Volume 89 — North Carolina Reports

<p>EJECTMENT tried at Spring Term, 1882, of Hertford Superior Court, before McKoy, J.</p> <p>Verdict and judgment for plaintiff, appeal by defendants.</p>

<p>Civil ACTION tried at Fall Term, 1883, of Wake Superior Court, before Shepherd, J.</p> <p>The action was brought upon a promissory note, of which the following is a copy:</p> <p>We promise to pay to the order of W. W. Vass, 1 year after date, the sum of two hundred and fifty dollars for money borrowed — note to draw eight per cent, interest after maturity. Dated, Raleigh, February 13, 1880, and signed by Leroy G. Bagley, W. H. Bagley and N. J. Riddick.</p> <p>W. H. Bagley denied the execution of the note, and the defendant Riddick admitted its execution, but averred that the note had been altered in a material part after having been signed by him.</p> <p>The following issues were submitted to the jury:</p> <p>1. Was the note altered after the signature and delivery of Riddick, and without his consent, so as to make it read “two hundred and fifty” instead of “onehundred and fifty” dollars. Ans. — No.</p> <p>2. Was the note altered after the signature and delivery of Riddick, and without his consent, by inserting the words “ 1 year.” Ans. — No.</p> <p>3. Did W. H. Bagley execute the note. Ans. — No.</p> <p>Upon this finding, and the admissions of Riddick, the court adjudged that the plaintiff recover of him the amount of the note, with interest at eight per cent., and that W. H. Bagley go without day. From this judgment, Riddick appealed.</p>

<p>MotioN to set asido a sale beard at June Term, 1883, of Wake Superior Court, before Philips, J.</p> <p>The action, in which the motion was made, was brought by the plaintiff against W. H. Arrington and wife Pattie, to foreclose a mortgage.</p> <p>On the 1st of November, 1872, the defendant W. H. Arring-ton borrowed from B. E. Moore the sum of $2,140, and gave his bond for the same; and at the same time he and his said wife executed to Moore a mortgage on the house and lot, situate in the city of Raleigh, and described in the pleadings, to secure the payment of the bond. The house and lot were the individual property of said Pattie Arrington, which she inherited from an ancestor.</p> <p>Sundry payments were made on the bond while held by B. F. Moore, reducing the amount due thereon to $1,242.60 on the 10th of December, 1877, on which day it was assigned for value, and without recourse, by Moore to the plaintiff "Vass.</p> <p>The mortgage deed contained a stipulation that if the bond and interest accrued thereon shall not be paid as the same shall become due, together with all the taxes assessed on the property, then the said Moore should have power to sell the premises, for cash, after twenty days’ advertisement in some newspaper published in the city of Raleigh, and apply the proceeds to the payment of the bond and interest, the unpaid taxes, costs of executing the mortgage, and five per cent, commissions on the proceeds of sale.</p> <p>B. F. Moore died intestate of said property in November, 1878, and by proceedings regularly had in the probate court of Wake, the defendant John Gatling was appointed trustee of the mortgage in January, 1882, in respect to the property therein conveyed. The plaintiff called upon Gatling to sell the property under the power given in the mortgage, but he declined to do so without a judgment of the superior court authorizing him to make the sale. Hence this action was brought demanding a sale and appropriation of the proceeds thereof to the payment of the bond and interest, and all the incidental expenses incurred by the plaintiff, or otherwise arising under the stipulations and covenants contained in the deed of mortgage.</p> <p>Process returnable to spring term, 1882, of Wake superior court, ’ was served upon the defendants W. H. Arrington and wife, and accepted by the defendant Gatling. AV. IT. Arring-ton then alone answered the complaint, admitting in the main the facts alleged, but contended that he was entitled to the excess after satisfying the plaintiff’s claims for money advanced for the use of the defendant Pattie Arrington, and as tenant by the courtesy. At said term it was adjudged that the land be sold by said trustee as commissioner, after thirty days’ advertisement, at any time after the 1st day of May, 1882, for cash, and that the trustee execute a deed to the purchaser and report his action to the next term of the court.</p> <p>The report ivas made to June term, 1883, that the property was sold for cash at public sale on the first Monday in May, 1883, when Pattie Arrington became the last and highest bidder in the sum of $5,050, but as she failed to comply with the bid, the property was again,, at 3:30 i>. M. of the same day, offered for sale upon the same terms, when W. N. H. Smith was the last and highest bidder in the sum of $5,000; and at that time and at the time of the sale, there was due on said bond the sum of $79.08 for state, county and city taxes. The commissioner further reported that the land, in his opinion, formed after diligent inquiry of judges of the .value of Raleigh property, brought a full and fair price, and recommended the confirmation of the sale.</p> <p>Thereupon Pattic Arrington, who it was admitted was the owner of the land in fee simple, subject to the mortgage, opposed the confirmation of the sale, and moved that it be set aside upon the ground that the property did not bring a fair price; and she also moved that the commissioner Gatling, be directed to sell the land in parcels, and to sell only so much as was necessary to pay the claims under the mortgage and the costs of the action, which it was admitted would not exceed $2,500. Besides her own, she offered the affidavits of four citizens of Raleigh, stating that the lot did not bring a fair price, and that if sold in parcels it would bring considerably more than the sum of $5,000.</p> <p>In opposition to the motion, the other parties to the action and the purchaser (Smith) offered, in addition to the opinion of the commissioner, the testimony of some six witnesses, also citizens of Raleigh, two of whom were recent assessors of the real estate in the township of Raleigh, and had assessed the said house and lot at $3,500, as its value at a cash sale; and they both stated that $5,000 was a fair price. All of the other witnesses testified to the same effect, and the most of them expressed the opinion, that if W. N. H. Smith, who owned the adjoining lot, did not bid, the property would not bring as much as $5,000 upon a resale, aud that the purchaser could not now get for it as much as he gave. The witnesses were divided in opinion as to whether the property would bring as much as $5,000 if cut- up into lots.</p> <p>His Honor overruled the motion and rendered judgment, among other things, confirming the sale, and directing the commissioner to make title-to the purchaser upon payment of the sum bid, and also adjudged that the commissioner pay out of the purchase money the taxes which attached to the land on the 1st of June, 1883. The feme defendant excepted to the ruling, and appealed from the judgment.</p>

Civil Actioh tried at Fall Term, 1882, of Guilford Superior Court, before Shipp, J. Tin's action was brought to enjoin the defendant James Sloan from selling certain lands conveyed to him, as trustee, by the plaintiffs. The facts are stated in the opinion of this court. There was judgment for defendants, from which the plaintiffs appealed. (The appeal not being perfected, the plaintiffs applied' for and obtained a writ of certiorari. See Wiley v. Lineberry, 88 N. C., 68).

Ejectment tried at Fall Term, 1883, of Rutherford Superior Court, before Shipp, J. Both parties claimed title to the land in controversy under J. M. Justice. The plaintiff claimed under a sheriff’s sale and deed, by virtue of an execution from the superior court of Henderson county, issued on the 5th day of November, 1875, upon a judgment rendered in favor of Albert Jones in the superior court of Henderson county, and docketed in the superior court of Rutherford county.

PROCEEDING- in contempt heard at Fall Term, 1882, of New Hanover Superior Court, before MacRae, J. ■ The court imposed a Sue of fifty dollars, and from this judgment the respondent appealed.

<p> Contempt, proceeding in. </p> <p>A rule was obtained for alleged contempt in not performing' a judgment of court, based upon an affidavit declaring a belief that the respondent “is able and has sufficient means” to do so, but sets .forth no facts upon which such belief is grounded ; and in answer, the respondent makes affidavit that his inability to perform the judgment results from his misfortune and necessitous condition, and that he has no intention or desire to injure the opposing party or disobey the mandate of the court; Held, that the rule must be discharged.</p> <p>(Pain v. Pain, 80 N. C., 322; Baker v. Cordon, S6 N. C., 110, cited and approved).</p>

EjectmeNT tried at Pall Term, 1883, of Jones Superior Court, before Philips, J. The plaintiff excepted to the ruling of the court below, and submitted to a judgment of nonsuit and appealed. The case on appeal states that the same was settled by the judge, in consequence of the fact that the counsel for the respective parties were unable to agree upon a statement.

Civil Action removed from Davidson and tried at July Special Term, 1882, of Guilfokd Superior Court, before Gilliam, J. The plaintiffs are the lieirs of Henry Conrad and the defendants are the administrators of John M. Morehead.

Civil Action tried on exceptions to a referee’s report, at Fall Term, 1883, of Wake Superior Court, before Shepherd‘ J. The purpose of the suit was to effect a settlement with the defendant, and the referee T. M. Argo found the following facts, in substance: The plaintiff became a member of the Raleigh Co-operative Land and Building Association in 1869, and in •June of that year borrowed from the defendant the sum of $199, to secure which, ho gave his note for $400, bearing…

MotioN to set aside a judgment upon the ground of excusable neglect, under section 133 of the Code, heard at Fall Term, 1882, of HauNETT Superior Court, before Shipp, J. The following facts were found by the court: A summons in the ease was issued on the 26th of December, 1879, returnable on the third Monday in February, 1880, and served on defendants on the 15th of January, 1880, at which time the defendants applied to Thos.

Civil ActioN tried at Pall Term, 1882, of Halifax Superior Court, before McKoy, J. The action was brought to recover damages for an assault and-battery alleged to have been committed by the defendant upon the plaintiff. The defendant denied the assault as charged in-the complaint, and pleaded that he acted in self-defence. The following issues were submitted to the jury: 1. Did the defendant cut the plaintiff on the face with a knife? Answer — ’“Yes.” 2.

PROCEEDING in summary judgment against a sheriff for failure to pay state tax in the time allowed by law, commenced before the clerk, and heard at June Term, 1 883, of Wake Superior Court, before Philips, J. On motion before the clerk of the superior court of Wake, judgment was rendered against the defendant sheriff of Perqui-mans county, and the sureties upon his bond, under the provisions of the revenue-act, for failure to pay taxes according to law.

The plaintiff corporation was authorized by statute (acts of 1879, ch. 149), to commence and prosecute in the superior court of Cumberland county, a special proceeding for the purpose of equalizing the benefits accrued and accruing to the persons owning lands so situated as to be enhanced in value by reason of the work done, or to be done by said corporation, in pursuance of its chartered privileges.

Civil ActioN tried upon exceptions to the report of a referee, at Fall Term, 1882, of BruNswick Superior Court, before Gilmer, J. Plaintiff appealed from the judgment overruling bis exceptions.

PETITION for removal of cause to the circuit court of the-United States, heard at January Term, 1883, of Wake Superior court, before McKoy, J. The removal was asked by the Virginia Midland railroad company, one of the defendants, and an appeal was taken from the judgment refusing the motion.

MotioN to vacate an order of attachment heard at Spring Term, 1883, of UNION Superior Court, before Shipp, J. The plaintiff brought this action before a justice of the peace in the county of Union on the 31st day of January, 1883, and sued out a warrant of attachment therein, which was duly levied upon the property of the defendant.

<p>Sheriff- — Executions—Lien of Judgment.</p> <p>1. A sheriff is liable upon his official bond for a failure to apply proceeds of sale of debtor’s land in payment of an execution, in his hands at the time of sale, issued upon a judgment having the prior lien.</p> <p>2. The lien upon land acquired by docketing- a judgment cannot be displaced by one subsequently acquired. (The rights of the party under the judgment and execution of this court, were lost by not issuing alias executions).</p> <p>(Rhyne v. McKee, 73 N. C., 259; Perry v. Híorris, 05 N. C., 221; Isler v. Col-grove, 75 N. C., 334; Cannon v. Parker, 81 N. C., 320; Pasour v. Rhyne, 82 it. C., 149; Whitehead v. Latham, 83 N. C., 232; Worsley v. Bryan, 80 N. C., 343, cited and approved).</p>

<p> Receivers, token appointed pendente lite. </p> <p>A receiver will not be appointed, pendente lite, upon a mere allegation that the party has reason to believe the property in dispute will be wasted or destroyed. The application in such case must state the grounds of apprehension, and the judge determines the reasonableness thereof upon the facts found by him.</p> <p>{Twilty v. Logan, 80 N. C., 69; Hughes v. Person, 63 N. C., 548; iVood v. Harrell, 74 N. C., 338, cited and approved).</p>

Civil Action heard on report of a referee, at Spring Term, 1883, of Joi-iNSTON Superior Court, before Mac Rae, J. The solicitor for the state brought an action under the statute in the name of the state on the relation of himself against William F. Atkinson, guardian of the plaintiff John A. Atkinson, to secure the estate of bis ward in his hands.

<p>Appeae from an order made at Fall Term, 1882, of RICHMOND Superior Court, by Gilmer, J.</p> <p>This was an action of claim and delivery, and the plaintiff, on the day of suing out his summons, made the affidavit required by section 177 of the Code of Civil Procedure before an acting deputy of the clerk of the superior court of Richmond county, who endorsed thereon an order directed to the sheriff requiring him to take possession of the property described in the affidavit and deliver it to the plaintiff. The seizure was made and the cotton, the property claimed, redelivered to the defendant on his entering into bond under the provisions of section 181.</p> <p>At fall term, to which the summons was returnable, the court adjudged “that the order of seizure issued by the deputy clerk of Richmond county on the 25th October, 1882, be vacated and dismissed,” and from this ruling the plaintiff appeals.</p>

<p>Bankruptcy — Possibility coupled with cm interest — Equitable - counter-claim.</p> <p>1. The contingent interest of a bankrupt, in real and personal property, passes to and vests in his assignee.</p> <p>2. Contingent remainders, executory devises, and other possibilities coupled with an interest, are assignable.</p> <p>3. Equitable countei--clairn of defendant is sufficient to defeat an action of ejectment.</p> <p>(Fortescue v. Satterthwaite, 1 Ired., 5C6 ; Watson v. Dodd, G8 N. C., 528; Slilh v. Lookdbill, 76 N. C., 465; Farmer v. Daniel, 82 N. C., 152, cited and approved).</p>

EJECTMENT tried at Spring Term, 18S2, of CUMBERLAND Superior Court, before Shipp, J-. The defendant first filed an answer to the plaintiff’s complaint as follows: 1. That the first article therein contained is not true. 2. That so much of the second article of the plaintiff’s complaint as alleges that the defendant is in possession of the fifteen acres therein described is admitted, but denies that he wrongfully withholds the joossession of the same.

MOTION to set aside a judgment heard at Eall Term, 1882, of CUMBERLAND Superior Court, before Gilmer, J. This action, upon a promissory note given by Hawley & Lee, was begun in April, 1867, against the surviving partner Lee, and the defendant Sarah E. Hawley, administratrix of the deceased partner, and at the return term of the superior court of law of Cumberland, the administratrix entered the plea of fully administered.

<p>Contract, damages for breach of — Evidence of value of services— Quantum Meruit.</p> <p>Where the plaintiff; by exercise of his right of election, rescinded his contract with the defendant, and brought suit for damages for a breach thereof, it was held competent for the plaintiff to show, as upon a quantum meruit, what was agreed to be paid under the contract for the services of himself and his employees, in addition to the value of his personal labor, actual outlay and liability in the prosecution of the work, as bearing on the question of the measure of damages. See same case, 82 N. C., 252.</p> <p>(Dula v. Cowles, 7 Jones, 290; Russell v. Stewart, 64 N. C., 487; Faw v. Whit-tington, 72 N. G., 321'; Houston v. Starnes, 12 Ired., 313, cited and approved).</p>

<p>MOTION by defendant to dismiss the appeal, heard at October Term, ,1883, óf The Supreme Court.</p>

Civil ActioN tried upon exceptions to a referee’s report, beard at Fall Term, 1882, of Moore Superior Court, before Gilmer, J. The defendant G. A. MacRae was elected treasurer of Moore county in August, 1872, and duly qualified on the 2d day of September, 1872, and his term of office expired on the 4th day of September, 1874.

Civm ActioN tried at Spring Term, 1882, of Moore Superior Court, before Shipp, J. The plaintiff brought this action to fall term, 1876, of the superior court of Moore county against the defendant B. J. Morris, to recover the money specified in a bond dated the 6th day of March, 1874, for $617.

Tn the year 1842, the town of Albemarle, the county-seat of Stanly county, was laid off into lots by the proper authorities according to law, and in the plat of the town there is a public square on which-the court-house was erected. Other lots were sold to individuals and the money realized paid into the county treasury.

Civid ACTION tried at Spring Term, 1883, of RICHMOND Superior Court, before MaeRae, J. The plaintiff brought this action for the recovery of a mule. The facts are stated in the opinion. Verdict and judgment in favor of the plaintiff; appeal by defendant.

<p>Divorce and Alimony — Findings of Fact — Appeal.</p> <p>1. In an application for alimony pendente Hie, the facts set forth in the complaint must be found by the judge to be true, in order to the relief demanded, and must be stated in the record.</p> <p>2. Whether the wife, in such case, is entitled to alimony, is a question of law, upon the facts found, and reviewable on appeal' by either party.</p> <p>( Wilson v. Wilson, 2 Dev. & Bat., 377 ; Harp v. Harp, 1 Jones’ Kq., 118; Taylor v. Taylor, 1 Jones, 828; Schonvjald v. Schonwald, Phil. Kq., 215; Simmons v. Simmons, lb., 03; Lynch, v. Lynch, Ih., 40; Hodges v. ITodges, 82 N. C., 122, cited and approved).</p>

Civil ACTION for divorce a mensa et thoro heard afc Spring Term, 1883, of Mitchell Superior Court, before Gudger, J. Upon the complaint and affidavit of the plaintiff, His Honor made an order for alimony pendente lite, and thereupon the defendant moved to vacate the order upon the ground of a want of notice to him, and the court sustained the motion.

Civil Actiox in nature of quo warranto tried at Spring Term, 1883, of Halifax Superior Court, before Philips, J. At a regular election held in November, 1882, in and for the county of Halifax, the relator was chosen by a majority of the votes cast to the office of register of deeds, and it Aras so declared by the county canvassers.

Civil Action in which application is made for the writ of mandamus, heard at Chambers in Halifax on the 10th of May, 1883, before Philips, J. The application for the writ was refused, and the plaintiff appealed.

Civil, ActioN in which application is made for the writ of mandamus heard at June Term, 1883, of Wake Superior Court, before Philips, J. The plaintiff was elected an alderman of the city of Raleigh, and asked to be restored to the office from which he was removed by the defendants, but the court, being of opinion that T. J. Bashford, who had been elected by the board of aldermen, in place of the plaintiff, was a necessary party to the suit, and that the question of title to…

<p>Civjx ACTION in which application is made for the writ of mandamus, heard at Fall Term, 1883, of Wake Superior Court,, before Shepherd, J.</p> <p>The plaintiff was elected an alderman of the city of Raleigh, and asked to be restored to the office from which he was'removed by the defendants. It was found by the jury, upon issues submitted to them : 1. That he was sworn and inducted into office on the 8th of May, 1883. 2. That he was wrongfully obstructed by defendants in the exercise and discharge of the functions of his office. 3. And that the plaintiff, on the first Monday in May, 1883, hold and exercised an office or place of trust or profit under the government of the United States. A further statement of the facts appears in-the opinion.</p> <p>Upon this verdict, and the admission, of plaintiff that he still holds the office or place as found in the above issue, the court adjudged that, the writ of mandamus be refused, and the plaintiff appealed.</p>

<p>Jurisdiction — Landlord and Tenant — Sub-Letting.</p> <p>1. The jurisdiction conferred upon justices of the peace to try civil actions, where the property in controversy does not exceed fifty dollars, is concurrent with that possessed by the superior court.</p> <p>2. An action for damages for removing a crop is cognizable in the superior court. The special jurisdiction of justices of the peace under the landlord and tenant act (1876-77, ch. 283) does not extend to torts, but is confined to actions for enforcing contracts.</p> <p>3. The landlord’s right to the crop to secure payment of rent is not impaired by the sub-letting of his tenant. The sub-tenant’s crop may thereby be subjected to a double lieu, that of the landlord and that, of his immediate lessor, but the lien of the landlord is paramount.</p> <p>{Belcher v. Orimsley, 88 N. C.. 88, cited and approved.)</p>

Civil ActioN tried at Spi'ing Term, 1883, of Nici-imoND Superior Court, before MaeEae, J. The record presents this case: In the month of January, 1881, the plaintiff leased to the defendant a farm, to cultivate and gather the crop therefrom during that year; and the defendant agreed to pay to the plaintiff by the first day of October of that year, as rent for the farm, four hundred and fifty pounds of good merchantable lint cotton.

<p>Civil Actiox tried at Spring Term, 1883, of Beaufort Superior Court, before Shepherd,- J.</p> <p>The action was commenced before a justice of the peace, under the landlord and 'tenant act, to recover possession of certain-rooms of a house, situated in the town of Washington, from the defendant and one A. T. Waters, upon both of whom notice to quit had been served. The plaintiff recovered judgment before the justice, and Roberts alone appealed to the superior court.</p> <p>The premises in question consisted of a dwelling-house, a barroom and a store.</p> <p>The defendant denied that he was in any sense the tenant of the plaintiff, and insisted that the notice to quit should have been given him by his immediate lessor, A. T. Waters, and not by the plaintiff and’ that the lease from the plaintiff to A. T. Waters, under whom he claimed, had not expired.</p> <p>The following issues were agreed upon and submitted to the jury:</p> <p>1. Was A. T. Waters a tenant by the month of the plaintiff? Ans. — Yes.</p> <p>2. What rent per month is plaintiff entitled to? Ans. — Seven dollars.</p> <p>On the trial, the plaintiff testified that on the first of January, 1882, he leased the whole of the premises to A. T. Waters at $16.66§ per month, and that the lease was “by the month and the rent payable monthly”; that on the 12th of January, 1888, A. T. Waters, who had been occupying two of the rooms in the building as a bar, sold his stock to the defendant Roberts; and admitted that Roberts purchased and acquired by said sale all the interest of A. T. Waters in the rooms occupied by him as a bar; that A. T. Waters paid him rent for the year 1881, and for each month since; that A. T. Waters rented one room in the building for the year 1882 to one Farrow, who still occupies it, but the witness did not know the terms of the lease.</p> <p>The defendant, with the view of contradicting the terms of the lease from the plaintiff to A. T. Waters, as stated by the plaintiff in his examination, proposed to testify as to whether he (Roberts) rented for the whole year of A. T. Waters at the time he bought his stock. The plaintiff’s counsel admitted that the defendant acquired whatever interest A. T. Waters had in the lease, and objected to the testimony on the ground of irrelevancy.</p> <p>The objection was sustained, and the defendant excepted. The defendant, for the same purpose, offered to prove that Farrow-rented the room occupied by him from A. T. Waters by the year. To this the plaintiff also objected: objection sustained, and defendant excepted.</p> <p>The defendant’s counsel then proposed to argue the terms of the lease from Waters to Farrow-, but he was stopped by the court, and the defendant excepted.</p> <p>The jury found in favor of the plaintiff, upon the issues as above set out, and the defendant appealed from the judgment rendered thereon.</p>

Civid ActioN tried at Fall Term, 1882, of New Hanover •Superior Court, before Mac'Rae, J. Tin's was an action of claim and delivery to recover possession of a turpentine still and its appurtenances, and for damages for the detention of the same. The plaintiff1 was nonsuited and •appealed to this court.

Special ProceediNü heard at Spring Term, 1883, of Haei-eax Superior Court, before Philips, J. This proceeding was instituted by the plaintiffs, Louis M. Alsbrook, Henry Billups and wife, Laura L. Billups and Alma M. Howell (by her next- friend, the said Alsbrook), against Sarah C. Reid, on the 1st day of September, 1882, before the clerk of the superior court, to sell land for partition, and the same was heard by him upon the following case agreed: 1.

<p>Counties and County Commissioners — Taxation—Necessary Expenses — Injun ction.</p> <p>1. The legislature may confer upon a county the power to create debts for necessary expenses, without the approval of “a majority of the qualified voters” in the county. Const.., Art. VII, $7. And the county authorities are the sole judges of what are “necessary expenses.”</p> <p>2. Under an act of assembly to enable the people of Cumberland to establish a free bridge over the Cape Fear river, the countv authorities were au-thomed to issue bonds and levy a tax to meet the expenses of the same; Held, that a motion for an injunction against the exercise of the power was properly refused.</p> <p>(Hardy v. Raleigh, 4 Jones’ Eq., 370; Newsom v. Earnheart, 80 jST. C., 391; Hill v. Commissioners, 07 N. O., 307; Railroad, v. Commissioners, 72 1ST. C., 480; Jirodnax v. Groom, 04 N. O., 244 ; Salterthwaite v. Commissioners, 76 N. O., 153 ; Cromartie v. Commissioners, 87 N. C., 134; Winslow v. Weilh, 00 N. C., 432, cited and approved).</p>

<p>Witness — Section 590 — Evidence—Special Verdict — Agency— Demand — Remarles of Judge.</p> <p>1. One who is a party to a suit, though in liis corporate capacity, is not competent to testify as to a transaction with a person deceased.</p> <p>2. Neither the admission of incompetent nor the rejection of competent evidence not material to the issue or misleading, is assignable for error.</p> <p>3. The court has the power under The Code, §409, to direct a special finding upon an issue in an action for an account and settlement of a trust fund, and so also, in all other cases except where the suit is for “ money only” or “ specific real property.”</p> <p>4. A demand upon an agent, whether in the presence of the principal or not, is in law a demand upon the latter ; and evidence of transactions with the agent in furtherance of the objects of the trust, is admissible in an action for an account and settlement of the same.</p> <p>5. Where the relation of principal and agent subsists, the demand for an account necessary to put the statute of limitation in operation, must be such as to put an end to the agency : an application by letter, asking information of the agent concerning the trust fund, is not such demand, and the remark of the judge in this ease, that the letter, upon its face, does not purport to be a demand, was no invasion of the province of the jury.</p> <p>6. An agent who appoints an agent cannot escape personal liability upon the ground that he had no authority for the appointment.</p> <p>(Carrier v. Jones, 68 N. C., 130 ; Price v. Cox, 83 N. C., 261; Wynne v. Prairie, 86 N. 0., 73 ; Rogers v. Moore, lb., 85 ; Potter v. Sturgis, 1 Dev., 79 ; Mining Co. v. Fox, 4 Ired. Eq., 61 ; Waring v. Richardson, 11 Ired., 77; Moore v. Hyman, 12 Ired., 38; Hyman v. Gray, 4 Jones, 154; Kivetl v. Massey, 63 H. 0., 240; Falls v. Torrence, 4 Hawks, 412; Fdwards v. University, 1 Dev. & Bat. Eq., 325; Collier v. Poe, 1 Dev. Eq., 55; Blount v. Robeson, 3 Jones’ Eq., 73; Davis v. Colten, 2 Jones’ Eq., 430 ; West v. Sloan, 3 Jones’ Eq., 10-2 ; McHair v. Kennon, 3 Mur., 139, cited and approved).</p>

<p>Practice — Affirmation of Judgment.</p> <p>Where no case is settled on appeal ami no errors are assigned in the record, the judgment of the court will be affirmed.</p> <p>Civil Action to declare the defendant a trustee of the plaintiff and demanding the execution of a deed, tried at Spring Term, 1883, of Burke Superior Court, before Gudger, J.</p> <p>The defendant appealed.</p>

AppuicatioN por Mandamus heard at Chambers in Ashe-ville on the 27th of November, IBS/5, before Guríger, J. The application was made by the plaintiffs against the defendant board of commissioners of Buncombe county.

<p>Aiu?eal from an order made at Spring Term, 1883, of Haywood Superior Court, by Avery, J.</p> <p>The plaintiff appealed.</p>

<p>MotioN to dismiss an appeal heard at October Term, 1883, of The Supreme Court.</p>

<p>■ MotioN to dismiss an appeal heard at October Term, 1883, of The SupreME Court.</p>

<p>Appeal — New Trial where Judge retires from office.</p> <p>Where a judge goes out of office before preparing a case on appeal, a new trial will be awarded unless the parties agree upon a statement of the case. The certiorari applied for is granted to afford the parties an opportunity to adjust their differences in the premises.</p>

<p>Appeal — Reference.</p> <p>No appeal lies, where the rulings upon exceptions to a referee’s report and an order of recommittal do not affect the substantial rights of either party. {Bank v. Jenkins, 64 N. C., 719; Wellington v. Montgomery (and cases cited), 74 N. C., 372; Hollins v. Rollins, 76 N. C., 264; Railroad v. Richardson, 82 N. C., 343; Commissioners v. Magnin, 85 N. C., 114; Sloan v. McMahon, lb., 296; Leakv. Covington, 87 N. C., 501; Moore v. Hinnant, lb., 505, cited and approved).</p>

<p>Appeal — Exceptions to report of Refesee.</p> <p>An appeal from an order sustaining some of the exceptions to a referee’s report and overruling others, and recommitting the report with instructions to correct tho same in confirmity to the ruling of the court, is prematuro and will be dismissed. Upon the coming in of the report and the rendition of a final judgment, all the exceptions can be noted and passed upon in one appeal.</p>

PETITION for certiorari heard at October Term, 1883, of The Supeehe Couet. Held: but granted leave to this defendant to withdraw the answer and file another on or before the afternoon of Saturday, the last day of the term.

PETITION for recordari heard at Chambers in Jefferson, Ashe county, on the 16th of May, 1883, before Gudger, J. The action in which this p'rpceeding was had originated in McDowell county. The plaintiff had obtained judgment against the defendant company before a justice of the peace on a contract for services rendered to it, and on the 7th of May, 1883, notice of the intended application of defendant for a writ of recordari was served upon the plaintiff.

APPEAR from a justice’s judgment, tried at Spring Term, 1883, of Ashe Superior Court, before Gilmer, J. The plaintiff complained that he was the owner of certain justice’s judgments against one John McMillan, and that he had caused executions to be issued thereon, which he had placed in the hands of an officer for collection; and on the 16th day of March, 1876, while his executions were in the hands of the officer, McMillan sold a tract of land to the defendant James…

<p>Counterclaim — Mistake corrected in Equity — Account and Settlement.</p> <p>1. A counterclaim is where'tlie answer sets up a cause of action upon which the defendant might have sustained a suit against the plaintiff, and the answer in such case must contain the substance of a complaint with a concise statement of the facts constituting a cause of action.</p> <p>2. lYhere a mistake occurs in an account and settlement in which the defendant gives his note to the plaintiff for the amount of the supposed balance due, and the plaintiff sues upon the note; II'eld, that the court, under its equitable jurisdiction, will open the settlement and allow the defendant to show such mistake by way of counterclaim.</p> <p>(Costin v. Baxter, 0 Ired. Eq., 197; Compton v. Culbertson, 2 Dev. Eq., 93 ;'Hall v. Commissioners, 74 N. C., 130, cited and approved).</p>

Civil Action tried at Fall Term, 1883, of Iredell Superior Court, before Avery, Ji This was an action to set aside and cancel a deed upon the ground that it was executed by mistake. .

<p>Judgment non obstante veredicto — Tax Title — Sheriff’s Deed.</p> <p>1. A judgment non obstante veredicto is granted in cases where the plea confesses a canse of action and the matter relied upon is insufficient.</p> <p>2. A sheriff’s deed made to a purchaser of land for taxes within the twelve months after the sale, is void and passes no title. The act of 1872-73, ch. 115, §£30 — 33, construed by Asms, J.</p> <p>(Moye v. Pelway, 76 N. C., 327, cited and approved).</p>

EjectmeNT tried at July Special Term, 1883, of Watauga Superior Court, before Gudejer, J. On the trial the plaintiff' offered in evidence: 1. A deed bearing date September 27tb, 1847, from John Macus to Enoch Potter and wife Hannah Potter, giving the land in' dispute to them and their heirs. 2. A deed in fee from Enoch and Hannah Potter to Daniel IB. Potter, dated July 4th, 1873, but reserving a life estate to Enoch and Hannah. 3.

<p>Civil ActioN tried at Fall Term, 1882, of Alexakdeb Superior Court, before Avery, J.</p> <p>The defendants appealed from the ruling and judgment of the court below.</p>

Civil ACTION tried at Spring Term, 1882, of Ashe Superior Court, before Avery, J. A*trial by jury was waived, and it was agreed that the. judge might try all issues of law and fact. The court found the following facts.

Civil ACTION commenced before a justice of the peace and tried on appeal at Fall Term, 1883, of Asi-ib Superior Court, before Avery, J. The defendants filed an answer to the oral complaint, by leave of the judge.

<p>Civil AotioN tried at Fall Term, 1883, of MeckleNbuug Superior Court, before Gilmer, J.</p> <p>This action was brought in the superior court of Mecklenburg county against the defendant upon a lost bond, and after a complaint and answer had been duly filed, the parties obtained leave to amend their pleadings.</p> <p>The plaintiff alleged in the amended complaint, in separate paragraphs, substantially, as follows:</p> <p>1. That about the month of May, 1857, the defendant’s intestate and one Clanton executed their note under seal to Eliza Cathey for the sum of $230, due one day after date.</p> <p>2. That no part of the note had ever been paid.</p> <p>3. That in the year 1864 the feme 'plaintiff purchased the said note from Eliza Cathey.</p> <p>4. That in the month of April, 1865, the note was destroyed by fire which consumed the dwelling-house of the plaintiff.</p> <p>5. That plaintiff has demanded payment of the note, with the proposition to give adequate indemnity, but without effect.</p> <p>6. That a judgment had been obtained against Clanton on the note, but the sheriff has returned the execution thereon unsatisfied.</p> <p>The defendant answering the complaint said:</p> <p>That he denied the truth of the averments contained in the first, second, third, fourth, fifth and sixth paragraphs of the complaint, and insisted that' the plaintiff be held to strict proof thereof, and'for a further defence relied upon the statute of limitations.</p> <p>Before the jury were impaneled, the plaintiff’s counsel moved to strike out all of the answer except the part setting up the statute of limitations, insisting that the other answer and ■denials were not sufficient under The Code. The motion was refused and the plaintiff excepted.</p> <p>On the trial, the feme plaintiff offered herself as a witness in her own behalf, and objection was made by the counsel of defendant to her competency under the act of 1883, ch. 310. The ■objection was sustained by the court, and in deference to the ruling the plaintiff submitted to a nonsuit and appealed.</p> <p>These constituted the only exceptions, which, as it appears from the record, were taken by the plaintiff.</p>

<p>Pleading — Leave to amend answer upon terms — Motion—Apt time.</p> <p>Í. Where leave is given a defendant to put in an amended answer, provided no matter be set up therein which will affect orders previously made in the cause, such amended answer will be stricken out if it is incompatible with the terms upon which the leave was granted.</p> <p>2. The motion to strike out the answer was made in apt time under the facts of this case.</p> <p>(Wilson v. Lineberger, 82 ST. C., 412; Sanderson v. Daily, 83 H. C., 67 ; Mabry v. Henry, lb., 298, cited and approved).</p>

Civil ActioN on a guardian bond tried at Fall Term, 1881, of Iredell Superior Court, before Seymour, J. This ease is fully reported in 85 N. C., 500, and to the report submitted by the referee, in obedience to an order there made, (being changed by substituting the clerk below for the clerk of this court) the plaintiffs filed exceptions in this court.

EjectmeNT tried at Spring Term, 1883, of Stoices Superior 'Court, before Graves, J. The plaintiffs allege in their complaint, that at the time of the death of James Morris, their father, which took place in the year 1865, he was seized in fee of an undivided half of a large tract of land situate in the county of Stokes; that at the fall term, 1860, of the court of equity of said county, an ex-parte petition was filed, in which they, as the infants and only heirs-at-law of…

<p>EJECTMENT tried at Fall Term, 1883, of TRANSYXArANiA Superior Court, before Gudger, J.</p> <p>The plaintiff offered in evidence an execution in favor of Helen Larned against W. A. Bishop (the defendant in this case), and also a deed from the sheriff of Transylvania county, and proved that the defendant was in possession of the land, but offered no other evidence of a judgment except the execution.</p> <p>The defendant introduced the clerk of the court, who testified that there was no record in his court of any judgment against W. A. Bishop except the record upon page 141 of his judgment docket, which was alleged to be a docketed transcript from J. S. Heath, a justice of the peace, and is as follows:</p> <p> </p> <p>Judgment for two hundred dollars and the costs of this action. '</p> <p>(Signed) T. L. GASH.</p> <p>Judgment docketed and transcript filed September 15th, 1875.</p> <p>(Signed) T. L. GASH, Clerk</p> <p>T. L. Gash, the former clerk of the court, testified that a transcript of a justice’s judgment in the case of Helen Larned against W. A. Bishop was filed in the office of the clerk of the court while he was clerk, and from said transcript he made the entries which appear upon the judgment docket of said court, a copy of which is above set out, and he further stated that it was his habit as clerk of the court to docket transcripts of justices’ judgments as above shown, and that he did it under the advice of a judge of the court, and that he signed his name at the end of the entry of the judgment on the judgment docket to show that as clerk of the court he had docketed the judgment.</p> <p>Defendant did not offer the transcript of the judgment except as appears above, nor was there any evidence to show that the transcript of the judgment was not on file in the judgment-roll of the office of the clerk of said court, nor was there any evidence to.impeach the judgment, except, as defendant’s counsel insisted, that the said entry on said judgment docket was informal and irregular and not sufficient to create a lien on the land of the defendant in said county or to sustain the said execution.</p> <p>Defendant’s counsel asked His Honor 'to charge the jury :</p> <p>1. That if the defendant has shown by evidence that there was no judgment docketed in the superior court in favor of Helen Larned against W. A. Bishop, then the defendant has rebutted the prima fade case made by plaintiff by the execution and sheriff’s deed.</p> <p>2. That it is necessary that some transcript of the justice’s judgment shall appear to be upon the judgment docket, and the justice’s certificate must appear. The justice’s signature must appear either to the judgment or transcript. That a mere bill of costs, with the amount of judgment in figures without any signature of the justice and without any certificate from the justice, is not a transcript, the same being signed by the clerk of the court.</p> <p>His Honor refused both instructions and told the jury that the foregoing was a good docketed judgment of a justice of the peace. The jury found a verdict for the plaintiff. The court gave judgment accordingly and the defendant appealed.</p>

<p>EjjgctMENT tried at Spring Term, 1883, of AlleghaNY Superior Court, before Graves, J.</p> <p>Verdict and judgment for plaintiff; appeal by defendant.</p>

<p>■ EJECTMENT tried at Fall Term, 1883, of TRANSYLVANIA Superior Court, before Gudger, J.</p> <p>The plaintiffs appealed.</p>

<p>Civil Action tried upon exceptions to a referee’s report, at Spring Term, 1883, of Rowan Superior Court, before Graves, J. The plaintiffs appealed.</p>

EjectmeNT tried at Spring Term, 1883, of Lincoln Superior Court, before Shipp, J. The plaintiff put in evidence, under objection, the record of an action in the superior court of Lincoln county in which S. W. Keener, Daniel Goodson, and S. Y. Goodson, administrator, were plaintiffs against Alexander Goodson, which showed that at the appearance term of said action the following order was made: “As a compromise, this case is referred to Marcus Wike and James Mullin, with leave…

<p>Arbitration and Award — Evidence—Judge’s Discretion — Partnership.</p> <p>1. An award in writing, like a written contract, cannot be added to or varied. It speaks for itself, and is not open to proof of the “understanding” of the arbitrators as to its effect.</p> <p>2.' Where incompetent evidence is received without objection, the party affected by it cannot afterwards complain.</p> <p>3. It is discretionary with the presiding judge whether he will recall the jury and submit instructions, which were not presented until the charge was finished and the jury had retired to consider of their verdict.</p> <p>4. Upon settlement of a partnership, the liabilities of the members growing out of the joint business were disposed of, leaving the plaintiff as his separate property an unpaid claim due the firm; Held, that such claim no longer constitutes an item in the partnership account, and that tire plaintiff is entitled to his action to recover the same. (This controversy grew out of relations existing between a creditor and a debtor firm, the defendant being a member of both: the character of the debt in such caste, stated).</p>

Special PROCEEDING commenced before the clerk of Davidson superior court, and removed to and tried at Spring Term, 1883, of Forsyth Superior Court, before Graves, J. Under proceedings instituted in the probate court of Davidson and conducted regularly to a conclusion, the lands descended from the intestate (Joseph H. Thompson) to his heirs-at-law, children and grandchildren, were divided among them and their respective shares assigned in severalty, except that one tract,…

Civil ACTION tried at Spring Term, 1883, of Orange Superior Court, before MacRae, J. The action is for assault and battery and for false imprisonment in causing the arrest and detention of the plaintiff upon a charge of felony.

<p>Civil ACTION tried at January Term, 1882, of Wake Superior Court, before Gilmer, J.</p> <p>The demurrer was overruled and the defendant appealed.</p>

<p>Civil ACTION tried at January Term, 1882, of Wake Superior Court, before Gilmer, J.</p> <p>The plaintiff, suing as the treasurer of the state of North.Carolina, alleged in substance as follows:</p> <p>1. That the defendant is a corporation formed under the laws of Virginia and this state, and a portion of its line is located in this state, and in the act of incorporation by the state of Virginia it was enacted that “all machines, wagons, vehicles and carriages purchased as aforesaid ivith the funds of the company, and all other works constructed under the authority of this act, and all profits which shall accrue from the same, shall be vested in the respective shareholders of the company forever in proportion to their respective shares, and the same shall be deemed personal estate, and shall be exempt from any public charge or tax whatsoever.” Rut the assent of the legislature of North Carolina by the act of 1830 was given to said act, with the exception contained in the 8th section thereof, “that this act and every part ■and provision thereof shall be subject to be altered, amended or modified by any future legislature as to them shall seem necessary and proper, except so much thereof as prescribe the rate of ■compensation or tolls for transportation of produce or other commodities allowed to the said company.”</p> <p>2. That by the act of 1876-77, ch. 156, schedule C, §1, it is ■enacted: “ Every railroad or canal company incorporated under the laws of this state, and not liable to a tax upon the property of said 'company, or the shares therein, shall pay a tax on the corporation equal to a tax of one per cent, upon the gross receipts of said company; that said tax shall be paid semi-annually, upon the first days of July and January, commencing upon the first -day of July, one thousand eight hundred and seventy-nine; and for the purpose of ascertaining the amount of the same, it shall be the duty of the treasurer of said company to render to the treasurer of the state, under oath or affirmation, a statement of the amount of gross receipts of said company during the preceding six months; and if such company shall refuse or fail for a period of thirty days after such tax becomes due to make return ■or pay the same, the amount thereof, as near as can be ascertained by the public treasurer, with an addition of ten per cent, thereto, shall be collected for the use of the state as other taxes are collected : provided, that when a line of railroad or canal belonging to any company liable to this tax lies partly in this state and partly in an adjoining state or states, the part or share of such earnings only shall be subject to the tax as will be in that proportion to the whole receipts which the length of the road or canal within the limits of the state shall bear to the whole length of such road or canal. And in said act it was directed that every railroad and canal company, incorporated under the laws of this state and doing business herein and not liable to a tax upon the property of said company or the tax before mentioned, shall pay a tax of one per cent, upon the actual cash value of every share of its capital stock to the treasurer- of the state for its use on the first day of July, 1877, and each year thereafter with like provisions with regard to the return of statements, the enforcement of the tax and apportionment thereof when the road lies partly in this state and partly in an adjoining state, as the one annexed to the first tax.</p> <p>3. That the same enactments were made in the ensuing revenue laws, except that in that of 1881 a privilege tax of twenty-five dollars per mile per annum was substituted in place of the tax upon the cash value of the shares.</p> <p>The plaintiff further alleged that the defendant had failed to make the returns required by law and to pay any of the taxes imposed by said statutes, and prayed that the defendant be compelled to make the required return of statements and pay the taxes which shall be ascertained to be due.</p> <p>The defendant, admitting that the statutes referred to in the complaint were correctly cited, denied that they had any applicability to it.</p> <p>The plaintiff demurred to the answer. The court sustained the demurrer and gave judgment against the defendant, and the defendant appealed.</p>

CiviIj ACTION tried at January Term, 1882, of Wake Superior Court, before Gilmer, J. The plaintiff’s demurrer to the defendant’s answer was sustained by the court, and the defendant appealed.

<p>Railroads— Common Carriers — Negligence—Damages—Bill of Lading, stipulations in.</p> <p>1. A stipulation in a bill of lading, given by one of an associated through line of common carriers to transport goods beyond its own line, to the effect that if damage to the goods be sustained by the shipper, that company alone in whose custody the goods were at the time of the loss shall be answerable, is a reasonable one and consistent with public • policy; and the shipper who accepts it is bound by its terms and conditions, whether he reads it or not.</p> <p>2. Qucere — As to the extent of liability of common carriers by sea, and how far the same has been modified by act of Congress, which exempts the owner of a vessel from responsibility by reason of fire on board ship, unless c,aused by the negligence of such owner.</p> <p>3. The stipulation for exemption from responsibility must be just and reasonable in the eye of the law, and hence it is not lawful to so stipulate for the negligence of the carrier or its agents.</p> <p>4. The facts of this case do not show a copartnership, but merely an association between the lines of road — each undertaking to transport freight safely over its own road and to act as an agent in forwarding the same to the next connecting road.</p> <p>{IAndley v. Railroad, 88 N. C., 547; Phillips v. Railroad, 78 N. C., 294, cited and approved).</p>

<p>Evidence — Copy of Grant — Landlord’s right to damages to land — Railroads, negligence of.</p> <p>1. A copy of a grant from the register’s office, which affirmatively shows that it was issued under the great seal of the state is admissible in evidence, though the registry does not show the impress of the seal, or scroll to indicate it.</p> <p>2. While the seal in such case may be necessary to authenticate the grant, yet it will be assumed that it was affixed as the law requires.</p> <p>3. A party, through his tenant, is prima facie the owner of the land, in the absence of other evidence, and is entitled to recover damages done to his possessory rights.</p> <p>4. Where a railroad company permits dry grass or leaves or other combustible rubbish to remain near its track, and the same take fire from ignited sparks emitted from one of its locomotives which had no spark-arrester, and the fire is thereby communicated to the plaintiff’s adjoining land, destroying timber, &c.; Held, that the injury resulted from the negligence of the defendant company.</p> <p>5. The negligence is presumed from the facts proved in this case, and the burden is upon the defendant to show that the locomotive was provided with the usual and proper appliances to avoid injury from tlie escape of burning sparks, and that there was no fault on the part of those managing the train.</p> <p>6. In such a case, no contributory negligence can be imputed to the plaintiff the injury being done to land and “the same condition of things ’’existing.</p> <p>7. It was negligence to permit the inflammable material in which the fire begun, to remain so near the company’s track and liable to ignite from emitted sparks.</p> <p>8. The defendant company is liable for the consecpiences of mismanagement of a train in charge of the employees of another company using its track with defendant’s knowledge'and consent.</p> <p>9. The suggestion «-that the complaint does not disclose a cause of action, in that, it does not negative concurring negligence in the plaintiff, has no force; the injury is to land_and no agency of the plainilff could have averted it.</p> <p>10. Bern arks of the court in Owens v. Bailroad, 88 N. C., 502, to the effect that the defendant must show concurring negligence in the plaintiff, approved.</p> <p>(Candler v. Lunsford, 4 Dev. & Bat., 407; Ciarle v. Diggs, 6 Ired., 159 ; McLean v. Chisholm, 64 N. C., 323; Strickland v. Draughan, 88 if. 'C., 315; Ruf-fin v. Overby, Ib., 3C9, and cases cited; Osborne v. Ballew, 12 Ired., 373; Lamb v. Swain, 3 Iones, 370; Ellis v. Bailroad, 2 Ired., 138; Herring v. Bailroad, 10 Ired., 402; Scott v. Railroad, 4 Jones, 432; Anderson v. Steamboat, 04 N. C., 399; Doggelt v. Railroad, 81 N. C., 459; Durham v. Bail-road, 82 N. C., 352; Lroxler v. Bailroad, 74 N. C., 377; Owens v. Bail-road, 88 N. C., 502; cited and approved).</p>

Civil Action tried at Fall Term, 1883, of OraNGE Superior Court, before MacRae, J. The plaintiff sues to recover in damages the value of a horse belonging to him, and which he alleges was struck and killed by a traiu of cars passing over the defendant’s roacl in the month of April, 1882.

CrvTL ACTION tried at July Special Term, 1882, of Vance Superior Court, before Graves, J. The plaintiff, himself engaged in buying and selling cotton, and having his residence and place of business at Henderson, had consigned a number of bales to J. J. Thomas, his factor and correspondent at Raleigh, with directions to keep him advised of the state of the market, intending to hold the same for an advance in price for cotton of that grade to ten and three-fourths cents per…

MOTION to vacate an order of attachment heard at J une Term, 1883, of New Hanover Superior Court, before McKoy, J. The motion was denied and the defendants appealed.

Civil ActioN heard upon exceptions to a referee’s report at October Term, 1883, of The Supreme Court. This cause was first tried at fall term, 1878, of Wake superior court, its purpose being to set aside certain proceedings in the probate court, in which ,the defendant administrator had obtained a license to sell the real estate of his intestate for assets to pay debts. See 81 N. C., 356.

<p>MotxoN for an injunction in a suit pending in Haywood Superior Court, heard at Chambers, before Avery, J.</p> <p>From the order refusing to grant the motion, the plaintiff appealed.</p>

Civil ACTION tried at Spring Term, 1883, of UNION Superior Court, before Shipp, J. This action was brought to recover a part of a crop grown upon land under an alleged contract of lease. The defendant denied the contract and claimed title to the land.

<p>Contract, description in — Parol Proof of identity of property conveyed.</p> <p>1. A contract, wherein the vendor agrees to sell to the vendee, “any of my black walnut trees, not exceeding fifteen in number,, that will girth eight feet six inches in circumference and under ten feet, at two dollars each ; and all trees measuring ten feet in circumference and upwards, at two dollars and a half each,” giving the right of way across the vendor’s land to fell and remove the timber, is sufficiently definite .to admit parol proof of the property sold.</p> <p>2. Whore the plaintiff vendee brought an action for specific performance against the vendor and those to whom' he subsequently contracted to convey the land whereon the trees were standing, it was held competent to inquire whether the vendor had a tract of land on which such trees were to be found ; and if he had, the identity of the trees could be ascertained by the terms of description in the contract.</p> <p>3. Held further: If there were more than fifteen such trees on the land, the contract was ineffectual to pass title to any, on account of the uncertainty as to which trees were meant. But in this case, the proof that there were not fifteen trees on the land, which answered the description in the contract, removes such uncertainty and establishes the title in the vendee. .</p> <p>(Farmer v. Batts, 86 N. C., 387; Young v. Griffith, 84 N. C., 715; Thornburg v. Masten, 88 N. C., 293 ; JBreaid v. Hunger, lb., 297; Radford v. Edwards, lb., 347; Blakely v. Patrick, 67 N. C., 40; Mizzell v. Burnett, 4 Jones, 249 ; Green v. Railroad, 73 N. C., 524, cited and approved).</p>

<p>Vendor and Vendee — Mortgage—Statute of Presumptions and Limitations.</p> <p>1. Where A and B, joint vendors of land, take a mortgage and notes to seture the price, payable to each according to their respective shares; Held, that a payment to A, who is also agent of B, discharges proportionately the debt to each,/and a subsequent assignee of B cannot have an application of said payment wholly to A’s interest.</p> <p>2. Where, in such case, there has been a verbal agreement between the vendors and an assignee of the vendee to reduce the debt and change or release the respective liabilities of the parties, which agreement was only in part carried out; Held, in an action to enforce the mortgage and collect tlietmpaid residue of the reduced debt, if there are valid subsisting judgments for the unpaid mortgage debt and the vendee does not deny the liability, the assignee of B cannot insist upon the statute of presumption of payment from lapse of time as to the original debt, nor upon a bar by the act of limitations (C. C. P., ¿31), as to the reduced debt assumed by the assignee of the vendee.</p> <p>(Harshaw v. McKesson, CO N. C., 260, cited and approved).</p>

<p>EjectmeNT tried on exceptions to a referee’s report at Spring Term, 1882, of Ashe Superior Court, before Avery, J.</p> <p>Appeal by defendants.</p>

<p>Civil AotioN tried at Spring Term, 1883, of Davidson Superior Court, before Graves, J.</p> <p>"Verdict and judgment for plaintiff; appeal by defendant.</p>

<p>Civil ActioN tried at Fall Term, 1882, of RowaN Superior Court, before Ghtdger, J.</p> <p>Verdict and judgment for defendant. Appeal by plaintiff.</p>

<p>Deed, when fraudulent — Judge’s Charge.</p> <p>A voluntary deed, executed by an insolvent person, is void per se as to creditors; where the deed is made upon a fair consideration it is not necessarily void; and where the transaction is between an insolvent father and his son, a rebut-table presumption of a fraudulent intent arises from the close relationship of the parties; Therefore, where there was evidence tending to show that the deed was supported by a valuable consideration, and the judge charged the jury that if at the time it was executed the bargainor did not retain property sufficient to pay his debts, then in law the deed is void, and failed to submit the question as to the bona fides of the transaction, it icas held to be erroneous.</p> <p>(Slate v. JBethune, 8 Ired., 139 ; Morris v. Allen, 10 Ired., 203; Gibson v. Walker, 11 Ired., 327; Hardy v. Simpson, 13 Ired., 132; Satterwhite v. Hicks, JBusb., 103; Jenkins v. Peace, 1 Jones, 413; Jessup v. Johnston, 3 Jones, 335; Black v. Caldwell, 4 Jones, 150; Winchester v. Beid, 8 Jones, 377, cited and approved).</p>

<p>Special PkoceediNG commenced in the probate court and tried at Fall Term, 1882, of New Hakoveb. Superior Court, before McteRae, J.</p> <p>This proceeding was instituted by the plaintiffs to obtain partition of certain lots in the city of Wilmington, of which John-PI. Heins is alleged to have died seized and possessed, and the feme plaintiff Anna S. Wessell and the feme defendant Margaret E. Rathjohn are his only children and heirs-at-law, and are jointly seized of the descended property.</p> <p>In answer to the plaintiffs’ petition, it is alleged that the feme defendant is the sole owner of the property under a deed from her father, and in reply the plaintiffs say that said deed is not the act and deed of John H. Heins, for the reason that at the time of its execution he was not of sound and disposing mind, and that the making of the same was procured by undue influence exerted by the feme defendant, and the plaintiffs therefore ask for a decree of cancellation and that the land be divided.</p> <p>Thereupon the following issues were framed and submitted to the jury:</p> <p>1. Was John H. Heins of such unsound mind, at the time of the execution of the deed, as to render him incapable of executing a deed ? Answer, No.</p> <p>2. Did the feme defendant Margaret procure its execution by exerting an undue influence over her father, the said John H. Heins? Answer, No.</p> <p>The plaintiffs and defendants introduced a number of witnesses : the testimony of the former tended to support the allegation of a want of soundness of mind of the grantor, caused by protracted ill health ; and that of the latter, to support the contrary.</p> <p>The plaintiffs requested the court to charge the jury, “that in order to enable a man to make a deed of bis property so as to pass the title, lie must have sufficient mental capacity to understand the nature of the act in which he is engaged, in its full extent and effect, and this capacity must exist at the time of the act performed; if it does.not then exist, the act would not be valid, although the party might thereafter recover such capacity.” This was given, and Iiis Honor added, “unless he acquiesced in it or ratified it afterwards,” to which addition the plaintiffs excepted. The substance of other instructions of the plaintiffs which wer’e refused by the court below, is stated in the opinion of this court.</p> <p>Under the charge of the judge, the jury responded to the issues as indicated above, and the plaintiffs appealed from the judgment rendered.</p>

EjectmeNT tried at Spring Term, 1882, of Iredell Superior Court, before Eure, J. The following issues were submitted to the jury : 1. Is the plaintiff the sole owner and entitled to the possession of the land described in the complaint? 2. Does the dividing line between the plaintiff and defendant run from the pine designated in the plat to the red oak ? If not, to what point does it run? 3. Is the defendant in the wrongful possession of any part of the land ? 4.

Civil ACTION tried at Spring Term, 1883, of Cleave-LAND Superior Court, before Shipp, J. This action was brought to recover a stock of goods or damages for the conversion of the same. The plaintiff proved ti demand and refusal, and the conversion was admitted; and lie claimed the goods under two chattel mortgages, executed by W. H. Miller, duly registered in Cleave-land county.

<p>EjectmeNT tried at Spring Term, 1883, of Guilford Superior Court, before Gilmer, J.</p> <p>The plaintiff appealed from the judgment of the court below.</p>

EjectmeNT tried at Spring Term, 1882, of Ashe Superior Court, before Avery, J. The facts bearing upoo the exceptions taken, necessary to an understanding of the case, are sufficiently stated in the opinion of this court. The defendant appealed from the judgment of the court below.

Civil Action tried at Spring Term, 1883, of Row AN Superior Court, before Graves, J. This action is upon the bond of the defendant, as administrator df Chauncey Burnett, deceased, and was referred to a referee to state an account of the administration of the assets of the intestate’s estate.

Civile ACTION on a guardian bond tried at Fall Term, 1883, of Guiuford Superior Court, before MaoRae, J. The defendant Mebane, in February, 1866, was appointed guardian to the relators (Preston C. and Rebecca Humble and Libby Louisa, now the wife of the other relator) by the county court of Guilford, and entered into bond as such in the penal sum of $2,000, with the other defendant and one- R. P. Shaw, sureties, with conditions required by law.

Civil ActioN tried at Spring Term, 1883, of UNION Superior Court, before Shipp, J. The plaintiff brought this action on the 27th day of November, 1879, before a justice of the peace in the county of Stanly, upon a note under seal for $15, dated the 18th day of September, 1860, and due twelve months next thereafter, executed by one A. J. Duucan, in his life-time, to J. J. Hasty.

Civid ACTION tried at Fall Term, 1881, of Carteret Superior Court, before Shipp, J. This action was instituted on July 26, 1876, on the bond executed by Samuel E. Davis, on his appointment by the county court of Carteret in 1857, as guardian to the infant relators, against the defendants, the executors of Benjamin L. Perry, one of the surety obligors, to recover what is due to them respectively from the administration of the trust estate.

EjectjibNT tried at Spring Term, 1883, of Richmond Superior Court, before MacRae, J. The plaintiff alleged that he was the owner in fee-simple of the land in dispute, and that defendants unlawfully withhold possession thereof. In support .of his title, the plaintiff offered in evidence a deed from Walter F. Leak and wife to him, dated December 3, 1872.

<p>Wills, reprobate of — Caveat</p> <p>1. Where a script has been proved by the executor without citation or notice to those interested in the decedent’s estate, they are entitled to have the probate set aside, and, to an order for repropounding the will, if applied for within a reasonable time after notice of the former probate, to the end that its validity may be inquired into; and under the present statute, the application need not set forth the grounds upon which the script is impeached.</p> <p>2. The law relating to the method of procedure in entering a caveat, and the decisions bearing upon the question, commented on by Smith, C. J.</p> <p>(Armstrong v. Baker, 9 Ired., 109; McNorton v. Robeson, lb., 250; Moss v. Vincent, 2 Car. L. R.., 414; Jeffreys v. Alston, lb., 384; Ralston v. Telfair, 1 Dev. & Bat., 4S2; Etheridge v. Corprew, 3 Jones, 14; Syme v. Broughton, 86 N. C., 153; King v. Kinsey, 71 N. C., 407, cited and approved).</p>

EJECTMENT tried at Spring Term, 1883, of Forsyth Superior Court, before Graves, J. There was a verdict and judgment for plaintiffs, and the defendants appealed.

Ejectment tried at Fall Term, 1882, of Rutheeeokd Superior Court, before Graves, J. The question involved in this case is, whether a fee-simple or an estate for life was conveyed by the will of George Painter to his wife, Rebecca. The court below held.that it conveyed a fee-simple. There was judgment accordingly, and the defendant appealed. The facts upon which the decision of this court is based are sufficiently set out in its opinion.

<p>Issue devisavit vel non tried at Fall Term, 1883, of LeNOIR Superior Court, before Philips, J.</p> <p>The execution of the alleged will and codicil, and the testamentary capacity of the alleged testator, Richard W. King, were proved on the trial; and thereupon the defendant caveator, for the purpose of showing that there had been a revocation, offered in evidence, as a testamentary paper, certain proceedings had before the clerk of the superior court, to-wit:</p> <p>.“The petition of Richard W. King, Mary E. Taylor and Richard Taylor, respectfully showeth unto your worship, that your petitioners reside in the said county of Lenoir; that the petitioner, Richard Taylor, was born on the 17th day of January, 1S64; that your petitioner, Mary E. Taylor, is the mother, and your petitioner, Richard W. King, is the putative father of said Richard Taylor, who was begotten and born out of lawful wedlock; that the said Richard W. King was unmarried at the time of the bjrtli of the said Richard Taylor; that both of said parents arc living, and the said Richard Taylor has no estate, and resides with his mother, Mary E. Taylor; that the said Richard W. King desires and intends to adopt the said Richard Taylor for his, the said Richard Taylor’s life, to which adoption the said Mary E. Taylor hereby assents, as is signified by her signing and becoming a party of record to this proceeding, and also desires that said Richard Taylor may be declared his legitimate child in pursuance of sections 7 and 8, of chapter 9, of Battle’s Revisal. Your petitioners further show, that the said Richard Taylor desires to change his name from Richard Taylor to Richard King.</p> <p>“Wherefore, your petitioners pray your worship to sanction and allow such adoption, by an order granting letters of adoption, and to decree that the name of the said Richard Taylor may be changed to Richard King, and that they may have such other relief as the case requires; and also to declare the said Richard Taylor the legitimate child of the said Richard W. King.” (Signed by Richard W. King, Mary E. Taylor, Richard Taylor and also the attorney of the petitioners, and verified by Richard W. King).</p> <p>Thereupon, the following decree was made: “Upon reading the foregoing petition and affidavit, the court doth declare that the facts set forth in said petition are true, and it is thereupon decreed that the name of said Richard Taylor be and the same is hereby changed to Richard King. And it further appearing that the said Richard W. King is a proper and suitable person, the adoption prayed for in said petition is hereby sanctioned aud allowed, and it is ordered that letters of adoption of the said Richard Taylor be granted and issued to the said Richard W. King, and that the said Richard Taylor be, and he is hereby declared to be, the legitimate child of the said Richard W. King, in pursuance of sections 7 and 8, of chapter 9, of Battle’s Revisa], and this order shall have the effect forthwith to establish the relation of parent and child between the said Richard W. King and the said Richard Taylor, for the life of the said Richard Taylor, with all the duties, powers and rights belonging to the actual relationship of parent and child; and should the said Richard W. King die intestate, the said Richard Taylor shall inherit the real estate and be entitled to the personal estate of the said Richard W. King in the same manner and to the same extent said Richard Taylor would be entitled to do if he had been the actual lawful child of the said Richard W. King. It is further decreed that this order be recorded in the office of •the clerk of the superior court, of Lenoir county. This 25th day of October, 1882.” (Signed by the clerk, and approved by the judge of the superior court).</p> <p>This decree was enrolled in the office of the superior court clerk of Lenoir comity, on the 28th of October, 1882. And a certificate was issued by the clerk to Richard W. King, to the effect that, in pursuance of these proceedings, he had adopted said Taylor as his child, and that the relation of parent and child was established between them.</p> <p>These proceedings were never offered for probate, as a testamentary paper, but the caveator insisted that they were intended by the testator to be, and were a revocation of the will ancle odi-cil theretofore published by him; and in support of this position, he offered witnesses to prove that the said petition ivas signed by Richard W. King, in presence of Mary Taylor and Richard Taylor (the defendant), and that they signed the same in his presence and at his request. There was also proof that said testator had stated to witnesses that he desired his son, the defendant, to inherit his property, as he had no other child, and that in order to secure the same to him the said proceedings for adoption were had.</p> <p>To all of this evidence the plaintiff propounder objected, upon the ground that it is incompetent to show by parol testimony that the said proceedings for adoption were testamentary in their character and intended to operate asa revocation of the will; and further, that 'they could not be received as evidence on the trial of this issue, until propounded for probate in the proper court and established as the will of said Richard W. King.</p> <p>His Honor sustained the objection and ruled out the evidence, and the defendant excepted. Verdict for plaintiff; judgment; appeal by the defendant.</p>

Special PROCEEDING for dower, commenced before the clerk and beard on appeal at Spring Term, 1883, of ROWAN Superior Court, before Graves, J. The controversy between the parties arose upon the construction of the will of Dempsey Page, deceased, which is set out in the opinion of this court. The ruling of the judge in the court below was in favor of the plaintiff, and front the judgment rendered the defendants appealed.

<p>EJECTMENT tried at Spring Term, 1883, of CleavelANI) Superior Court, before Shipp, J.</p> <p>The plaintiffs claimed the land in dispute as children and heirs-at-law of Annie Beam, who was the daughter and heir of John Long, who died about the year 1819 or 1820, and the said Annie married Peter Ream during ilie life of her father. The plaintiffs showed the title out of the state, and that said John Long bought the land from Samuel Irwin, and they offered evidence-tending to establish the fact that John Long had occupied and claimed the land for more than seven years under his deed from Irwin, but the years were not specified.</p> <p>The defendants introduced a.deed from John Long to one Henry Smith, dated in 1816, for a part of the laud, to show that the title to so much thereof was not in the plaintiffs, and that they could not recover the part embraced in that deed. The-plaintiffs excepted to the introduction of that deed, because, as they contended, they had alleged in their complaint that the de: fendants claimed title to the land from Peter Beam, the husband of the said Annie, and they had not traversed the allegation, and were estopped to deny that they claimed otherwise than under Peter Beam.</p> <p>The defendants also offered in evidence the will of John Long, the ancestor of the plaintiffs, in which, among other things, he directed :</p> <p>That his homestead plantation, and his other lands, several negroes, and all other property not disposed of by the will, be sold at public auction, and the money remaining after payment of his debts and expenses, should be divided among his three daughters and his son Henry Long, if Henry be living, and if not, then it was to be divided among his three daughters. The testator appointed three executors of his will.</p> <p>There was evidence tending to show a sale of the negroes and other property after the testator’s death, but at that sale there was no sale of the land.</p> <p>The defendants contended that under the above clause of the will, Annie Beam took no land of her father, but that the same was, by the will, converted into personalty, and that the plaintiffs could not recover in this action.</p> <p>The following issues were submitted to the jury:</p> <p>1. Are the plaintiff's the owners of the land in controversy, or any part thereof ? No.</p> <p>2. Do the defendants wrongfully withhold the possession thereof? No.</p> <p>3. What damages, if any, are the plaintiffs entitled to for the unlawful detention (if so found) of said land?</p> <p>The court charged the jury that, under the 'will of John Long, the plaintiffs’ remedy, if they have any, was' by bill in equity to compel the executors to execute the power of sale, and the plaintiffs could not recover the land in this form of action. The plaintiffs excepted to this charge.</p> <p>The jury responded in the negative to the first and second issues, as indicated above. Judgment for the defendants, and appeal by plaintiffs.</p>

CONTROVERSY submitted without action and heard at Spring-Term, 1882, of JOHNSTON Superior Court, before Shipp, J. One H. L. Watson being indebted to divers persons in various amounts, executed a deed of trust to the plaintiff, dated November 28th, 1881, conveying all his “ merchandise, wares and stock in trade, and all- money due or coming to him on mortgages, bonds, notes, book accounts, to have and to bold unto the said trustee upon the trust following, viz.: In trust to…

INDICTMENT for larceny tried at Spring Term, 1883, of Bertie Superior Court, before Philips, J. The defendant is charged with stealing a hog, the property of some person to the jurors unknown. The substance of the testimony is as follows: One Ketertesti-fied that the defendant lived within a mile and a half of him, and that he knew the defendant’s hogs.

<p>INDICTMENT tried at Spring Term, 1883, of Madison Superior' Court, before Avery, J.</p> <p>The bill contained two counts, one for larceny and the other as follows, to-wit:</p> <p>“And the jurors for the state, upon their oaths aforesaid, do further present, that the said George McCoy, on the day and year aforesaid, with force and arms, at and in the county aforesaid, two bushels of corn of the value of two dollars, of the goods, chattels and moneys of one J. G. Roberts and the said George McCoy, the said two bushels of corn being the joint and undivided property, goods, chattels and moneys of the said J. G. Roberts and said George McCoy, the said J. G. Roberts and George McCoy each owning one undivided half of the said two bushels of corn, as landlord and tenant, the said J. G. Roberts being the landlord and owner of the land upon which the corn had been grown, and the said George McCoy being the tenant of the said J. G. Roberts, who grew the said corn, the ■said corn being undivided and then and there being found, feloniously did steal, take and carry away, against the form of the statute in such case made and provided and against the peace and dignity of the state.”</p> <p>The solicitor entered a nolle prosequi as to the first count.</p> <p>The defendant demurred to the bill of indictment and moved that it be quashed. The court sustained the motion, and from this ruling the solicitor for the state appealed;</p>

INDICTMENT for larceny tried at Fall Term, 1883, of Buncombe Superior Court, before Gtndger, J. The prosecution was commenced in.the inferior court before T. E. Davidson, chairman, and associates, where the defendant was convicted, and from the sentence pronounced appealed to the superior court.

<p>INDICTMENT for larceny tried at Spring Term, 1883, of Halifax Superior Court, before Philips, J.</p> <p>The indictment contained two counts — one for stealing a quantity of cotton, the property of James H. Parker, and the other for feloniously receiving the cotton, knowing it to have been ■stolen. Upon the trial in the inferior court of Halifax, before Thos. N. Hill and associate justices, in which the prosecution 'commenced, the defendant pleaded “not guilty," and the jury returned for their verdi.ctthat the defendant “is guilty of receiving stolen cotton.” On motion-of the defendant, judgment was arrested, and the state appealed to the superior court, where the Judgment of the inferior court was affirmed, and the state appealed to tliis court.</p>

INDICTMENT for larceny tried at Spring Term, 1883, of ObANGE Superior Court, before Gilmer, J. The state introduced as a witness one Orren Suggs, who testified that he and one C. P. Suggs were millers, and kept the mill of Mrs. Purifoy, in Orange county; that they both took charge of the mill in January, 1883, and at that time the defendant had wheat at the mill, in garner No. 54, amounting to forty and a half bushels, for which ho gave defendant a receipt; that he moved the…

INDICTMENT for larceny tried at Fall Terra, 1883, of ORANGE Superior Court, before MacRae, J. The jury found a special verdict, in substance as follows: George Piper, the prosecutor, was the owner of the piece of mutton alleged to have been stolen by the defendant, and the defendant came to his wagon in the town of Hillsboro and took up the mutton, saying it was for Mrs. Webb, “I will take it to her and be back with the money in five minutes.” He went off with it; did not…

INDICTMENT for murder tried at Fall Term, 1883, of Hen-DERSON Superior Court, before Oudger, J. The prisoners are charged with the killing of Samuel P. Cunningham, and upon the trial they made several exceptions, based upon facts which are substantially as follows: One Shipman, a juror of the original panel, when called was challenged by the prisoners on the ground that he had served as a juror in that court within two years of that term of the court, but the challenge was…

<p>INDICTMENT for a misdemeanor tried at Spring Term, 1883, of Harnett Superior Court, before MaeRae, J.</p> <p>The defendant is charged with the violation of the act of 1876-77, eh. 283, §6, in removing crops. The jury found a verdict of guilty, and thereupon the defendant- moved in arrest of judgment, upon the ground that the indictment charged that the corn and fodder alleged to have been removed was removed “ without satisfying cell liens on said crop”; whereas the statute provides, in respect to such removal, * * * and “before</p> <p>satisfying all liens held by the lessor or his assigns on said crop.”' The judge sustained the motion, and from the judgment rendered in favor of the defendant the solicitor for the state appealed.</p>

<p>PetitiON for writ of certiorari heard at October Term, 1883, of The Supreme Court.</p>

INDICTMENT for embezzlement tried at October Term, 1883, of Neav Hanover Criminal Court, before Meares, J. The defendant is charged with the embezzlement of money, the property of R. G. Gause & Co., and the proof was that he had been in their employment about six weeks, for the purpose of sweeping- out their store and waiting about the store, but not as a clerk; that on the 27th of June, 1883, their was an assemblage of people at Point Caswell, in Pender county, about forty…

INDICTMENT for embezzlement tried at May Term, 1883, of New Hanover Criminal Court, before Meares, J. The bill of indictment is in substance as follows: The jurors, &c., present that Jere Lanier, &c., with force and arms, &c., being then and there employed as a servant of Addie P. Mc-Clammy, by virtue of bis employment, and whilst he rvas so. employed, did receive and take into his possession certain money, to-wit: seven dollars and fifty cents for, and in the name of, and…

INDICTMENT for an assault with intent to commit rape, tried at Spring Term, 1883, of Edgecombe Superior .

<p>INDICTMENT for assault and battery tried at Spring Term, 1883, of JohnstoN Superior Court, before MaoRae, J.</p> <p>On the trial, Charles B. Olive was examined as a witness on behalf of the state, and, on his cross-examination, was asked by defendants’ counsel if he did not tell the defendant Beasley that he (Beaseley) was innocent, and that he (witness) would .have Beasley’s name stricken out of the indictment; and the witness denied having told Beasley anything of the kind.</p> <p>One Kennedy was examined by the defendants, and was asked the following question: “Shortly after this difficulty at Fuller’s store in Smithfield did Charles B. Olive say anything to Beasley, in your presence, about having Beasley’s name stricken out of the indictment, and his not believing that Beasley had anything to do with the difficulty; if so, what was it?”</p> <p>The witness testified that he did not hear all that he said; that Olive and Beasley were in conversation about this matter when witness came up, and that he could not give the substance of the whole conversation, but that he heard all that was said after he came up. His Honor refused to allow the question to be answered, and the defendants excepted.</p> <p>The jury returned a verdict of not guilty as to the defendant Richard Barber, and guilty as to the other defendants.</p> <p>After verdict, the defendants moved for a new trial, upon two grounds:</p> <p>1. Because the court refused to permit the witness, Kennedy, to answer the question propounded to him.</p>

Indictment for highway robbery tried at Fall Term, 1882, of Chaven Superior Court, before McKoy, J. On the trial, one Henry Rouse, a witness for the state, testified that there had been a preliminary examination of the charge against the defendant, in which, declarations of Peter Donan, the person alleged to have been robbed, were used as his dying declarations, and the defendant was committed; that afterwards, Peter Donan came to Newbern, when Thomas Stanley, the justice of…

INDICTMENT for injuring and defacing the county jail, tried at Spring Term, 1883, of CraveN Superior Court, before Philips, J. The jurors, &c., present that defendants, &c., the common jail of said county, did feloniously, wilfully, unlawfully and violently beat, strike and cut with axes, chisels, mallets and heavy sticks of wood, whereby the inner and outer walis and part of the window and cage of said jail were broken, defaced, disfigured, injured and damaged; and the said…

<p>Discharge of Jury before Verdict — Jeopardy—Motion for Discharge of Prisoner, heard in this court.</p> <p>1. It is the duty of the judge, upon finding the fact that a juror fraudulently procured himself to be put on the jury, for the purpose of acquitting the prisoner in a trial for murder, to withdraw a juror and direct a mistrial to be entered, State v. Bell, 81 N. 0., 591; and this, whether the prisoner be connected with or cognizant of the fraud or not. In such case, there is no jeopardy, and the order remanding the prisoner for trial before another jury was proper.</p> <p>2. Held further, that even though no formal motion is made for the prisoner’s discharge in the court below and denied, yet, this court will, on his petition for certiorari, consider his claim to exemption from another trial.</p> <p>(State v. Swepson, 79 N. C., G32, and 81 N. C., 571 ; Slate v. Pollard, 83 N. C., 597; State v. Bespass, 85 N. C., 534; Slate v. Bell, 81 N. C., 591; State v. Qarrigues, 1 Hay., 241; Spier’s Case, 1 Dev., 491; State v. Ephraim, 2 Dev. & Bat., 102; State v. Prince, 03 H. C., 529; State v. Jefferson, 00 N. C., 309; Slate v. Honeycutt, 74 N. C., 391; State v. Bailey, Go N. C., 420 ; Slate v. Wiseman, 08 N. C., 203, cited, commented on and approved).</p>

INDICTMENT tried at Spring Term, 1883, of PERSON Superior Court, before Gilmer, J. The indictment contains two counts — one for burning a granary and the other for burning a stable, in violation of the act of 1874-75, ch. 228. The defendants were found guilty, and, a motion for a new trial having been overruled, the court pronounced judgment and the defendants appealed.

INDICTMENT for malicious mischief tried at Fall Term, 1883, of Randolph Superior Court, before MctcRae, J. The defendant is charged with poisoning a mare colt, the property of one Calvin Hancock. On the trial, the counsel representing the state made an opening- statement to the jury of what the state expected to prove.

INDICTMENT tried at Spring Term, 1883, of Orange Superior Court, before Gilmer, J. t The defendant is indicted under The Code, §1062, for unlawfully and wilfully removing a fence surrounding a cultivated field, the property of Mary S. Nichols.

INDICTMENT for a misdemeanor tried at Fall term, 1883, of Perquimans Superior Court, befor Avery, J. The indictment — The jurors, &c., present that the defendant, &c., unlawfully and wilfully did absent and leave the employment of John S. Hedrick, with whom the said • defendant had made a contract to work during the month of June, 1883, the time of service under said contract not having then expired, against the statute, &c. The defendant’s counsel 'moved to quash the bill,…

<p>Concealed Weapon — Intent.</p> <p>1. On trial of an indictment for carrying a concealed weapon, the statute makes the possession prima fade evidence of concealment, and the burden is on the defendant to rebut the presumption by proof satisfactory to the jaO'-</p> <p>2. The law presumes the criminal intent in such case, and the defendant must likewise rebut this presumption.</p> <p>3. The language of the statute is, not “concealed on his person,” but “ concealed about his person,” and hence, if the weapon be within reach and control of the defendant, it is sufficient to bring the case within the meaning of the statute.</p> <p>(State v. Gilbert, 87 N. C., 527, cited, distinguished and approved).</p>

<p>Fornication and Adultery— Witness — Husband and Wife— Divorce.</p> <p>In fornication and adultery ¡he husband of the female defendant is not a competent witness to testify against her, although he may have obtained a decree for divorce a vinculo matrimonii before the trial of the indictment. But under The Code, §1353, the husband or wife of the defendant is competent to testify for him or her in all criminal actions or proceedings.</p> <p>(State v. Jolly, 3 Dev. & Bat., 110, cited and approved}.</p>

INDICTMENT for an assault and battery, tried at Spring Term, 1883, of Stokes Superior Court, before Graves, J. The assault is charged to have been committed with a deadly weapon. The defendant pleaded not guilty and former conviction.

INDICTMENT for forcible trespass tried at Spriug Term, 1883, of Columbus Superior Court, before MacRae, J. The indictment is against three defendants, and in substance as follows: The jurors, &c., present that defendants unlawfully, forcibly, &c., and with a strong hand, did take and carry away, out of the actual possession of J. F. Rushing, a certain hog, against the will of said Rushing, and D. C. Rushing, wife of said J. P. Rushing, the said J. F. Rushing being then and…

<p>Libel, evidence in — Official Character, proof of — Joint Trial, challenges to jury in— Witness.</p> <p>1. The matter set out in the indictment in this case is libellous, and in order to the justification of the defendant, he must show that the entire charge imputed to the prosecutor is true.</p> <p>2. Proof of the general bad character of an officer in other matters of which he had taken cognizance, will not be received to establish the truth of a libellous charge in reference to a particular matter.</p> <p>3. The official character of one may be proved by parol in an issue between other parties. It is necessary to show the record of his appointment only in proceedings where the officer undertakes to justify his own conduct.</p> <p>4. Upon a joint trial, where each defendant had the opportunity afforded by the tender of the jurors to make his own challenges; Held, that the judge properly refused to allow the jurors forming the panel to be withdrawn, and again tendered to one of the defendants to enable him to use his remaining challenges.</p> <p>5. A witness may be allowed to refresh his memory by reading a paper-writing or having the same read over to him.</p> <p>{Burke v. Blliott, 4 Ired., 355; Swindell v. Beeves, 7 Jones, 575; Norjleel v. Staton, 73 ST. C., 546, cited and approved).</p>

INDICTMENT for keeping a lottery, tried at May Special Term, 1883, of New Hanover Criminal Court, before Meares, J. The jury rendered a special verdict, the facts of which are sufficiently set out in the opinion of this court, and thereupon His Honor held the defendants, Lumsden and Rhodes, to be guilty; judgment; appeal by the defendants.

CRIMINAL ACTION tried at Spring Term, 1883, of Henderson Superior Court, before Avery, J. This was an appeal by the defendant from a judgment of the mayor of the town of Hendersonville, imposing upon the defendant a fine of fifty dollars for the violation of a town ordinance, which is as follows: “No. 25.

This was a criminal proceeding instituted in the court of a justice of the peace, in which the defendant was charged with selling spirituous liquor within four miles of Chapel Hill, in violation of the provisions of the act of 1879, ch. 232, and the act of 1880, ch. 45.

Appeae from an order made at Spring Term, 1883, of BuN■combe Superior Court, by Avery, J. The defendant and one Myers, after being tried and convicted of an affray in the inferior court of Buncombe, were- adjudged to pay the costs of the prosecution and- a fine of five dollars each. The judgment was afterwards, during- the term, suspended as to the fine upon payment of the costs of the prosecution.

MOTION to set aside a judgment taxing the prosecutor with costs, heard at Spring Term, 1883, of Bubke Superior Court, before Gudger, J. At spring term, 1880, an indictment waspending in the superior court of Burke county against A. W. Burley for the offence of perjury, and this defendant (Horton) was marked upon the indictment as prosecutor. At that term, the case was removed to the superior court of Watauga county for trial.

INDICTMENT for obstructing a public highway, tried at Pall Terra, 1883, of Madison Superior Court, before Gudger, J. The offence charged is that the defendant company, in constructing its line of road, used the public highway from the Tennessee line to Warm Springs, in Madison county, and thereby obstructed the same, so that the citizens of the state cannot pass along or over it with their vehicles, &c., and that the defendant did not construct another road as good and…

INDICTMENT for assault and battery tried at Fall Term, 1883, of Madison Superior Court, before Gudger, J. The indictment charged that the assault was committed upon one James Dover “with a certain deadly weapon, to-wit, a chair, knife and pistol.” The jury found a special verdict, which is substantially as follows: That the defendant struck Dover four blows with a stick; that said stick was not a deadly weapon and no serious damage was done; that on the same occasion the…

INDICTMENT for murder tried at Spring Term, 1883, of Lenoir Superior Court before McKoy, J. The writ of certiorari is ordered by this court to obtain a statement of facts upon which the charge of the presiding judge was based.