by Ashe, J.</p>

<p>EjectjíENT tried at Spring Term, 1882, of Iredell* Superior Court, before Pure, J.</p> <p>The plaintiff appealed.</p>

<p>Slander — Pleading.</p> <p>L In slander, the complaint must set ont the actionable words spoken, not simply a narrative of what occurred on a certain occasion; and they most amount to a direct charge, not a mere suspicion of the. commission of the alleged offence.</p> <p>2. A complaint containing two unconnected alleged causes of action against different persons, is demurrable.</p>

Civil ActioN tried at Fall Term, 1881, of Gates Superior Court, before Bennett, J. The plaintiffs sue for an account of the estate of the feme plaintiff, which came to the hands of the defendant as her guardian. The only question involved in the appeal is as to his liability for a sum of Confederate money, received in December, 1862, upon a bond secured upon personal security, and then solvent.

Civil ActioN tried on exceptions to a referee’s report, at Spring Term, 1881, of Wilkes Superior Coult, before Seymour, J. Mrs. Rachael Stokes died in Wilkes county in the year 1860, leaving a last will, in which she directed all of her property of every description to be sold upon a credit of twelve months, as soon as it could be conveniently done, after her death.

<p>MOTION for injunction and receiver, in an action' pending in Cumberland Superior Court, heard at Chambers on the 7th of February, 1883, before MacRae, J.</p> <p>The plaintiffs appealed.</p>

Civil AotioN tried at Fall Term, 1881, of ANSON Superior Court, before Graves, J. The plaintiff declares upon three notes, given hini by the defendant’s intestate, and also upon an open account. The first note, dated in September, 1877, is for $49.95; the second, in November, 1877, for $40; and the third, in May, 1878, for $25. The account is a running one, commencing in May, 1878, and closing in September of that year, and is for $43.45.

<p>Civil ActioN tried at Fall Term, 1882, of Anson Superior Court, before Gilmer, J.</p> <p>The plaintiff appealed.'</p>

The facts as set forth in the pleadings and the accompanying affidavits, are as follows: The plaintiffs, who are residents of the state of Maryland, own, and have owned for several years, a lot of land situate in the city of Raleigh, which they have been accustomed to list for taxation through their agents, Messrs.

MOTION to set aside a judgment heard at Fall Term, 1882, of Orange Superior Court, before Shipp, J. The plaintiff) as assignee of the Citizens National Bank of Raleigh, brought an action to fall term, 1881, of the superior court of Orange county, upon the following promissory note: “$2,500.

<p>Vacation of Judgment — Section 133 — Infants.</p> <p>1. A party seeking to have a judgment set aside on the ground of excusable neglect, must at least set forth in his application such a case as prima facie amounts to a valid defence: whether the defence is valid, is a question to be determined by the court, not by the party.</p> <p>2. There is a presumption in favor of the validity of every judgment of a. court of competent jurisdiction, and the burden of overcoming it rests upon the party seeking to set aside the judgment.</p> <p>3. In applications for relief under section 133, no distinction is made between adult and infant parties, provided the latter are represented according to the requirements of the law and the practice of the court.</p>

MotioN to set aside a judgment heard at Pall Term, 1882, of GreeNE Superior Court, before MacRae, J. An action was brought by the plaintiff against the defendant company, a corporation duly organized under the laws of the state of New York, and the summons, returnable to fall term, 1882, was regularly served on June 28, 1882, upon W. W. Smith, the company’s general agent in this state, and the person upon whom service of process may be made under the act of 1877, ch. 157, §…

<p>Evidence — Section 343 — Deed—Fraud, evidence in.</p> <p>1. A party’s declarations and admissions pertinent to the issue are evidence against him, and if made in the presence and at the instance of others having a like interest with him, they are evidence against them.</p> <p>2. Notwithstanding the statute, section 343 of the Code, one may testify to a transaction by the opposite party, when against his own interest. And though direct evidence of a conversation with a person deceased be incompetent, a rehearsal of the same in a conversation with a son of the deceased is competent under the facts of this case, as part of the res gestee.</p> <p>3. A deed made by an insolvent father to his son, in the presence of' another son, nothing else appearing, is presumed to be fraudulent as to creditors. The burden to remove this presumption rests upon him who seeks to uphold the conveyance. A grantee in such case may, protect his title by showing that he is a purchaser for value and without notice of the grantor’s fraudulent intent.</p>

<p>Civil Action tried at July Special Term, 1882, of DupliN Superior Court, before Gilliam J.</p> <p>Defendant appealed.</p>

<p>MotioN to dismiss the action heard at February Term, 1883, of The Supreme Court.</p>

Civil ActioN commenced in a justice’s court, and tried on appeal at Spring Term, 1882, of Watauga Superior Court, before Avery, J. The facts agreed upon are as follows: The defendant was sheriff of Watauga county in 1872, and gave his official bond in the sum of $16,000, conditioned for paying county and school taxes, (fee., in the several forms prescribed by law, and the plaintiff was one of his sureties thereto.

<p>Special PROCEEDING commenced in the probate court, and heard at Fall Term, 1882, of Beaufort Superior Court, before Gilliam, J.</p> <p>Judgment for defendants; appeal by plaintiff.</p>

<p>Civil ActioN tried at Fall Term, 1882, of Davie Superior Court, before Gudger, J.</p> <p>The plaintiff obtained a judgment in 1878 (on a note dated in January, 1866, as he alleges) against the defendant, Kelly, which was affirmed in the supreme court, from which executions have regularly issued but without satisfaction. Kelly owns and has owned a valuable tract of land in Davie county since the year 1866, which is subject to the dower of his mother. On the 13th of March, 1873, he conveyed the same in trust to the defendant, J. M. Clement, to secure a certain debt, with power to sell the land if the debt was not paid within one year from the date of the deed; and on the 16th of September, 1876, he executed another deed in trust to the defendant, W. A. Clement, to secure a debt due by note-for $403.25, with like power to sell. Besides these deeds, there were several judgments docketed in the superior court, which had a lien on the land. It was admitted that the debts secured by said deeds had never been satisfied. The defendant, Kelly, was adjudicated a bankrupt and obtained his discharge in 1870.</p> <p>The plaintiff asks the court to compel the defendant, J. M. Clement, to sell Kelly’s interest in the land conveyed to him, and after paying the secured debt, to satisfy his judgment and the costs incident thereto in the superior and supreme courts. The defendant did not resist the sale of the land, but contended that he was entitled to his homestead (subject to the dower of his mother and the mortgage liens) against the debt of the plaintiff.</p> <p>His Honor adjudged that the defendant was entitled to his homestead against the debt of the plaintiff, and that W. A. Clement be appointed a commissioner to sell said land, after allotting the defendant’s homestead,'and apply the proceeds first to the satisfaction of the mortgages, then to the docketed judgments having liens prior to the plaintiff’s claim, and the surplus to the plaintiff’s judgment. From which judgment- the plaintiff appealed.</p>

CONTROVERSY submitted without action under section 315 of the Code, and heard at Fall Term, 1882, of Beaufort Superior Court, before Qilliam, J. William D. Taylor, seized of an undivided fourth part of an estate in fee in a tract of land not exceeding $500 in value, died on the 19th of April, 1881, intestate, leaving a wife (the defendant) and one child, an infant of the age of three years, who also died a few days thereafter.

Ejectment tried at Pall Terra, 1882, of CHATHAM Superior Court, before Shipp, J. The feme plaintiff claimed the land by virtue of a sheriff’s sale (and deed to her) under an execution issued upon a judgment, duly docketed in the superior court of Chatham county, rendered on a note as follows: “One day after date we promise to pay Frances Dorsett, or order, the sum of fifty dollars for value received, as witness our hands and seals, March 5th, 1856.

<p>MotioN for injunction, in an action pending in Guilford Superior Court, heard at Chambers on the 26th of December, 1882, before Gilmer, J.</p> <p>Both parties appealed from the ruling of the court below.</p>

Civil ActioN tried at Fall Term, 1882, of CUMBERLAND Superior Court, before Gilmer, J. One W. D. Smith, becoming involved in debt and unable to carry on his business, on December 20th, 1878, conveyed his stock of goods and some other articles to the plaintiff (in trust to secure and pay his creditors) by a deed containing a reservation in these woods: “Saving and reserving, however, unto the party of the first part, and exempting from the operation of tiiis deed enough of…

<p>PETITION to rehear filed by the defendant and heard at February Term, 1883, of Ti-ie Supreme Court.</p>

<p>Taxation — Tax Title.</p> <p>1. Land should be listed for taxation in the name of the individual owners, and not in the name of the “estate”.of one deceased.</p> <p>2. A tax-title derived by a purchase)' at sheriff’s sale of land listed in the name of the “estate” of one deceased, is defective: the law requires personal service of notice of levy and sale upon the delinquent tax-payer.</p>

<p>Fraud avid Fraudulent Conveyances — Equity.</p> <p>1. Where the fraudulent mortgagee reconveys the land to the fraudulent mortgagor, before any lien attaches in favor of the creditors of the former, they cannot subject the land to the payment of their debts.</p> <p>2. A fraudulent vendee is under no legal obligation to reconvey, though morally bound to do so; but a court of equity will give no aid where both the vendor and vendee participate in the illegal transaction.</p>

<p>Civil ActioN tried at Spring Term, 1882, of BladeN Superior Court, before Shipp, J.</p> <p>The defendants appealed.</p>

EjectmeNT tried at Spring Term, 1882, of Wilkes Superior Court, before Avery, J. From the ruling and judgment of the court below, the deferir dant appealed.

EJECTMENT tried at Spring Term, 1883, of Durham Superior Court, before Gilmer, J. This action was originally brought only against the defendant, Amanda Bumpass, who was in possession of the land in controversy, but at fall term, 1882, the defendant, Justice, was allowed, upon his affidavit, to come in and defend the same.

<p>Parol contract of Pwrchase, damages not recoverable for breach ■ of — Respective rights of Parties.</p> <p>1. An action for damages for the non-performance of a parol contract for the purchase of land cannot be sustained.</p> <p>2. A vendee under such a contract, who makes improvement upon the land, cannot maintain an action for their value against the vendor, provided the latter makes no use of them, and is willing that they may be removed. All that the court can do, in such case, is to see that the vendor shall derive no unconscionable advantage from his manner of dealing with the vendee.</p> <p>(Chief-Justice Smith dissenting.)</p>

Civil ActioN tried at Spring Term, 1882, of Guilford Superior Court, before Graves, J. The defendant, F. W. Sechrist, owning a tract of land containing about twenty-one acres, at a sale under execution against bis father, the defendant, Reuben F. Sechrist, made in September, 1879, and conveyed to him by the sheriff of Guilford in the month of August of the year following, entered into a written agreement in these words: “High Point, N. C., August 9th, 1889.

Civil Action tried at Fall Term, 1882, of Wilkes Superior Court, before Gudger, J. This action was instituted against the defendant, J. S. Call, and the heirs of William Masten, for a specific performance of a contract to convey land, entered into by the said Masten with the plaintiff, Thornburg. The defendants, with the exception of Call and Brown, are the heirs-at-law of William Masten.

<p>Civil Action tried at Fall Term, 1882, of Camden Superior Court, before Gilliam, J.</p> <p>The plaintiff alleged that the defendants entered into a contract to sell him a certain tract of land in Camden county— describing it in his complaint — and he was thereupon let into possession of the same, and has improved the premises at considerable cost to him. He further alleges that he has paid the purchase money in full, and demanded a deed from the defendants, which they refuse to execute. This action is brought for a specific performance of the contract.</p> <p>The defendants, among other things not material to the point decided by this court, say that the contract was never reduced to writing, nor was any memorandum thereof signed by them, or either of them, whereby to take the same out of the statute of frauds, and deny many of the allegations in the complaint.</p> <p>The plaintiff replies and alleges that the contract was reduced to writing, and a memorandum of the same made in words and figures, and set in the opinion here.</p> <p>The defendants demurred to the replication upon the ground that the facts contained therein are not sufficient in law to support the plaintiff’s action. The court sustained the demurrer, and the plaintiff appealed.</p>

<p>Civiij ACTION tried at January Special Term, 1882, of Meck-LEÑBURG- Superior Court, before Bennett, J.</p> <p>Verdict and judgment for plaintiff; appeal by defendants.</p>

<p>Ejectment tried at January Special Term, 1883, of RICHMOND Superior Court, before Graves, J.</p> <p>This action is brought to recover a parcel of land, and the only question involved in the appeal is as to the sufficiency of the probate and privy acknowledgment of a certain deed, executed on the 2d day of October, 1844, to one Charles Malloy by Alexander Malloy and his wife Mary Ann —she being then the owner of the land.</p> <p>Upon the deed are the following endorsements: “I, John L. Fairley, did go to the house of Alexander Malloy on the 19th of April, 1845, and privately and apart from her husband, Alexander Malloy, examined Mary Ann Malloy, who says she executed this conveyance truly of her own accord, without fear or compulsion of the said Alexander Malloy, her husband.” (Signed by John T. Fairley).</p> <p>State of Noeti-i Caeolina, 1 Court of Quarter Sessions,</p> <p>Richmond County, j April Term, 1845.</p> <p>“ When the foregoing deed was exhibited in open court and offered for probate, and it appearing to the satisfaction of the court that John L. Fairley had taken the private examination of Mary Ann Malloy, the feme covert, whose report is hereunto appended, and it also appearing to the satisfaction of the court, that Alexander Malloy had acknowledged the execution of the same at the January term last past of this court, the court ordered the whole to be registered.” (Signed by G. A. Nicholson, G C. C.).</p> <p>Upon the minutes of the said county court, the following entry appears, at January term, 1845: “A deed from Alexander Mal-loy and wife, Mary Ann, to Charles Malloy, was exhibited in open court and offered for probate, and duly acknowledged by Alexander Malloy, and it appearing to the satisfaction of the court that Mary Ann Malloy was a fe^ne covert, it is ordered by the court that a commission issue to John L. Fairley, one of the body, to take the private examination of Mrs. Mary Ann Mal-loy, wife of Alexander Malloy aforesaid, touching her executing said deed, and report the same to the next term of the court.”</p> <p>Also, the following at April term, 1845: “A deed of conveyance from Alexander Malloy and wife, Mary Ann Malloy, to Charles Malloy, was exhibited in open court and offered for probate, and it appearing to the satisfaction of the court that John L. Fairley, one of their body, had taken the private examination of Mary Ann Malloy, wife of the aforesaid Alexander Malloy, touching her having executed said deed freely, voluntarily and of her own accord, whose report appears appended to the deed, and it also appearing to the court that Alexander Mal-loy has acknowledged the execution of said deed at January term last past of this court, the court ordered the whole to be registered.”</p> <p>Accompanying the deed is a commission which was issued by said court to John L. Fairley, the purport of which is as follows:</p> <p>State of North Carolina,</p> <p>To John L. Fairley — Greeting:</p> <p>“Whereas, Charles Malloy hath produced a deed of conveyance made to him from Alexander Malloy and wife, Mary Ann Malloy, of a certain parcel of land situate in the county of Richmond and our state, and procured the same to be proved or acknowledged by the said Alexander and Mary Ann his wife, in the court of our said county of Richmond, and it being represented to our said court that Mary Ann Malloy, wife of said Alexander, is so infirm that she cannot travel to our said court, to be privily examined as to her free consent in executing said conveyance: Know ye, that we, in confidence of your prudence and fidelity, have appointed you, and by these presents do authorize you to take the private examination of the said Mary Ann, wife, of the said Alexander’, concerning her free consent in executing the said conveyance, and therefore we command yon that, at such time and place as you shall think fit, you go to the said Mary Ann Malloy, if she cannot conveniently come to you, and privately and apart from her husband examine her, whether she executed the said conveyance freely and of her own accord, without fear or compulsion of her husband, the examination being distinctly and plainly written on the said deed or on some paper annexed thereto, and when you shall have so taken the said examination, you are to send the same, closed up and under your seal, together with this writ, unto our said court to be held for the said county in Rockingham on the 3d Monday in April next. Witness, G. A. Nicholson, clerk of our said court, at office, the 17th day of March, A. D. 1845.” (Signed by Nicholson, as clerk).</p> <p>The plaintiffs in the action claimed under said deed. His Honor was of the opinion that the probate and acknowledgment thereof were not sufficient to bar the feme covert or her heirs, and the plaintiffs then submitted to a judgment of nonsuit, and appealed.</p>

EJECTMENT tried at Fall Term, 1882, of Wilkes Superior Court, before Gud.ger, J. The land sought to be recovered in this action belonged to the defendant, who on March 27th, 1876, conveyed the same by a deed of mortgage to Noah Brown to secure the payment of the sum of two hundred dollars then loaned to the defendant, with a power of sale to the mortgagee in case of default in making payment.

<p>Dower — Deed of Surrender.</p> <p>,1. A widow is entitled to dower only in an estate of inheritance, of which the husband had a seizin in law or a seizin in deed, at any time during the coverture; and therefore she is not dowable of a reversion or remainder expectant upon an estate of freehold.</p> <p>2. A particular estate of freehold may be surrendered to the remainderman by deed, but not by a parol agreement.</p>

<p>Deed, probate of — Ejectment, evidence in — Entries and Grants— Practice — Statement of Case, preparation of.</p> <p>1. A certified copy of a deed is evidence of its probate and registration ; and a probate as follows: “Sampson county, August term, 1812: Then was the above deed acknowledged in open court, H. Holmes, C. C.”, shows the official character of the clerk.</p> <p>2. Parol evidence is admissible to show the position of boundary marks mentioned in a deed.</p> <p>8. Where a deed calls for a natural object and the line gives out before reaching it, the line must be extended to the natural object and the distance disregarded.</p> <p>4. A copy of an abstract of a grant, dated in 1799, bearing the signature of the governor of the state and certified to by the register, is admissible in evidence to show that the land has been granted.</p> <p>5. Errors assigned must be specifically pointed out, or no correction will be made.</p> <p>6. The court condemn the practice of judges and members of the bar in incorporating superfluous matter in the statement of the ease on appeal, and again suggest the propriety of stating only those facts which are pertinent to the exceptions taken upon the trial.</p>

Ejectment tried at Fall Term, 1882, of Hyde Superior Court, before Gilliam, J. A jury trial was waived, and the court found the facts to be substantially as follows: Both parties claimed title to the land in dispute from B. F. Credle. The loans m quo is described by the lines indicated on the diagram' by the figures 15, 16, 17 and 18.

<p>Deed — Color of Title — City Lots.</p> <p>1. A deed is color of title only for the land designated and described in it.</p> <p>% A dispute as to the true location of a line separating two town lots must be determined by an interpretation of the descriptive words contained in the deeds.</p> <p>Ü. If the words simply designate the lots by number, the boundary, as circumscribed by actual use and occupation, is the one meant by the bar-gainor. But where they refer to the lots not only by number, but “as known and designated in the plan” of the town, which plan contains a specific description thereof, it is the same as if that description were incorporated in the deed, and the latter must prevail; and it is incompetent to show by parol that the boundaries were intended to be different.</p> <p>4. Whether a dividing line between contiguous tracts can be changed by recognition and acts of ownership of the proprietors (?).</p>

<p>MOTION for injunction, in au action pending in Cabarrus Superior Court, heard at Chambers on the 10th of October, 1882, before Graves, J.</p> <p>The motion was heard upon ex parte affidavits, and an injunction granted until the trial, and the defendants appealed.</p>

EJECTMENT tried at Spring Term, 1882, of Watauga Superior Court, before Avery, J. This action was begun on the 22d day of March, 1877. It is brought to recover the possession of land the title of which is claimed by both parties, as derived under one D. C. McCanless. The plaintiff claims under a judgment and execution against the said McCanless and a sheriff's deed conveying the land as his property.

<p>Civil. ActioN to foreclose a mortgage, tried at Fall Term, 1882, of Beaufort Superior Court, before Gilliam, J.</p> <p>The defendants appealed.</p>

<p>EJECTMENT tried at Fall Term, 1882, of Yancey Superior Court, before Avery, J.</p> <p>Defendant appealed.</p>

<p>Civil ActioN tried at Spring Term, 1882, of Halifax Superior Court, before Bennett, J.</p> <p>The plaintiffs appealed from the judgment of the court below.</p>

<p>Civil ActioN tried at Fall Term, 1882, of Hyde Superior Court, before Gilliam, J.</p> <p>The plaintiffs appealed.</p>

Civil, ACTION tried at Fall Term, 1882, of Anson Superior Court, before Gilmer, J. Jacob Bruner, being indebted in three several notes given to George W. Willoughby for the purchase of a lot in the town of Wadesboro, described in the complaint and the subject of the present controversy, on March 19th, 1859, in order to secure the same, conveyed said lot by deed of mortgage to said Willoughby with a power of sale to be exercised in default of payment after a day intended to…

<p>Ejectment — Adverse possession — Colorable title, continuous possession necessary to perfect.</p> <p>1. Every possession of land by one other than the claimant is deemed to he adverse until proof to the contrary is made.</p> <p>2. Where acts of ownership consisted in the payment of taxes on the land, and the employment of agents in respect to it, in the absence of actual possession on the part of the alleged owner; Held, error to permit the jury to consider such acts in passing upon the question of continuous possession required to perfect a colorable title under a deed. Here, the jury should have been instructed that no such continuous possession was shown by the plaintiff,</p>

Ejectment tried at Spring Term, 1881, of Iredell Superior Court, before MoKoy, J. The plaintiff claimed under the following clause of John McLelland’s will, which was put in evidence; Item 5. “I give and bequeath to my neighbor and friend, R. H. Parks, two hundred and twentj^-five acres of land, lying on the waters of Dutchman creek, being part of the plantation on which I formerly lived, including the dwelling and outhouses, in trust and confidence nevertheless for the sole…

<p>Ejectment — Pleading and proof— Variance.</p> <p>1. In ejectment, the plaintiff claimed as purchaser under a mortgage executed in 1869; the defendant, as purchaser under a mortgage executed in 1876, and failing to make good his title thereunder, he offered to show a sale of the land for taxes and a deed to himself from the sheriff, but this evidence was ruled out upon the ground that the defendant is precluded, by the terms of his answer, from setting up any other title than that asserted therein; Held, error.</p> <p>2. As the plaintiff recovers upon the strength of his own title and the defendant is permitted to show that the title is in a stranger, so also, he may show it to be in himself, though derived from a source differing from the one alleged in the answer.</p> <p>3. The court intimate that the Code cures the alleged variance between the pleading and the proof.</p> <p>4. An answer which fails to state separately the distinct grounds of defence will be rejected, if exception is taken at the proper time.</p>

Civil ActioN tried at Spring Term, 1882, of Haywood Superior Court, before Gilliam, J. The plaintiff seeks to have the defendant, Herron, declared a trustee to his use of the legal title of a certain parcel of laud, and to set up a lost deed to the same and to recover the possession thereof.

EJECTMENT tried at Spring Term, 1882, of Yadkin Superior Court, before Avery, J. The land mentioned in the complaint and demanded in the action belonged to one R. C. Poindexter, who in the year 1876 executed a deed therefor to J. H. Jenkins and Abram Hauser, and they in the month of August, 1878, conveyed the same to the feme plaintiff.

Special PROCEEDING commenced before the clerk and heard at Fall Term, 1882, of CUMBERLAND Superior Court, before Qikner, J. The defendants appealed from the judgment of the court below.

<p>Civil Action upon an administration bond, tried at Fall Term, 1882, of RobesoN Superior Court, before Shipp, J.</p> <p>The action was brought by the plaintiff as administrator de bonis non of D. H. McLean, against the defendant, as administrator of G. W. McLean, and the sureties upon his bond. The breach of the bond, assigned as the cause of action, is the nonpayment of a judgment obtained in the superior court at fall term, 1875, against the defendant, which is as follows:</p> <p>“It appearing by the complaint of the plaintiff that the defendant is justly due and indebted to the plaintiff in the sum of $455.61, and the defendant having failed to answer, it is considered and adjudged by the court that the plaintiff do recover of the defendant, administrator of G. W. McLean, the sum of $455.61,” with interest and costs.</p> <p>It was admitted by the plaintiff that this judgment was founded upon a note under seal, given by the defendant, A. A. McLean, to the plaintiff, in consideration of an open account due by the defendant’s intestate to the plaintiff’s intestate.</p> <p>The court gave judgment in favor of the plaintiff and the defendants appealed.</p>

Civie AotioN tried on exceptions to a referee’s report, at Fall Term, 1882, of MeckleNburg Superior Court, before Graves, J. In the year 1858, John Wolfe, the defendant’s testator, was appointed guardian of Dorcas W. Lee, an infant, and as such received, besides a considerable personal property from other sources, from the clerk and master in equity her share of the proceeds of sale of certain real estate, made under a decree of court for partition between herself and other…

<p>Executors and Administrators — Assets—Reference—Parties.</p> <p>1. Where a devastavit is charged, the primary liability for the waste rests upon the administration bond, and a reference to ascertain the fact was properly ordered.</p> <p>2. A failnre to apply for license to sell land for assets is not of itself a breach of such bond.</p> <p>3. Lands descended are not assets until a sale thereof and the receipt of the money by the administrator.</p> <p>4. The administrator de bonis non is a necessary party to a suit against the former representative to recover miadrninistered assets.</p>

Civil Actioh tried on exceptions to a referee’s report, at Fall Term, 1882, of Cleveland Superior Court, before Graves, J. The plaintiffs appealed from the judgment overruling their exceptions.

Civil ACTION tried at Spring Term, 1882, of UhioN Superior Court, before Gudger, J. The feme plaintiff is the widow of the defendant’s intestate, since intermarried with the other plaintiff, and they bring this action to recover her distributive share in the intestate’s estate.

Civil ActioN tried upon exceptions to a referee’s report, at Spring Term, 1881, of GastoN Superior Court, before Eure, J. Both parties appealed from the ruling of the judge.

Special Proceeding commenced before the clerk, and heard at Spring Term, 1882, of Robeson Superior Court, before tihipp, J. The proceeding was instituted by the plaintiff' to compel the defendant as executrix of Angus Leach, deceased, to sell the land described in the complaint, of which the said Leach was seized at the time of his death, to make assets for the payment of his debts.

Civil ACTION tried at January Special Term, 1882, of NORTHAMPTON Superior Court, before Graves, J. Eliza A. Phillips died in April, 1860, and J. M. S. Rogers qualified as executor to her last will and testament, but he died in April, 1874, without having settled the estate of his testatrix, and in June, 1876, the defendant, Grant, qualified as her administrator de bonis non.

Special PROCEEDING- commenced before the probate court and heard upon demurrer at Spring Term, 1882, of Pasquo-tank Superior Court, before MeKoy, J. The plaintiff, as administrator of J. C. Pritchard, deceased', seeks to sell the land of his intestate for the payment of debts, and filed his petition against the heirs of the intestate in the probate court for Pasquotank county, for license to sell the lands descended to them.

Civil ActioN tried at Fall Term, 1882, of Chatham Superior Court, before Shipp, J. The plaintiff on May 12th, 1856, conveyed certain personal estate then owned by him to Aaron D. Headen, in trust to secure the several debts therein specified, and with authority to sell and apply the proceeds to their payment if not discharged by himself before the 1st day of the same month in the year following.

Civil ActioN tried at June Term, 1882, of Wake Superior Court, before MaoRae, J. ’ This action, begun on the 12th of July, 1881, is… Held: inasmuch as the claim was not presented, or the action begun, until more than seven years had elapsed after the death of Trice and the qualification of Rogers as his administrator, and after the full administration of the assets by him and his final settlement and discharge, that, as to this estate, the plaintiffs’ cause of action…

<p>Special PROCEEDING for license to sell land for assets, commenced in the probate court, and beard at June Term, 1882, of Wake Superior Court, before MaoRae, J.</p> <p>The defendants appealed.</p>

Special PROCEEDING- heard at Spring Term, 1883, of Waice Superior Court, before Philips, J. This is a proceeding begun before the probate judge for the purpose of making real estate assets, and after issues joined it was certified to the superior court. It is conceded that the plaintiff’s intestate left no personal property, and that she owned no real estate except that described in the complaint. She died in 1874, and the plaintiff qualified as her administrator in 1878.

Civic Action tried at Spring Terra, 1882, of Chatham Superior Court, before Graves, J. This action was begun on the 17th day of August, 1880, and the plaintiffs seek to enforce the specific execution of a contract for the purchase of land, entered into between their ancestor, Mrs. Margaret Headen, and George W. Goldston, under whom the defendant, Wiley, claims the land as a purchaser, the other defendants being his heirs-at-law.

Special Psoceeding commenced before the clerk and heard at- Fall Term, 1882, of DavidsoN Superior Court, before Gktdger, J. The plaintiff, administrator of Andrew Hunt, finding the indebtedness of the estate of the intestate very large, and the personal property in hand wholly inadequate to its discharge, filed his petition against the heirs-at-law for the sale of certain lands, consisting of five town lots and a tract of 186 acres, therein particularly described, and which,…

PETITION of defendants to vacate a judgment heard at June Term, 1882, of Wake Superior Court, before Bennett, J. The plaintiffs commenced their action by suing out process in the late superior court of Wake, returnable to spring term, 1868, against the defendant Cannady Lowe, as administrator of Hugh E. Lynn, principal, and Joseph Scott and others, sureties, on the guardian bond of the intestate, to recover the amount of the trust fund in his hands.

<p>MotiN to dissolve an injunction heard at Fall Term, 1882, of CUMBERLAND Superior Court, before Gilmer, J.</p> <p>The court ordered that the injunction theretofore granted by Judge Shipp, be continued to the hearing, and the defendants appealed.</p>

<p>Towns and Cities — Taxation.</p> <p>Whenever the authorities of a town shall be commanded to levy and collect taxes to pay a judgment rendered against it, they may appoint a special tax-collector to collect the same. Act 1876-77, ch. 257. But this power to appoint such a collector is additional, and does not abridge their right to require the collection to be made by the regular officer appointed for that purpose.</p>

<p>Summons, service of upon agent of Corporation- — Act of Assembly, repeal of.</p> <p>1. The summons in an action against a foreign corporation may be served either upon a local or general agent. Act 1875, eh. 168, and Act 1877, ch. 157, construed.</p> <p>2. The law does not favor a repeal, by implication, of a former act. Some notice of the former act must be taken, indicating an intention to repeal it; or there must be repugnance in the acts.</p>

Civil. ACTION removed from Davie county and tried at Spring Term, 1882, of Rowan Superior Court, before Eure, J. The plaintiff, administrator of Mike O’Donnell, deceased, who was an engineer on defendant’s road, sues the company to recover damages, alleging that the death of his intestate was caused by the defendant’s negligence. Verdict and judgment for plaintiff, appeal by defendant.

<p>MotioN for injunction heard at Spring Term, 1882, of ANSON Superior Court, before Shipp, J.</p> <p>Motion refused and plaintiff appealed.</p>

<p>Railroads — Excursion Trains — Contract—Judge’s Charge.</p> <p>I. Railroad companies can make reasonable regulations for-the management of trains.</p> <p>% The purchaser of a ticket is bound to inform himself of such regulations, and must conform to the custom of the road in transporting passengers.</p> <p>3. A regulation that persons purchasing tickets for an excursion shall travel upon the train provided for that special purpose, and not upon a regular train, is a reasonable regulation.</p> <p>4. The managers of an excursion from Wilmington to Washington contracted with the defendant company for a train of cars at a certain sum, and after advertising the time, &c., sold card-tickets at §6.50 for the round trip ; after the departure of the train and when it had proceeded a few miles, the defendant’s conductor passed through the cars and took up the card-tickets, and in lieu thereof gave coupon-tickets in order that the connecting roads might hold vouchers to obtain their pro rata share of the excursion money, in settling with the defendant; Held, that this did not change the original contract with the managers.</p> <p>5. The terms of the contract, contained in the coupon-ticket, did not confer the right upon the plaintiff excursionist to return on a regular train, even at an earlier day than that advertised for the excursion, without paying the regular fare. ,</p> <p>9. In a suit by the plaintiff against the company to recover damages for an assault by the conductor who attempted to put him off a regular train unless the fare was paid, the plaintiff testifying among other tilings that he supposed he liad the right to return on any train after the delivery of the coupon-ticket, but was compelled to pay additional fare for such privilege, it was held error in the court to charge the jury that they might consider the understanding and agreement of the parties in determining the character of such ticket — there being no evidence of .any agreement between the plaintiff and defendant.</p> <p>7. Brunhild v. Freeman, 77 N. C., 128, to the effect, that the construction of a contract depends upon what both parties agreed, not upon what either thought, approved.</p>

Civil ActioN tried at January Special Term, 1882, of Meck-lenburg Superior Court, before Bennett, J. The plaintiff in this action is ti colored woman, and seeks to recover of the defendant company damages for injuries sustained by her, while travelling on its train. The train was a special one for excursionists, running from Atlanta, Georgia, to Charlotte, North Carolina, on the 23d day of July, 1878.

<p>Railroads — Duty of Connecting Lines — Damages for delay in shipment of freight.</p> <p>1. The defendant company gave a bill of lading to plaintiff at Greensboro, for transportation of goods oia Charlotte to Burnsville, Ala., in which it was stipulated that the same are to be transported and delivered to the agents of connecting roads, and by them to the next connecting road, until the goods shall have reached the point named in the receipt, assuming no other responsibility for their safe carriage than may be incurred on its own road or at its own stations. The goods, on arrival at Charlotte, were delivered to the Charlotte, Columbia & Augusta road, and delayed in reaching the point of final delivery beyond the usual time required in transportation; Held, in an action by plaintiff for damages caused by the delay, (1) That the defendant, having the control of and operating the C., C. & A. road itself, received the goods at Charlotte, and is liable to the plaintiff, in the absence of proof to show that the detention of the goods occurred beyond the southern terminus of the last mentioned road. (2) The duty of safe carriage attaches as the goods pass into the custody of each company, and ceases only when they are safely delivered to its successor.</p> <p>2. The measure of damages occasioned by delay in shipment of goods, wh&re the carrier is not informed of the special circumstances causing the loss of the plaintiff’s contracts with others, is the difference between their market value at the time they ought to have been delivered, and the time they were in fact delivered, if in equally good condition; and if not, the damages should be increased to the extent of the deterioration resulting from the delay.</p> <p>3. The verdict as to damages only is set aside and that issue reopened to the end that an inquiry thereof may be made in the court below, according to the rule above announced.</p>

Civil ActioN tried at Fall Term, 1882, of Row AN Superior Court, before Gudger, J. The action was brought for a breach of contract. The plaintiff alleged that he and the defendant, a corporation organized by the laws of Pennsylvania, whose principal place of business was at Waynesboro, in said state, entered into the following contract on the 28th of August, 1880; Waynesboro, Franklin Co., Pa.

Civil ActioN tried at Pall Term, 1882, of MeckleNrurg Superior Court, before Graves, J. This action was commenced before a justice of the peace to recover damages for killing a cow of the plaintiff.

Civil ActioN tried at Pall Term, 1882, of WilsON Superior Court, before MaaJRae, J. Plaintiff claims damages occasioned by the running over and killing his mule by defendant’s train. The following issues were submitted to the jury: 1. Did defendant negligently kill the plaintiff’s mule? 2. What was the value of the mule? The jury responded in the negative to the first issue. Judgment against the plaintiff' for costs.

Civil Action tried at Fall Term, 1882, of Halifax Superior Court, before MaKoy, J. The action was brought under the act. of 1874 — 75, ch. 240, § 2, to recover a penalty for the detention of one bale of cotton at the defendant’s depot in Enfield, N. C., from the third day of November, 1881, to the 10th day of the same month.

<p>Transcript — Railroad—Agent and Principal — Evidence.</p> <p>1. The transcript of a record on appeal must show the matters at issue in the case; they cannot be supplied by a reference to those in the record of another case.</p> <p>2. The declarations of an agent in reference to acts not within the scope of his agency, are not admissible to affect the principal; Therefore, in an action against a railroad company for the penalty for delay in shipment of local freight, it was held error to admit the declarations of a station agent, to the effect that the company, during a certain season, used most of its cars in transporting through freight — his agency being unconnected witli the through freight business.</p> <p>3. The clause in a bill of lading that the goods will be shipped “at the convenience of the company,” will not protect it from liability for an unreasonable delay.</p>

Civil ActioN tried at February Special Term, 1882, of WayNE Superior Court, before Avery, J. The plaintiff brought this action to recover his share of certain property alleged to have been sold bv the defendant’s testatrix, under the circumstances set out in the opinion. The defendant appealed from the judgment.

<p>Wills — Doctrine of Election.</p> <p>Where a testator expresses a manifest purpose of disposing of property of another, to whom the testator devises property of his own, it is immaterial whether he believed he had title and the right to will it; or, where the testator, having an undivided interest in the property, devises it specifically; in either case, the devisee or co-owner must elect between his interest in the same and any other interest he may take under the will.</p>

Civil ActioN tried at Fall Term, 1882, of New Hanover Superior Court, before MaeRae, J. Upon the death of Eli W. Hall iu the year 1865, several scripts purporting to contain his will, with certain successive codicils, all without date and all duly attested, except the last, in which he designated Edward T>.

<p>Wills, probate of — Devisee competent to prove holograph— Witness — Section 343.</p> <p>1. The probate of a will is conclusive until revoked by a direct proceeding in the probate court for that purpose; and a certified copy thereof is competent evidence under Bat. Rev., ch. 119, $ 40.</p> <p>2. A devisee under a holograph will is a competent witness to prove the will. The disqualification of interest is removed by the act of 1866, and section 10, chapter 119 of Battle’s Revisal, applies only to wills that have attesting witnesses, and to the attesting witness.</p> <p>3. The ruling in Mason v. McCormick,, 80 N. C., 244, in reference to incompetency under section 343 of the Code, in case the witness ever had an interest in the event of the action, approved.</p> <p>4. Where a witness is rilled out as incompetent, it is not necessary to set out what it was expecte.d to prove; but if the objection be to his competency to testify to certain definite matters, what he proposes to testify must appear, that the court may pass upon it.</p>

<p> Wills, ellipsis supplied. </p> <p>To carry out the general intention of the testator, the court supply an omitted word in the following clause of the will: “In case it should be more convenient to my beloved wife to have [sold] the land and even the negroes, the latter I suppose she ought to keep, as she will have two-thirds during widowhood and one-third in fee, she is at liberty to do so, as she will have ample money to purchase elsewhere.”</p>

Civijl, ActioN tried at Spring Term, 1883, of Alamance Superior Court, before Gilmer, J. John Crawford died, leaving a will which bears date October 19th, 1874, and has since been admitted to probate, containing the following clauses: “Item 5. I give and bequeath to my three nephews, John, Willis and Randall Mabry, four hundred dollars each, to them and their heirs forever.” “Item 8.

EjbctmeNt tried at Fall Term, 1881, of Iredell Superior - Court, before Seymour, J. The plaintiffs claim an undivided share in the land described in their complaint, and in the defendant’s possession, under the will of Stephen Parker, their grandfather, the dispositive provisions of which, so far as they assist in the interpretation of the clause whose meaning is in dispute, are as follows: 2.

INDICTMENT for bigamy tried at June Term, 1882, of Wake Superior Court, before Bennett, J. After verdict of guilty and before the judgment was pronounced, the judge resigned and the office became vacant. James C. MaoRae being appointed his successor, qualified, and presided at the same term, and upon motion of the solicitor, proceeded to judgment against the defendant, from which he appealed.

<p> Appeal in State Cases. </p> <p>1. It is the duty of the judge who tries a criminal action to make up the case on appeal.</p> <p>2. The rule laid down in the preceding case in reference to the duty of the appellant to be diligent in perfecting the appeal, approved.</p>

INDICTMENT for an affray tried at Fall Term, 1882, of Pas-quotank Superior Court, before Gilliam, J. The defendants, Coppersmith and Hayes, are charged with an affray, and each with making an assault upon the other with a deadly weapon. The jury found both guilty. Upon the trial it was shown that Coppersmith struck the other defendant with a small stick, inflicting no serious damage, whereupon the latter discharged a loaded pistol at his assailant.

INDICTMENT for an assault and battery tried at Fall Term, 1882, of CumbeelaND Superior Court, before Gilmer, J. The assault was made with a gun; the defendant was convicted, and upon judgment being pronounced against him, appealed to this court upon the ground of error committed in the charge of the court to the jury.

INDICTMENT for an assault and battery tried at Pall Term, 1882, of RICHMOND Superior Court, before Gilmer, J. The indictment charged that the assault was committed with a deadly weapon. (See State v. Nash, 86 N. C., 650).

INDICTMENT for larceny tried at Fall Term, 1882, of Mecjk-denbueg- Superior court, before Graves, J. There was a verdict of guilty, and a motion for a new trial. The motion was overruled and sentence pronounced by the court, from which the defendant appealed.

INDICTMENT for a misdemeanor tried at Spring Term, 1883, of Buncombe Superior Court, before Avery, J. The defendant was charged with a violation of the act of 1879, ch. 127, in carrying a pistol concealed about his person.

INDICTMENT for conspiracy tried at Fall Term, 1882, of Wake Superior Court, before McKoy, J. The defendants (with one Mack Cross, who was not on trial) are indicted in three counts: the first, for conspiring to commit rape upon the person of one Fidelia Upchurch; the second, for conspiring to commit the like offence upon one Effie Upchurch; and the third, for that “they did unlawfully conspire and agree together to commit rape, and, in pursuance and according to said…

<p>Evidence — Comments of Counsel.</p> <p>1. Evidence that another committed the offence of which the defendant was being tried is inadmissible. The defendant must show that he is innocent, not that another is guilty.</p> <p>2. Whether counsel should be stopped, in the use of improper language in addressing the jury, at the time, or in the charge to the jury, is matter of discretion with the judge. Remarks of counsel in this case are not objectionable.</p>

<p>INDICTMENT for assault and battery, removed from Lenoir county, and tried at Fall Term, 1882, of Duplin Superior Court, before Mac Rae, J.</p> <p>The defendant is charged with an assault and battery with intent to kill, committed upon one Bryan.</p> <p>As made by the evidence offered for the prosecution, the case is as follows: The parties accidentally met in the streets of Kins-ton, the defendant being‘partially intoxicated. Upon learning who the defendant was, Bryan asked him how he had come out in his difficulty with one Cox, to which he replied by asking “ what have you got to do with it? what is Cox to you ?” Bryan told him that Cox was a friend of his, but that he had only inquired of him from a desire to know' how their difficulty terminated. The defendant then began to curse Bryan, and upon his turning to leave, caught him by the shoulder and jerked him back, saying: “I want to know who in the hell you are, and what you’ve got to do with Cox?” and upon being answered as before, drew his pistol. Bryan said to him that he did not fear his pistol, but that he should avoid a difficulty as far as he could; whereupon the defendant accused him of having drawn a knife, but was assured that it was not so, and that he only had a small knife, with which he had been whittling. At the suggestion of a friend present, Bryan put up his knife, when the defendant began again to abuse him. A policeman come up, and learning what had transpired, laid his hand upon the defendant, and told him to consider himself under arrest. The defendant then said, “I don’t intend to be imposed upon by any such d — d son-of-a-bitcn,” which Bryan said he could not stand, and struck the defendant, who immediately shoved him back, and shot him in the side with the pistol.</p> <p>As made for the defendant, the case is as follows: The defendant passed two men in the street whom he did not know. After he had gotten some ten steps beyond them, he heard them talking low to themselves, and then one of them, who turned out to be Bryan, called to him so that he turned back. Bryan then said to him, “do you want to whip Cox,” to which he replied, “no, whenever I get ready to whip any one I’ll do so.” Bryan then declared that Cox was his friend, drew a knife, and said he would use it on the defendant if he fooled with him, or said he wanted to whip Cox. The parties then quarreled and cursed each other, Bryan having his knife in his hand and the defendant having his hand on his pistol. The policeman interfered, caught hold of the defendant and pushed him back', and told him to consider himself in arrest. He again cursed Bryan, and upon being stricken by him, shot him with the pistol. Defendant afterwards found that his coat had been cut with a knife. The defendant was examined as a witness in his own behalf, and upon his cross-examination was required to say, notwithstanding his objection, that he had been twice indicted for fighting and once for fornication and adultery; to which he excepted.</p> <p>One Walters was examined, and testified that just before the difficulty between the parties occurred, he saw the defendant in conversation with two colored men, and, as he turned off from them to cross the street, heard him say that he “would shoot some d — d white-livered son-of-a-bitch before he slept.” This was objected to by the defendant, but admitted as tending to show the reckless state of his mind; to which he excepted.</p> <p>Amongst other instructions asked for the defendant, the court was requested to say to the jury that if they should believe that the defendant, when he was held by the policeman and assaulted by Bryan, had reasonable grounds to believe that Bryan had a knife, and apprehended death or great bodily harm, he had a right to use a pistol or other weapon necessary to .his defence. This was refused, and the defendant excepted.</p> <p>The court charged the jury that if the defendant first used language to the prosecutor calculated to provoke a breach of the peace, so that the prosecutor struck him, and he then shot the prosecutor, he would be guilty; that if the defendant called the prosecutor a d — d son-of-a-bitch, those words were such as were calculated to provoke a breach of the peace, whether the policeman had his hand on the defendant at the time he uttered them or not; that if Bryan was advancing on defendant without provocation and with a knife, and the defendant was in danger of being killed or of sustaining great bodily harm, and to save himself, he shot the prosecutor, he would not be guilty, but even in that case, if the defendant had first used words calculated to provoke a blow, and did so, from the prosecutor, then the defendant ought to have retreated as far as he could with safety, and unless he did so, he would be guilty.</p> <p>After verdict and judgment against the defendant, he appealed, assigning for errors the exceptions taken to the evidence, and the refusal of the court to charge as asked. Other exceptions were taken, but they were expressly waived by counsel in this court.</p>

<p>Evidence — Declarations of Defendant — Judge’s Charge.</p> <p>1. The admission of incompetent testimony, unless objected to at the time or forbidden by statute, is not the subject of an exception at a later stage of the trial.</p> <p>•2. A defendant’s declarations will not be excluded upon the ground that the witness did not hear the whole of the conversation of which they form a part. (See preceding case for rule in reference to fragmentary evidence), o. In a joint trial for murder, it is the duty of the judge, if convinced that either prisoner is guilty of a less offence than that charged, to so instruct the jury, without regard to its effect upon the other prisoner. The assent of the solicitor given to a verdict of manslaughter as to one, the court in this case permitting it, is no expression of opinion as to the grade of the other’s offence.</p>

INDICTMENT for false pretence tried at Fall Terra, 1882, of Cumberland Superior Court, before Gilmer, J. The bill of indictment is as follows : “ The jurors for the state, upon their oath present, that John Dickson, late of the county of Cumberland, on the first day of March, 1882, with force and arms at and in the county aforesaid, devising and intending to cheat and defraud one John McRae of his goods, money, and property, unlawfully, knowingly and designedly did fals.ely…

<p>INDICTMENT for fornication and adultery tried at Fall Term, 1882, of Martin Superior Court, before Gilliam, J.</p> <p>The defendants appealed.</p>

<p>INDICTMENT for obstructing a public highway tried at Spring Term, 1882, of Sampson Superior Court, before Gilmer, J.</p> <p>Defendants appealed.</p>

<p>INDICTMENT for misdemeanor tried at Fall Term, 1882, of Pendes, Superior Court, before Gilmer, J.</p> <p>The indictment was preferred under the act of 1873-74, ch. 31, for disposing of crops at the time under the lien of a mortgage, given by the defendant to the prosecutor to secure advances.</p> <p>It was admitted that at the date of the mortgage, and at the date of the alleged disposition and use of the corn raised by the defendant and under the lien of said mortgage, and also at the date of the indictment, the defendant was under the age of twenty-one years. There was no evidence of any ratification by the defendant of the mortgage after he arrived at full age.</p> <p>The defendant asked the court to instruct the jury that the contract of the defendant being voidable, and the alleged removal occurring while he was still an infant, he was entitled to a verdict of not guilty. His Honor refused to give the instruction, and the defendant excepted. Verdict of guilty; judgment; appeal by defendant.</p>

INDICTMENT for an assault with intent to commit rape tried at Fall Term, 1882, of Union Superior Court, before Graves,J. The indictment is in substance as follows: The jurors, &c., present that Staton, colored, on the first day of October, 1882, with force and arms, &e., in and upon one Julia Edwards, a female, &c., then and there being, violently and feloniously did make an assault, and her, the said Julia, then and there did beat, wound and ill-treat, with intent her, the…

INDICTMENT tried at Fall Term, 1882, of RICHMOND Superior Court, before Gilmer, J. The indictment charged the defendant with burning an outhouse used as a store-house, in violation of the act of 1874-’75, ch. 228, and is in substance as follows: The jurors, &c., present that Roper (and others) did unlaw-full}'- and maliciously set fire to and burn a certain out-house used as a store-house, being in possession of C. D. Dowd, and the property of John P. Little, with intent…

INDICTMENT for embezzlement- tried at February Term, 1883, of New Hanover Criminal Court, before Meares, J. The jurors, &c., present that Jere Lanier, &c., on the 17th day of September, 1882, with force and arms, &c., being then and there employed as a servant to Addie P. McClammy, by virtue of his said employment, did then and there and whilst employed as aforesaid, receive and take into his possession certain money, to a large amount, to-wit, to the amount of seven dollars…

<p>Injury to stock in enclosure not surrounded by lawful fence— Carelessness supplies the place of criminal intent, when.</p> <p>On trial of an indictment for killing another’s stock in the defendant’s enclosure, not surrounded by a lawful fence, it appeared that the defendant recklessly shot at cattle in his corn field, to frighten and run them out, and killed the prosecutor’s mule, which at the time he did not see, the corn being very high ; Held, that he is criminally responsible. The carelessness with which the act was done supplies the place of criminal intent, whether the defendant had license from the owner of the cattle to shoot at them, or not.</p>

<p>Larceny — Presumptions—Recent Possession.</p> <p>1. Where the defendant is apprehended immediately after the larceny, with the stolen goods in his possession, it .is a molml presumption of his having stolen them, and the court should instruct the jury that, in law, he is guilty.</p> <p>2. Where he is found in possession some time after the larceny, and refuses to account therefor, it is a ’probable presumption, and a question of fact for the jury.</p> <p>3. But where he is not found in possession recently after the loss (here eighteen months), it is a light or rash presumption, and not sufficient to warrant conviction, unless the attending circumstances tend to implicate the defendant in the larceny, as where he makes false statements in respect to his possession.</p>

MOTION to dismiss the proceeding for want of jurisdiction, heard at January Special Term, 1882, of SAMPSON Superior Court, before McKoy, J. The defendant, Oates, was arrested in February, 1881, by virtue of a peace warrant issued by a justice of the peace, and upon au investigation of the matters charged therein, he was required to enter into a recognizance in the sum of three hundred dollars, with condition to keep the peace for six months towards all the citizens of the…

<p>INDICTMENT for murder tried at Spring Term, 1882, of Wake Superior Court, before Bennett, J.</p> <p>On the 17th of February, 1882, the bill of indictment was returned into court, “a true bill,” by the grand jury, and on the next day, in the absence of one of the prisoner’s counsel and befoi’e either of his counsel, assigned at the time of prisoner’s arraignment, had an opportunity to examine the record, the prisoner was arraigned and pleaded not guilty — one of his counsel who was present, not asking for time — and the case was set for trial on the first day of March, 1882, when the prisoner, through his counsel, moved to be allowed to withdraw' his plea of not guilty, and to enter a plea in abatement. This was refused by the court for reason that the grand jury had been detained a week for any motion to be made in the case, and if this motion had been made in the interval, between the arraignment and the discharge of the grand jury, it would have been allowed; but none having been made and the grand jury being discharged, the motion could not be allowed. Prisoner excepted.</p> <p>Counsel then moved to quash the bill upon several grounds, which was disallowed, and the prisoner excepted.</p> <p>In forming the jury, the regular venire having been exhausted, the court ordered several special venires of talesmen to be summoned — 1. fifty; 2. twenty-four; 3. twelve — and during the call of the first, the solicitor was allowed to stand aside three jurors until the whole number, then in the box, was drawn and tendered; on the call of the second, one juror was stood aside until the panel was exhausted. The prisoner excepted to the ruling of the court.</p> <p>There was much evidence introduced by the state, substantially as follows: On the 14th of February, 1882, the deceased, A. H. Blake, accompanied by John Q,. Watkins, arrested the prisoner by virtue of a state’s warrant which Blake was specially authorized to execute. The warrant was read to the prisoner by Blake, who told him that he arrested him under its authority, which was as follows:</p> <p>“Burwell Freeman, being sworn, complains on oath to H. Watkins, one of the justices of the peace of said county, that Henry Jones did, on the 31st of January, 1882, steal, take and carry away one ox belonging to the said Burwell Freeman, and this complainant further says, that said Henry Jones did maliciously commit the said offence, and he prays that a proper warrant issue, to the end that the person accused be brought before a magistrate to be dealt with according to law.” (Signed by Freeman, and sworn to before the justice on the 13th of February, 1882).</p> <p> </p> <p> To any constable or other lawful officer of Wake county: </p> <p>Whereas, complaint has been made before me this day, on the oath of' Burwell Freeman, that Henry Jones did, on the 31st day of January, 1882, with force and arms, at and in the county aforesaid, steal, take and carry away one ox, against the jjeace and dignity of the state : These are, therefore, to command you to forthwith apprehend the said Henry Jones, and have him before me, at my house, then and there to answer the said charge, and be dealt with according to law. Given under my hand and seal, this the 13th of February, 1882.” (Signed by the justice). Endorsed as follows: “ For the lack of an officer, I hereby deputize A. H. Blake to serve the within warrant.” (Signed by the justice).</p> <p>After the prisoner's arrest, while going to a neighbor’s house, not far distant from the prisoner’s house, he attempted to make his escape by flight. The deceased ordered him to stop; he ran and was pursued by deceased about four hundred yards; the deceased fired at him three pistol shots, but without effect; prisoner was overtaken and they went with him to his house; on arriving there, the prisoner went in and put on his Sunday clothes, and then went in the kitchen to eat his breakfast, and after-wards came out and took a chair and sat down-in the door of the house, wdth his head down. Blake told him they must go, as the trial was at nine o’clock, and prisoner said he was not going until Henrietta (his wife) came, if it was a month. Blake then sent John Watkins to a store, not far, distant, for help. When Watkins left, the deceased was sitting on a stump about thirty feet from the house, holding a pistol in each hand, uncocked, with the muzzles towards the ground, the same exhibited on the trial.</p> <p>The report of a gun was heard in the direction of prisoner’s house, about a half hour after Blake shot at prisoner. Upon the return of Watkins, and one Peebles who came with him, to the aid of Blake, he was found lying dead (shot in the eyes and head) about six feet directly in front of the house and eight feet from a crack in the house near the door. The crack was about twelve inches long and about three-quarters of an inch wide, one of the logs of the house being powder-soiled and torn with shot. About thirty feet from the house there was a dogwood tree, the bark of which was freshly torn with shot; and the deceased was lying in a direct line between the house and the tree.</p> <p>The door of the house was open when Watkins left to go to the store, but when he returned it was shut and the prisoner gone, and there were no pistols about the body of the deceased. Upon entering the house, a musket was found in one of the corners, bearing signs of having been recently fired, and the smell of gunpowder was perceptible in the house, as soon as the door %vas opened. There were no signs about the house of pistol balls having been "fired into it, or inside of it.</p> <p>While under arrest, the prisoner said if he got clear some one would have to die; and while in jail, when asked by the justice who issued the warrant, why he bad done as he did, his reply was, “nothing but meanness.”</p> <p>There was evidence that on the morning after the homicide a horse belonging to one of the neighbors was missing, which evidence was objected to by prisoner, but allowed by the court. The horse was found a day or two afterwards at Enfield in Halifax county, when the prisoner was arrested, and the two pistols, belonging to deceased, found loaded in his possession.-</p> <p>While the prisoner was under arrest, on his re-capture and return to Raleigh, he said he did not think the deceased had the right to arrest him, that he did not wish to be taken, that deceased shot at him twice, and he fired at deceased and hit him in the face, and that he was in the house when he shot the deceased.</p> <p>The counsel for prisoner asked for the following special instructions:</p> <p>1. The particularity required in indictments caimot be dispensed with in warrants, and if a justice issue a warrant which does not on its face contain all the charge, and all the circumstances essential to its legal form and constitution, in charging a criminal offence, such a warrant is void.</p> <p>2. An officer acting under a void warrant is a trespasser, and must take notice of its character at his peril; and if he, in executing it, kill the prisoner with a deadly weapon, the fact that prisoner was attempting to make his escape by flight only, is no justification, and the killing is murder. •</p> <p>3. An officer acting under such warrant, or one which on its face does not charge any criminal offence for which the prisoner could be held for trial or punished, is bound to take notice of such defects at his peril; and if prisoner is not armed and not in actual resistance, and attempts to escape by flight only, and under such circumstances the officer shoots and discharges a pistol three or more times at prisoner, the officer, by the excessive force used and wanton abuse of authority, forfeits his rights to protection as an officer; and the prisoner may, if he has reasonable apprehension that great-bodily harm will be done him by such officer, slay the officer, and the killing will be manslaughter, at most.</p> <p>4. If a warrant is void, it affords no protection to the officer attempting to. execute it, and if its execution is resisted by the prisoner, he is guilty of no offence against the law, though in doing so the person of the officer is assaulted.</p> <p>5. No officer has the right to slay a prisoner, for attempting to escape by flight only, except in capital felonies.</p> <p>6. If an officer for no other cause than the flight, the warrant being void and the crime charged not a capital felony, shoot at prisoner several times with a pistol, and prisoner-kill him through reasonable fear, it is manslaughter; whether the fear was reasonable or not is a question for the jury, and they must put themselves in the shoes of the prisoner and consider all the circumstances at the time of the killing.</p> <p>7. If, in this case, the deceased by shooting at the prisoner caused him, through fear, alarm or cowardice, to be under the impression that great bodily harm was about to be done to him, and under such impression he killed the deceased, he would not be guilty of murder or manslaughter.</p> <p>8. Or if the deceased by shooting at prisoner several times, he being under arrest under a void warrant, and he did nothing but attempt to escape by flight, caused the prisoner to be under the impression or belief, which was caused by the fear, alarm or cowardice put in operation by the shooting, that great bodily harm was about to be done him, and under such impression or belief he killed the deceased, he is only guilty of manslaughter.</p> <p>9. The reasonableness of such impression or belief is not that of the jury, but of the prisoner.</p> <p>10. That to constitute Blake, the deceased, a lawful officer, he must have been sworn.</p> <p>11. If Blake was not a known officer, he must have shown his authority to act.</p> <p>12. That his authority was not shown by what he declared, but the authority which he has, is his justification.</p> <p>13. If prisoner did not know Blake was an officer, and he was not a known officer and did not show his authority, the prisoner is not guilty of murder.</p> <p>14. To justify the killing of a felon for the purpose of arresting him, the slayer must not only show a felony actually committed, but also that he avowed his object to arrest and the felon refused to submit.</p> <p>15. If the jury should find from the evidence that deceased was, at the time of the fatal shot (if they find that prisoner fired it), maliciously or unlawfully committing an assault upon the prisoner with a deadly weapon, and the prisoner had reasonable ground to believe that his life was in danger, or that- he was to be subjected to serious bodily harm, the prisoner is not guilty.</p> <p>16. If at the time the prisoner fired the fatal shot (if the jury find he did fire it) he did not know and deceased had not made known to him that he was an officer, and the deceased was not in fact legally authorized to arrest him, the prisoner is guilty of manslaughter at most.</p> <p>17. If the prisoner believed and had reason to believe, that although the deceased did not intend to take his life, yet did intend and was about to do him some enormous bodily harm, such as maim for example, and under this reasonable belief he killed the deceased, the offence is homicide se defendendo, and excusable.</p> <p>18. If deceased was acting under a void warrant, and it did not appear that the occasion was an extraordinary one, he was not in any sense an officer.</p> <p>19. If the warrant is void, the appointment is void.</p> <p>20. An officer has the right to refuse to execute any warrant, precept or mandate, which is void on its face.</p> <p>His Honor refused to give the instructions, and proceeded to give his charge to the jury at considerable length, which was excepted to by the prisoner’s counsel, but they failed to specify any ground of error!</p> <p>The prisoner was found guilty of murder, and appealed from the judgment of the court.</p>

Peace Warrant tried at Fall Term, 1881, of JoNES Superior Court, before Shipp, J. The judgment was that the defendant pay the costs of the prosecution, and he appealed. The defendant was not represented by counsel in this court. The Attorney-General submitted the case upon the record.

MOTION by defendant sureties to set aside a judgment, heard at Fall Term, 1882, of DuplIN Superior Court, before MacRae, J. The defendant having been tried aud convicted upon one criminal charge, and there being another depending against him, at fall term, 1880, of Duplin superior court, was, by its order, committed to the custody of the sheriff, and lie was directed, on the defendant’s giving two bonds, one in the penal sum of $500 for his appearance at the next term in the…

INDICTMENT for obstructing a highway tried at Fall Term, 1882, of Moose Superior Court, before Gilmer, J. The defendant is indicted for obstructing a public highway, in the county of Moore, leading from Sanford to the Cool Springs.

INDICTMENT for perjury, removed from Wilson, and tried at Fall Term, 1881, of Edgecombe Superior Court, before Gil-mer, J. Verdict of guilty; judgment; appeal by defendant.

<p>CRIMINAL ACTION commenced before the mayor of a city, and heard on appeal at Fall Term, 1882, of Wayne Superior Court, before MacRae, J.</p>

<p> Witnesses, examination of. </p> <p>A party cannot contradict his own witness; where the state called and examined a witness, who was afterwards put upon the stand and examined by the defendant, it was held inadmissible for the state on cross-examination to discredit him.</p>

INDICTMENT for forgery tried at January Term, 1883, of Wake Superior Court, before MeKoy, J, On the arraignment of the defendant, his counsel moved to quash the indictment on the ground that the witnesses, upon whose testimony before the grand jury the bill was found, were sworn before the clerk and not by their foreman, who alone, it was insisted, is authorized under chapter 12 of the acts of 1879, to administer the oath.

<p>from Mitchell:</p>