Volume 90 — North Carolina Reports

<p>Appeal by plaintiff from a judgment rendered at Spring Term, 1884, of Durham Superior Court, by MoKoy, J.</p>

<p>Appeal — Reference.</p> <p>No appeal lies from an order recommitting the report of a referee.</p> <p>(Lutz v. Cline, 89 N. C., ISO; Jones v. Call, lb., 188, approved).</p>

<p>Appeal — Reference and Referee.</p> <p>An appeal does not lie from an order recommitting the report of a referee with instructions to correct the same in conformity to the ruling of the court.</p> <p>(Lutz v. Cline, 89 N. C., 186; Jones v. Call, lb., 188, cited and approved).</p>

<p> Appeals. </p> <p>Appeals must be brought up to the term of this court next after they are taken.</p>

<p>Civil Actiom tried at Spring Term, L882, of Rutherford Superior Court, before Gudger, J.</p> <p>The defendant appealed.</p>

MotioN to set aside an execution heard at Spring Term, 1883, of Cumberland Superior Court, before Shipp, J. The motion was refused and the defendant appealed..

<p>Special PROCEEDING heard at Fall Term, 1883, of Iredell. Superior Court, before Gudger, J.</p> <p>The defendants appealed.</p>

<p>MOTION to dismiss an appeal from Ashe Superior Court, heard tit February Term, 1884, of Ti-ie SupreME Coujrt.</p>

<p> Appeal dismissed for want of justification of bond. </p> <p>The court express astonishment that appeals should be taken without perfecting them according to law, and say, that if they were disposed to grant relief against such negligence, they have no authority to do so.</p>

<p>Appeal — Certiorari—Mandamus.</p> <p>1. A petition for a certiorari as a substitute for an appeal, must be filed at the term of this court next succeeding the rendition of judgment against the petitioner.</p> <p>2. A mandamus requiring a judge to settle a case on appeal, upon exceptions filed by the appellee, will not be granted where the party himself is guilty of laches.</p> <p>(Brown v. Williams, S4 N. C., 116, cited and approved).</p>

<p>Appeal— Certiorari.</p> <p>A certiorari will not be granted for an alleged omission on the part of the presiding judge to state exceptions taken on the trial, where the record shows that lie settled the case on appeal, upon consideration, after his attention was called to the matters of complaint, It is only where it plainly appears that, by mistake or inadvertence, the judge failed to state something which ought to appear in the case, that a motion for the writ will be allowed.</p> <p>(McDaniel v. King, 89 N. C., 29, cited and approved).</p>

<p>MotioN to dismiss an appeal heard at February Term, 1884, ■of The Supreme Court.</p>

<p>Appeal will be Dismissed where Surety does not Justify — • Certiorari.</p> <p>.An appeal was dismissed, upon motion, for the reason that the surety to the bond had not justified ; and the appellant then applied for the writ of cer-tiorari, staling as an excuse for non-compiiance with the statute that it was ■ not the practice in that court for sureties to justify, and that he was not aware of the recent decisions enforcing the statutory obligation; Held, that upon his own showing he is not entitled to the writ. The court will require a strict compliance with the statute regulating appeals.</p> <p>( Wade v. Newbern, 73 N. C., 318 ; Elliott v. Holliday, 3 Dev., 377 ; Harshaw v. McDowell, 89 N. C., 181, cited and approved).</p>

Civil A.ctioN tried at Fall Term, 1883, of Granville Superior Court before MacRae, J. The defendants appealed from the judgment of the court below, and the plaintiff moved in this court to dismiss the appeal.

<p> Appeal, notice of. </p> <p>Where, under the Code of Civil Procedure, $80 (not brought forward in The Code of ’83), the plaintiff at the time of filing his complaint, failed to name some person upon whom service of pleadings and notices may he made, it was held that a notice of appeal filed by the defendant in the clerk’s office was sufficient under the statute to charge the plaintiff with notice thereof.</p> <p>■{Campbell v. Allison, 63 N. G., 568; Bryan v. Hubbs, 69 N. C., 423, cited and approved).</p>

MOTION to dismiss an appeal heard at Spring Term, 1883, of Robeson Superior Court, before MacRae, J. This was an appeal to the superior court from the action of the defendant board of commissioners in refusing to allow the plaintiff, late sheriff, certain credits on his accounts with the county. The defendants moved to dismiss the appeal. His Honor granted the motion, and the plaintiff appealed.

Civil Action tried at Spring Term, 1883, of Rowan Superior Court, before Graves, J. The plaintiff, as revenue collector of the United States, brought this action against the defendant for money collected by him as the deputy collector of the plaintiff, and not paid over.

<p> Injunction. </p> <p>An injunction granted before the issuing of a summons in the action is premature.</p> <p>(Kincaid v. Conly, Phil. Eq., 270, and 04 N. 0., 387 ; Trader v. Newsom, 88 JNT. C., 13, and cases cited, approved).</p>

MOTION by plaintiff for injunction in a suit pending in NORTHAMPTON Superior Court, heard at Chambers in .Tarboro on August 3d, 1883, before Philips, J. The court granted the motion and the defendants appealed.

<p>MOTION for inj unction heard at Fall Term, 1883, of Chaven Superior Court before Shepherd, J.</p> <p>The complaint states, in substance, that the defendant is a municipal corporation, the powers of which being vested in a mayor and city council, as provided by the private acts of 1879, ■ch. 42, amended by the act of 1883, ch. 117, entitled “An act to establish graded schools in Newbern”; that the plaintiffs are citizens and tax payers of the defendant city, and a tax of twenty cents has been assessed upon every one hundred worth of their property to establish graded schools in the city, which the defendant threatens to collect; that defendant’s powers of taxation are restricted by its charter, and that assessed, as aforesaid, is in excess of its powers of taxation; that said tax was not authorized by a vote of a majority of the qualified voters in the city, and the same is wrongfully assessed and cannot be legally collected. Wherefore, the plaintiffs ask for an injunction restraining its collection, &c.</p> <p>The defendant, admitting some of the plaintiffs’ allegations and denying others, relies mainly upon the said act of 1883, and states that an election was held on the 7th of-May, 1883, to determine whether the said assessment should be made in aid of ■the said schools, and that according to the returns of the same, the result was declared according to law that a majority of the •qualified voters of the city voted “for schools,” and in favor of the assessment of said tax. Wherefore, the defendant asks that the action be dismissed.</p> <p>In affidavits of plaintiffs, it is denied that a majority of the qualified voters, registered at and for said election, voted in favor of the tax; and that the same was never so declared as a fact by the authorities of the city; and it was also stated that there were many irregularities at said election — one affiant presenting himself at the polls and being refused the privilege of voting, and the poll-holders saying that the registration books had not* been revised, &c.</p> <p>The cause coming on to be heard on the pleadings and affidavits of both parties, it was adjudged that the motion for injunction be refused. From this judgment the plaintiffs appealed.</p>

<p>Executions — Sheriff cannot contradict his return thereon, but if erroneous may apply to court to have it corrected.</p> <p>1. An execution returned into court with an entry of satisfaction endorsed, in whole or in part, extinguishes so much of the debt and becomes a part of the record in the case. The officer cannot be heard to deny or contradict his return : as to him it is conclusive, and he and the sureties upon his bond are liable to the plaintiff in the execution for the sums so endorsed.</p> <p>2. If the return in such case be erroneous, the officer may have the same corrected upon a direct application to the court for that purpose</p> <p>(Bank v. Twilly, 2 Hawks, 5; Governor v. Twitty, 1 Lev., 153; McKdlar v. Bowell, 4 Hawks, 34; Snead v. Bhodes, 2 Dev. & Bat., 386; Piggoit v. Davis, 3 Hawks, 25; Poor v. Deaver, 1 Ired., 391; Edwards v. Tipton, 77 N. C., 222; Smith v. Low, 5 Ired., 197; Patterson v. Britt, 11 Ired., 383; Bland v. Whitfield, 1 Jones, 122; Simpson v. Hiatt, 13 Ired., 470; Hardin v. Cheekr 3 Jones, 135, cited and commented on).</p>

<p>Practice — Allegation and Proof.</p> <p>1. Proof without allegation is as ineffective as allegation without proof, and the court will take no notice of proof unless there be a corresponding allegation.</p> <p>2. In this case, an equitable defence was set up in the answer, but abandoned on the trial for the want of evidence to sustain it; and it was held error to receive evidence to support a new equitable defence, not suggested in the pleadings, but set up ore ienus.</p> <p>{McKee v. Lineberger, 69 N. C., 217; Shelton v. Davis, lb., 324; Hand v. Bank, 77 N. C., 152; Carpenter v. Kuffsteller, 87 N. C., 273; Grant v. Burgmyn, SS N. C., 95, cited and approved).</p>

<p>Processioning Land — The Code, §1924.</p> <p>1. The purpose of the act concerning the processioning of land is to establish the boundaries thereof, and a complete survey, with plat, certificate, &c., is indispensable to the fulfillment of the statutory requirements.</p> <p>2. Where a surveyor was prevented by an adjoining proprietor from running the disputed lines, and made report thereof to the clerk of the court, who appointed five freeholders to establish the same and they failed to agree, and thereupon others were appointed whose report showed the claims of the respective parties, but failed to comply with the statute in making a plat and certificate, &c.; Held, that the proceeding must be quashed. The surveyor should have resumed the work, adopted the lines settled upon by the co-operating freeholders, and completed the survey.</p> <p>(Carpenter v. Whitworth, 3 Ired., 204; Miller v. Heart, 4 Ired., 23; Matthews v. Matthews, Jb.,155; Hoyle v. Wilson, 7 Ired., 466; Wilson v. Shufford, 3 Mur., 504, cited and approved).</p>

<p>Process — Justice of the Peace — Judgment.</p> <p>L A justice of the peace lias no authority to depute a special officer to serve process in a civil action.</p> <p>2. A judgment rendered by a justice of the peace without notice to the defendant may be set aside by a direct application to the justice; and where he refuses to do so, the proper course on appeal is to give judgment reversing his ruling, and not to direct the justice to enter judgment vacating the original judgment.</p> <p>3. Erroneous, irregular and void judgments defined, and effect of discussed.</p> <p>(Marsh v. Williams, 63 N. 0., 871; Garliek v. Jones, 3 Jones, 404; Stale v. Barefoot, 89 N. C., 565; Stallings v. Gully, 3 Jones, 344; Armstrong v. Har-shaw, 1 Dev., 187; Jennings v. Stafford, 1 Ired., 404; Morgan v. Allen, 5 Ired., 156 ; Sooks v. Moses, 8 Ired., 88, cited and approved).</p>

MOTION by defendants to dismiss the action heard at Spring Term, 1883, of Robeson Superior Court, before MacPae, J. This was an action of claim and delivery, and the defendants^ counsel, who made a special appearance for the purpose, moved to dismiss the action upon the ground of a defect in the summons, namely, that the summons issued on the 26th day of October, 1882, requiring the defendants to “appear before the judge of our superior court, to be held for the county of…

<p>Civil ActioN tried at January Special Term, 1883, of EjrANKLIN Superior Court, before Philips, J.</p> <p>Verdict and judgment for plaintiff; appeal by defendant.</p>

Civil ActioN tried at Fall Term, 1883, of Currituck Superior Court, before Avery, J. The plaintiff claims damages alleged to have been occasioned by the running over and killing his mule by defendant’s train. 'The issues submitted were, first, did defendant negligently ki 1 the mule? and secondly, what was its value? The jury responded in the affirmative to the first issue, and'fixed the value of the mule at one hundred and seventy-five dollars.

<p>Civil ActioN tried at Fall Term, 1883, of Pasquotank Superior Court, before Avery, J.</p> <p>This action was commenced on the 1st day of February, 1883, and is prosecuted for the recovery of the amount due on an accepted draft against the defendants D. C. Lippincott and D. G. Bush (surviving members), and Burtis Barber, executor of Thornton Conrow, a deceased member of the partnership firm of Conrow, Bush & Lippincott, the drawers. The bill tvas drawn at Elizabeth City, on November 28th, 1873, in the sum of four thousand dollars, and payable at four months on the North Carolina Manufacturing Loan and Trust Company, and presented and accepted on the same day. There are several entries of payments endorsed on the instrument, the last of which, appearing to have been made before suit, is in these words:</p> <p>“Paid on this note 16th December, 1881, two hundred and forty dollars."</p> <p>The living partners in their answer admit the endorsed payment to have been made by their firm, while the executor, disclaiming any knowledge of his own or information sufficient to form a belief of the truth of the plaintiff’s allegations in respect to the payments, among other defenses, relies upon the bar of the statute of limitation, and the only issue submitted to the jury was whether the cause of action did accrue to the plaintiff within three years before the bringing ef the action.</p> <p>To rebut the defense, the plaintiff introduced as a .witness William Martin, of the law firm of Pool & Martin, who testified that they held the draft for collection, and that he presented it to the defendant Lippincott, who was the managing member of his.firm, and also acting cashier of the.Albemarle Bank, the same corporation as the acceptor with a change of name, and demanded payment on February 17th, 1880, when Lippincott paid him sixteen hundred dollars, and the same was at once credited on the bill by the endorsed acknowledgment written thereon. The several other payments bear no signature, nor does it appear in evidence by whom they were made, nor in whose handwriting the entries are. The partnership terminated by the death of Conrów in March, 1882.</p> <p>The defendant Barber contended that the primary liability resting upon the acceptor, and Lippincott being its cashier, as well as managing partner of the drawers, and it not appearing in what capacity he acted in making the payment, nor whose funds were used, the presumption was that it was as cashier and with the moneys of the bank; or,</p> <p>That the burden of showing that the payment was made on behalf of his firm or out of moneys belonging to it devolved upon the plaintiff, in order to the removal of the bar.</p> <p>The court refused to give these requested instructions and charged the jury that “if the said payment of sixteen hundred dollars was made by the said bank, or by Lippincott, as its cashier, or by the firm of Conrow, Bush & Lippincott, or either of them, within the three years before the bringing of the action, then they should find the issue against the defendant Barber.”</p> <p>There was a verdict and judgment for the plaintiff, and the defendant appealed.</p>

<p>Partnership — Agency—Demand and Refusal — Statute of Limitations — Trusts and Trustees — Issues.</p> <p>1. Where one of the members of a firm was constituted its general managing agent by the articles of partnership, and upon the death of one partner his executor consented to a continuance of the business, it was held that the manager became the agent of the executor as well as of the other surviving member.</p> <p>2. Held further: A demand and refusal to account are necessary to terminate the agency and put the statute of limitations in operation.</p> <p>3. Application of the statute of limitations to trusts, constructive and direct, discussed by Ashe, J.</p> <p>4. The ruling of the court below upon submission of the issues and order of reference affirmed.</p> <p>(MaNair v. layland, 3 Mur., 139; Northeott v. Casper, 6'Ired. Eq., 303; Commissioners v. Lash, 89 N. C., 159, cited and approved).</p>

<p>Civil Action tried at Spring Term, 1884, of Durham Superior Court, before McKoy, J.</p> <p>The defendants appealed.</p>

<p>Civil ActioN tried at Fall Term, 1882, of Mecklenburg-Superior Court, before Graves, J.</p> <p>The defendant appealed from the judgment of the court below.</p>

Civil ActioN for damages for injury to a horse, tried at Spring Term, 1883, of ÁNSON Superior Court, before Jiae-Kae, J. It is alleged in the complaint that the defendant Mathias was the agent, and in the employ of, and doing business for, the defendant corporation (The Taylor Manufacturing Company), and that while he was so employed, on or about the 1st day of October, 1881, he, as such agent, hired from the plaintiff a horse, and did “ neglect, abuse, overdrive, overload,…

<p>Parol license relating to land may'be revolced upon notice — Millsf condemnation of land, for use of — Costs of needless matter in transcript.</p> <p>1. The plaintiff built a mill, and, with tho verbal consent of the defendant,. constructed a dam across a stream upon land of the latter; and after the mill had been in operation for several years, the defendant withdrew his consent to the further use of the land for this purpose, and notified the plaintiff to level the dam, which he failed to do; and thereupon the defendant caused the obstruction to be removed; Held, in an action by plaintiff for damages: (1) That a parol license relating to land, either voluntary or supported by a valuable consideration, may be revoked by the owner without incurring liability in damages, where notice is given and reasonable opportunity afforded to remove improvements put up-thereunder. (2) The plaintiff should have taken a conveyance of the easement, or pursued the remedy pointed out for the condemnation of land for mill purposes. The Code, §1843.</p> <p>2. The appellant, though awarded a new trial, must be taxed with the costs of unnecessary matter sent up with the transcript.</p> <p>(McOracken v. MeOracken, 88 N. C., 272, cited and approved).</p>

Civil ActioN tried at Spring Term, 1884, of Catawba Superior Court, before Shipp, J. The defendant railroad company brought this suit to test its right to remove a house built for a depot, the defendant refusing to allow the same, and setting up a claim thereto upon the ground that it was a fixture.

CONTROVERSY without action under The Code, §567, heard at Spring Term, 1884, of Wake Superior Court, before Avery, J. The facts upon which this controversy is submitted are as follows: The plaintiff, a duly elected and qualified judge of the superior court, held the January term, 1884, of said court, beginning on the 7th day of January, 1884, and continuing for three weeks.

Civil ActioN tried at Fall Term, 1883, of Wilkes Superior Conrt, before Shipp, J. This action ivas commenced before a justice of the peace and brought by appeal to the superior court, to recover a balance alleged to be due on a note. The execution of the note was admitted and the defendant relied upon the plea of payment. The ease is stated in the opinion. Judgment for plaintiff; appeal by defendant.

<p> Superior Court has no power to modify deoree of this court. </p> <p>The superior court has no power to modify or change a judgment or decree of this court certified to the court below. Its powers are confined to incidental matters of detail necessary to carry the decree into efifect, not inconsistent therewith. The rule that the superior courts have authority to vacate or modify decrees made in a cause, at any time before final judgment, does not apply here.</p> <p>Calvert ¶. Peebles, 82 N. C., 334; State v. Lane, 4 Ired., 434; Orissett v. Smith, Phil., 297; Perry v. Tapper, 71 N. C., 380; Push v. Steamboat, 68 N. C., 72; Pay v. Pay, 12 Ired., 24; Ashe v. Moore, 2 Mur., 383; Welch v. IGngsland, 89 N. C., 179, cited and approved).</p>

<p>CONTEMPT PROCEEDING heard at chambers in Morganton on the 12th of September, 1883, before Graves, J.</p> <p>This was a motion to attach the defendants W.W. Rollins and C. M. McLoud for contempt, and to require them to make a sworn statement and inventory of their receipts and disbursements of the funds, and their entire transactions in reference to the affairs of the railroad company, as set out in the opinion of this court, and to require'them to pay over to the receiver, B. F. Long, the sum of $23,250, alleged to be in their hands. The motion was based upon the affidavit of the receiver and others.</p> <p>From the judgment finding the respondents guilty of contempt and imposing a fine, and directing payment to the receiver, the respondents appealed.</p>

Motion heard at Chambers on August 29, 1883, in an action pending in McDowblL Superior Court, before Graves, X The plaintiff moved to make the Western North Carolina railroad company a party defendant. The motion was refused on the ground that the court had not the power to grant it, and the plaintiff appealed.

<p>Jurisdiction — Action for deceit and false warranty.</p> <p>1. The former ruling in this case (S8 N. C., 190), to the effect that an action for deceit and false warranty in the sale of a horse, is cognizable in the superior court, though the damages claimed amount only to fifty dollars, is affirmed.</p> <p>’2. Held further: Although some of the articles in the complaint show that the plaintiff’s claim rests in contract, yet taken in connection with the'others and considering the complaint as an entirety, it sets out a cause of action ex ddieto.</p> <p>S. Where a complaint contains a cause of action of which the court has not, and others of which it has jurisdiction, the court will disregard the former and proceed to try the latter.</p> <p>i( TFciísoíi v. Dodd, 72 N. C., 240; Hicks v. Skinner, Ib., 1; Haywood v. Daves, 81 N. C., 8; Lewis v. Rountree, lb., 20; Devereux v. Devereux, lb., 12; Mizell v. Simmons, 82 N. C., 1; Lassiter v. Ward, 11 Ired., 443; Blanton v. Wall, 4 Jones, 532; Chamberlain v. Robertson, 7 Jones, 12; Street v. Tuck, 84 N. C., 605; Finch v. Baskerville, 85 N. C., 205, cited and approved).</p>

Civil ActioN tried at Spring Term, 1883, of McDowell Superior Court, before Gudger, J. ■ Upon the call of this case, the defendant’s counsel moved to dismiss the action upon the ground of a want of jurisdiction', and “ it appearing to the court that it has not jurisdiction of the subject matter of the action, it is adjudged that the same be dismissed at plaintiff’s costs,” and from this ruling the plaintiff appealed.

<p>EJECTMENT tried at Fall Term, 1883, of PeesoN Superior Court, before MaaRae, J.</p> <p>Both the plaintiffs and defendants claim to derive title from Larkin Brooks, deceased. The plaintiffs are the heirs-at-law of David Brooks, and the defendants a,re the heirs-at-law of the said Larkin Brooks.</p> <p>On the trial the plaintiffs put in evidence a deed from Larkin Brooks and his wife, to David Brooks', dated July 22d, 1873.</p> <p>The defendants denied the validity of this deed upon the ground that their ancestor Larkin Brooks was insane, and had not sufficient mental capacity at the time he signed this deed to execute such an instrument. Numerous witnesses were examined before the jury in respect to his mental capacity, and this was the principal question at issue.</p> <p>The defendants Z. T. Brooks and Larkin Brooks, Jr., set up in their answer, as a matter of special defense, that David Brooks, the ancestor of the plaintiffs, had in his life-time contracted in writing to sell to each of them a part of the land in dispute.</p> <p>The plaintiffs read the answer of these defendants in reference to such special defence, as an estoppel upon them. They then moved the court for leave to amend their answer by striking out ■so much thereof as referred to such contract of purchase and as embraced such special defense. The court refused to allow the motion to amend and the defendants excepted. No testimony was introduced by the defendants in support of said special defense.</p> <p>The last named defendants then moved the court to allow them to enter a disclaimer of all title and claim to the land in ■controversy derived from David Brooks. This motion was also denied by the court. They then prayed the court to charge the jury that they disclaimed and abandoned all claim under David Brooks. The court declined to' grant the prayer, and they again ■excepted. They then requested the court to instruct the jury that the plaintiffs had introduced no evidence as to the location of the land mentioned in the complaint. The court declined to grant the prayer, because it ■was admitted by counsel on both sides at the beginning of the trial, that both plaintiffs and defendants claimed under Larkin Brooks, and that there Avas no-controversy as to the location of the land, and that as the defendants’ connsel had stated that they would introduce no testimony in support of the third defense of the answer, the only questions for the jury were, the mental condition of Larkin Brooks at the time he executed 'the deed to David Brooks, and the-rental value of the land on the question of damages; and further, because one Ruffin R. Woody, the first witness introduced by plaintiffs, had testified “that he was well acquainted with the lands described in the deed from Larkin Brooks to-David Brooks, and as to the value of the same; that they were known as the home place and the Mayo tract; that Larkin Brooks was in possession at the execution of the deed; that he remained in possession up to his death, and his heirs have been in possession ever since his death.” The defendants excepted.</p> <p>The counsel for the defendants insisted upon his right to close the argument to the jury. The court held otherwise, and the defendants again excepted, and appealed from the judgment.</p>

Special PjkoceediNg for partition of land commenced before the' clerk and heard at Spring Term, 1883, of RobesON Superior Court, before MaoRae, J. The petition alleged that in 1851 one John O. Daniels conveyed the land in question to Demaris Thompson, Oliver Thompson, Absla Thompson, James Thompson and Charity Thompson ; that Oliver died without issue; that Absla intermarried with the other plaintiff, Hybert Atkinson, and Demaris intermarried with Dugald C. McIntyre, who…

Special PROCEEDING- against the defendant executor of Nancy Waller, for an account and the payment of legacies bequeathed to the plaintiffs, commenced before the clerk and heard on appeal at Fall Term, 1883, of Granville Superior Court, before MacRae, J. The defendant demurred to the petition as follows: “That the petition or complaint states no cause of action whatever against him.

Civil Action tried at January Term, 1884, of Robeson Superior Court, before MacRae, J. The defendant excepted to the ruling of the court below and appealed from the judgment rendered.

MOTION by defendant to vacate an attachment heard at Fait Term, 1883, of Catawba Superior Court, before Graves, J. The court allowed the motion to vacate, but refused to dismiss the action. Plaintiff appealed.

<p>Practice — Attachment—Res Adjudícala— Trial.</p> <p>1. Where an appeal is taken from a refusal to discharge an attachment, the court below cannot in the meantime allow a motion “ to dismiss” the same to be entered, for the appeal takes the case out of its jurisdiction. The motion to dismiss is in effect a motion to discharge; and upon the dismissal by this court of the motion to discharge, the judgment appealed from remained undisturbed and conclusive, and the matter embraced therein is res adjudícala.</p> <p>2. In attachment and other ancillary proceedings it is competent for the court to find the facts from the affidavits and other proper evidence; and a party consenting to this mode of trial cannot afterwards demand a jury trial. Const., Art. iv, §13.</p> <p>(Roulhac v. Brown, 87 N. C., 1; Holcombe v. Oom’rs, 89 JST. C., 846; McRae v. Com’rs, 74 N. C., 415 ; Bledsoe v. Nixon, 69 N. C., 81; Bank v. Twilty, % Dev., 386; Burke v. Turner, 85 N. C., 500; Sanderson v. Daily, 83 N. C., 67; Mabry v. Henry, lb., 298; Wilson v. Lineberger, 82 1ST. C., 412; Isler v. Murphy, 71 N. C., 436; Baker v. Cordon, 85 N. C., 116; Leggett v. Leg-gett, 88 N. C,, 108; Wessell v. Rathjohn, 89 N. C., 377; Armfield v. Brown, 70 N. ,C., 27; Keener v. Finger, lb., 35; Moyev. Cogdell, 66 N. C., 403; Ileilig v. Stokes, 63 N. C., 612; Foushee v. Pattershall, 67 N, C., 453, cited and approved).</p>

<p>PETITION by defendant for modification of judgment, beard at February Term, 1884, of The Supreme Court.</p>

• Civil ActiON tried at Spring Term, 1883, of BladeN Superior Court before JllaeRae, J. This was an action of claim and delivery brought by the plaintiff to recover certain personal property (cotton, corn, &c.) alleged to be wrongfully detained by the defendant. The case is stated in the opinion. There was judgment against the plaintiff and sureties on his undertaking for the sum of six hundred dollars and costs.

<p>Judgment by default and inquiry — Evidence—Goods sold and delivei'ed.</p> <p>Upon an inquiry of damages, in a suit for goods sold and delivered, where judgment was taken by default for want of an answer, evidénce in bar of the action is not competent. The judgment by default admits the cause of action, and the plaintiff is only required, upon the inquiry, to make proof of the delivery of the goods and their value.</p> <p>(Garrard v. Dollar, 4 Jones, 175 ; Swepson v. Surnmey, 64 N. C., 293 ; Darker v. House, 06 N. C., 374, cited and approved).</p>

<p>Civil ActioN tried at Spring Term, 1883, of Orange Superior Court, before Gilmer, J.</p> <p>The defendants appealed.</p>

<p>Special Proceeding for account and settlement, commenced before the cleric, and heard at January Special Term, 1883, of RICHMOND Superior Court, before Graves, J.</p> <p>This was a motion to amend the record in said proceeding, and upon consideration of the same, after argument of counsel, the judge ordered that the judgment of the clerk be reversed, and remanded the proceeding to the probate court to be disposed of according to law, and from this judgment the plaintiff, Margaret A. McEachern, appealed.</p>

<p>PjdtitioN by plaintiffs to rehear filed November 12th, 1883, and heard at February Term, 1884, of The Supreme Court.</p>

Civil ActioN tried at Spring Term, 1882, of NORTHAMPTON Superior Court, before Bennett, J. This is an action of trover for the conversion of a lot of cotton, corn and fodder. The jury found the issues in favor of the plaintiff; judgment accordingly; appeal by defendants. The facts are stated in the opinion of this court.

Civil ActioN tried at Fall Term, 1882, of Hertford Superior Court, before Gilliam, J. The action was commenced in the court of a justice of the peace, and the affidavit of the plaintiff, treated as his complaint, is in substance as follows: The plaintiff leased to defendant a certain tract of land for cultivation during the year 1881, and the defendant agreed to pay and deliver to plaintiff nine hundred pounds of lint-cotton as rent for the same; and also, another tract for…

Special PROCEEDING for dower, commenced before the clerk and tried at Spring Term, 1883, of Wilson Superior Court, before McKay, J. The plaintiff is the widow of Henry Barnes, and states in her petition that the defendants Wiley Lamm and Robinson Raper claim possession and title to the two tracts of land therein described, and asks to have her dower in the same allotted to her. The petitioner afterwards compromised her claim upon the tract in possession of said Lamm.

<p>Jurisdiction — Issues of Fact — Right of trial by jury — Witness, deposition of.</p> <p>1. The jurisdiction of the supreme court over issues of fact, under article four, section eight of the constitution, will be assumed upon two conditions: 1. If the matter be of such an equitable nature as a-court of equity under the former system took exclusive cognizance of. 2. If the proofs are written and documentary, and in all respects the same as they were when the judge of the court below passed upon them.</p> <p>2. A party under the present system has a right to a jury trial of an issue of fact, as well when it involves an equitable as a legal element entering into the merits of the controversy.</p> <p>3. Depositions of witnesses are never taken by a court while engaged in the trial of a cause.</p> <p>(Goldsborough v. Turner, 67 N. C., 403, commented on ; Lee v. Pearce, 68 H. C., 76; Heilig v. Stokes, 63 if. C., 612; Jones v. Boyd, 80 N. C. 258; Shields v. Whitaker, 82 N. 0., 516; Leggett v. Leggett, 88 N. 0., 108; Wessell v. Balh-john, 89 N. C., 377, cited and approved).</p>

Civil AotioN tried at December Special Term/ 1883, of Moore Superior Court, before MaeRae, J. The plaintiffs instituted this action on August 7, 1880, and ask that the orders and decrees iu an ex-parte proceeding, in the late court of equity of Moore county, for the sale of land for partition, be set aside and declared void, and that they be decreed owners of the land and entitled to the possession thereof.

Civil Action tried at Spring Term, 1883, of ANSON Superior Court, before MaoJRae, J. This is a creditors’ bill filed by the plaintiffs against the defendants, who are the widow and son of Henry Powell, deceased, who died intestate, and seized and possessed of the house and lot, in the town of Wadesboro, described in the complaint. The son and only heir was more than twenty-one years of age, and was the administrator of the intestate’s estate.

MOTION by defendant for injunction heard at Spring Term, 1884, of DURHAM Superior Court, before MoKoy, J. The motion was granted and the plaintiff appealed.

Aiuusal from a judgment of a justice of the peace heard at Fall Term, 1883, of JoNES Superior Court, before Philips, J. The action is to recover, the value of one bale of cotton sold by the defendant, sheriff of Onslow county, under an execution issued to enforce the payment of a debt contracted in 1880, without, having allotted to the plaintiff his personal property exemption.

Civil ActioN, tried on exceptions to the report of a referee, at Spring Term, 1883, of WASHINGTON Superior Court, before Shepherd, J. The court overruled the exceptions to the report of W. X). Pruden, referee, confirmed the report and gave judgment in favor of the defendant, from which the plaintiff appealed.

EJECTMENT tried at Spring Term, 1883, of Asi-ie Superior Court, before Gudger, J. The plaintiff is a married woman. She intermarried with her present husband, Martin McGlennery, in the year 1850. Held: and the defendants excepted and appealed from the judgment.

Civil ACTION tried .upon demurrer to complaint at Spring Term, 1883, of RobesoN Superior Court, before Mac'Rae, J. The court overruled the demurrer and gave judgment for plaintiffs and the defendants appealed.

<p>New Trial — Discretionary Rower — Newly-discovered Evidence.</p> <p>1. An application for a new trial, except for error of, law in its conduct, is 'addressed solely to the discretion of the presiding judge, -whose decision is not reviewable on appeal; Therefore, where a party moved for a new trial upon the ground that he had found a witness whose testimony was material to his case, and stating in his affidavit how he came into possession of the name of the witness, &c.; Held, that the judge’s refusal of the motion was conclusive.</p> <p>2. Held further: The granting a new trial for newly-discovered evidence and for matter occurring since the trial, where the application is made to this court, is a matter of sound discretion, in the exercise of which the court will be governed by the peculiar circumstances of the case.</p> <p>(Moore v. Edmislon, 70 NI 0., 471; Thomas v. Myers, 87 N. 0., 31; Pain v. Pain, 80 N. C., 322; Ballon v. Webster, 82 N. C., 279; Vest v. Cooper, 68 N. 0., 131; Bledsoe v. Nixon, 69 N. C., 81; Henry v. Smith, 78 N. C., 27 ; Horne v. Horne,75 N.C.,101; Powellv. Watson, 6 Ired. Eq., 94; Houstonv. Smithy lb., 264; Eyehe v. Patton, 8 Ired. Eq., 295, and 3 Jones Eq., 332; Holmes v. Godwin, 69 N. C., 467; Bank v. Tiddy, 67 N. C., 169; Moore'v. JDiekson, 74 N. 0.-, 423; Slate v. Lindsey, 78 N. G., 499, cited, commented on and approved).</p>

Motiox to vacate an attachment, in an action pending in Meckeenbubo Superior Court, heard at Charlotte on March 16th, 1883, before MaoRae, J. From the judgment vacating the attachment the plaintiffs appealed.

<p>Civil Action tried at Fall Term, 1883, of Cataavba Superior Court, before Graves, J.</p> <p>The plaintiffs appealed.</p>

Civil Action tried at FalL Term, 1883, of Chow AN Superior Court, before Avery, J. John M. Jones, owning the lot of land in the town of Eden-ton described in the complaint, and the recovery of possession of which is the object of this action, on February 9th, 1866, conveyed the same by deed executed by himself of the first part, Thomas W. Hudgins of the second, and Martha A. Jones, his wife, of the third part, to the said Thomas W. Hudgins in fee upon the following declared…

<p>Civil Actiox tried at Spring Term, 1883, of Ashe Superior •Court, before Gudger, J.</p> <p>The defendant administrator appealed.</p>

Civiii ACTION tried at Spring Term, 1883, of NORTHAMPTON Superior Court, before Philips, J. The suit was brought by Samuel Calvert, and after his death his executor, Hughes, was made party plaintiff. 1.

<p>Civil Action for specific performance of a contract, to convey land, tried at Fall Term, 1883, of Ci-iati-iaM Superior Court, before MacRae, J.</p> <p>The defendant appealed.</p>

CiviIj ActioN tried at January Special Term, 1883, of Richmond Superior Court, before Graves, J. This action was to foreclose a mortgage, and the plaintiffs moved to confirm a sale of the mortgaged lands described in the complaint, which was had in pursuance of a decree theretofore rendered in favor of the plaintiffs as mortgagees against the defendant as mortgagor.

Civil ActioN to foreclose a mortgage tried at June Term, 1883, of New Hanover Superior Court,^before McKoy, J. On the 8th day of January, 1871, Maria A. Mebane was-indebted to the Mechanics’ Building and Loan Association in the sum of $3,403.

<p>Mortgage of thing not in esse, valid — Agricultural.lien and mortgage included in one deed — Practice.</p> <p>1. A crop to be planted on one’s own land, or on land let to him, as well as a crop-planted and in process of cultivation, is the subject of a valid mortgage.</p> <p>2. An instrument may be so framed as to operate in one part as a mortgage, and in another as an agricultural lien; but to create the latter, it must conform to the requirements of the statute allowing agricultural liens.</p> <p>3..The plaintiff is legally entitled to the property sued for, by virtue of the first mortgage.</p> <p>No equitable rights of the defendant are passed upon.</p> <p>The judgment here is confined to this case, and the court takes no notice of the fact stated in the record, as to other cases turning upon the principles applicable to this. *</p> <p>(Cotton v. Willoughby, 83 N. C., 75; Harris v. Jones, lb., 317; Clark v. Farrar, 74 N. C., 686; Palapsco v. Magee, 86 N. C., 350, cited and approved).</p>

Civil ACTION tried at Eall Term, 1883, of RICHMOND Superior Court, before McKoy, J. This action is for the conversion of five bales of cotton, the plaintiff claiming the same as landlord of one Hiram'Leviner, to whom the plaintiff had leased certain lands.

Civil ActioN tried on appeal from a judgment of a justice of the peace, at Spring Term, 1883, of Buetcombe Superior Court, before Avery, J. This action was brought to recover the amount due on a note of which the following is a copy:. “ Twelve months after date we or either of us promise to pay to J. T. Pickens ninety dollars for value received of him, as witness our hands and seals,, with interest from date. October 22, 1861.” (Signed) F. M. Ballew. ro T. B. RyMer.

Ejectmbkt tried at Spring Terra, 1883, of Robeson Superior Court, before MacRae, J. Tbc action way tried by the court upon a ease agreed and a jury trial waived, except as to the amount of damages.

CiyiIj ActioN tried at Spring Term, 1883, of ALEXANDER Superior Court, before Gudger, J. This action was brought to recover damages for the breach of covenants contained in a deed from the defendant to the plaintiff.

<p>Ejectment tried at Spring Term, 1883, of Alexander Superior Court, before Gudger, J.</p> <p>Verdict and judgment for defendant; appeal by plaintiffs.</p>

<p>PETITION by plaintiff for certiorari, heard at February Term, 1884, of The Supreme Court.</p>

EjectmeNT tried at Fall Term, 1883, of Wilkes Superior ■Court, before Shipp, J. The plaintiff in the first artiole of his complaint, alleges himself to be the owner and entitled to the possession of a tract of land described by well-defined boundaries and containing one hundred acres. In the second article he alleges “ that the defendant is in the possession of a part of said'tract,” and unlawfully withholds the same,-without further and more particular description.

EjectmeNT tried at Spring Term, 1883, of Arson Superior Court-, before MctcRae, J. The defendants appealed from the ruling and judgment of the court below’.

EjectmeNT tried at Spriug Term, 1879, of McDowell Superior Court, before Graves, J. The complaint is in the usual form for the recovery of land, averring ownership in the plaintiffs and their right to the possession of the tract of land described with definite boundaries, and the wrongful occupation and withholding by the defendant.

Civil Action tried at Spring Term, 1883, of CiiowaN Superior Court, before Shepherd, J. The following facts were agreed upon :■ 1. Reddick Watson died in April, 1881, seized of a bouse and lot in the town of Edenton, leaving the plaintiffs his only heirs-at-law. 2.

<p>Ejectment — Trespass—Landlord and Tenant.</p> <p>Plaintiff leased to a tenant and defendant evicted the tenant, thereupon the- .. plaintiff and his tenant joined in an action against the defendant for the recovery of possession of the land and for damages. After verdict for defendant, the plaintiff moved for a new trial, upon the ground that the action was for a trespass on the possession of the tenant, which motion was refused -■</p> <p>Ilelil, no error — there being no allegation or issue in rel'erenee to the tenant’s possession, and plaintiffs’ resting the whole case upon their title.</p> <p>■(Smith v. Ingram, 7 Ired., 175; Gilchrist v. McLaughlin, lb., 310; Graham v. Houston, 4 Der., 232, cited and approved).</p>

<p>Ejectment — Receiver.</p> <p>The act of assembly requiring a defendant in ejectment tp .g-ive bond for costs and damages before putting in a defence to the action (The Code, §237), does not abridge the power of the court to -appoint! a receiver to secure the rents and profits.</p> <p>(Rollins v. Henry, 77 N. C., 467 ; Vaughan v. Vincent, Sg N- C., 116 ; Jonen v. JBoycl, SO N. 'J., 25S ; Twitty v. Logan, lb., 69 ; Levenson v. Elson, SS N. (’., 1S2; Horton v. White, 84 N. C., 297, cited and approved).</p>

EJECTMENT tried at Spring Term, 1883, of Wilkes Superior Court, before Graves, J. The plaintiffs claim to be, but the defendant denies that they are the owners of. the land described in the complaint, and admits he is in possession. The following issues were submitted to the jury: 1. Are the plaintiffs the owners, and entitled to the possession of the land described in the complaint? 2. If the plaintiffs have sustained damage, what is the amount thereof?

<p>Ejectment, verdict and judgment conclusive — Pleading—Estoppel —Judgment upon Demurrer.</p> <p>1. In ejectment, as well as in an action to recover personal property, the verdict and judgment conclusively.determine the matter in issue between the parties.</p> <p>2. Where plaintiff’ in ejectment claims tinder a mortgagee’s sale, and also by reason of an estoppel arising out of a judgment against the defendant in a former action, involving the title to the same land ; Held, that a general denial of plaintiff’s ownership does not controvert the existence of the record of said judgment.</p> <p>S. A judgment rendered upon demurrer is as conclusive,' by way of estoppel, its a verdict finding the facts confessed would have been.</p> <p>(Davis v. Higgins, 87 N. C., 298 ; Hartley v. Houston, 65 N. C., 137; Kitchen 'v. Wilson, 80 N. C., 191, cited and approved).</p>

MOTION to be made a party defendant, in an action of ejectment, heard at Spring Term, 1883, of Robeson Superior Court, before MacRae, J. The motion was denied and the applicant appealed.

EJECTMENT trier¡ at Full Term, 1883, of Caswell Superior Court, before Mac Rae, J. The facts relating to the matters passe! upon by this court are stated in its opinion. The defendants appealed.

EjectmbNT tried at Spring Term, 1883, of Northampton Superior Court, before Philips,• J. On the trial the plaintiff, in support of his title, introduced a judgment rendered and docketed in said county on the 10th of February, 1869, in favor of Mary E. Phillips as guardian of the children of John D. Phillips and against John W. Pate and others for one hundred end fifteen dollars, with compound interest on the same from January 1st, 1881, till paid, and for costs.

<p>EjectmeNt tried at Fall Term, 1883, of Moore Superior Court, before McKoy, J.</p> <p>The plaintiff appealed.</p>

MotioN in the cause heard at January Term, 1883, of Wake Superior Court, before McKoy, J. This motion is made in an action tried at fall term, 1875, of Wake superior court, and upon the overruling of exceptions to the commissioner’s report the defendant appealed to this court, which affirmed the ruling of the court below. See 74 N. C., 557. His Honor refused the motion, and the defendant appealed.

<p>MOTION by defendant to correct a judgment heard at February Term, 1884, of Ti-ie Supbejie Court.</p>

MotioN to set aside a judgment in Buncoiibe Superior Court, beard at Chambers on January 30th, 1884, before Qudger, J. The defendants were served with a summons requiring them to appear at the clerk’s office within ten days thereafter, and answer a complaint which would be filed therein, or application for the relief demanded in the complaint would be made.

<p> Excusable Negligence. </p> <p>The sickness of an attorney is a sufficient excuse for want of diligence in perfecting an appeal.</p>

<p>Civil Actiok tried at Fall Term, 1883, of NojrthamptoN Superior Court, before McKoy, J.</p> <p>A motion to dismiss the defendants’ appeal was made in this •court.</p>

<p>Civil ActioN tried at January Special Term, 1884, of New HaNOVER Superior Court, before Gilmer, J.</p> <p>The action is for damages resulting from the alleged negligence of defendants in causing the burning of plaintiffs’ house. The case is stated in the opinion of this court. Verdict and judgment for plaintiffs; appeal by defendants.</p>

<p>Evidence — Presumption of death from continued absence, may be rebutted by declarations of deceased members of family.</p> <p>Where evidence was received of the prevailing belief in one’s family and of thegener.il reputation in the neighborhood, from his protracted and continued absence, that he was dead, it was held that the declarations of his deceased wife, as to the fact of her receiving a letter from him since he left, are admissible to negative the force of the reputation of the death.</p> <p>(Clements v. Hunt, 1 Jones, 400, cited and approved).</p>

<p>EjectmeNT tried at Spring Term, 1883, of Wake Superior Court, before Philips, J.</p> <p>Judgment for plaintiff, appeal by defendants.</p>

Civil AcxioN for specific performance of a contract tried at Fall Term, 1883, of GrANVIlle Superior Court, before Mao-JRae, J. The defendants appealed from the ruling and judgment of the court below.

MOTION to make the defendant a party toa judgment against the defendant’s intestate, and for leave to issue execution against him, heard at Spring Term, 1883, of Bueke Superior Court, before Gudger, J. The motion was made before the clerk of the superior court, and the judgment upon which leave to issue execution was asked was rendered before a justice of the peace in favor of the plaintiff against J. B. Kincaid, executor of M. W. Kincaid, on the first of February, 1871, and…

This was an appeal from the order of the clerk granting leave to issue execution upon a judgment rendered by a justice of the peace in favor of the plaintiffs for twenty-two dollars and fifteen cents and costs, on the first day of March, 1869, and docketed in the superior court on the 22d day of May, 1869, upon a transcript from the justice.

<p>Civil ActioN tried at Spring Term, 1883, of- RobesoN Superior Court, before MacRae, J.</p> <p>Judgment for plaintiffs; appeal by defendant.</p>

<p>Statute of Limitations — Banh, personal liability clause in charter of.</p> <p>1. The three year statute of limitations begins to run, against an action to enforce the personal liability of stockholders of a bank under a clause in its charter, from the date the bank suspends specie payments; and this, whether the assets of the corporation are exhausted in payment of debts, or not.</p> <p>2. The liability of the stockholders arises when the bank refuses or ceases to redeem its bills and is notoriously and continuously insolvent.</p>

Civil Action tried at Fall Term, 1883, of Ashe Superior Court, before Graves, J. In this case the plaintiff, a resident of this state, asks that the-defendant commissioners and their agents be restrained from collecting taxes upon his stock held in the bank of Abingdon, a corporation formed under an act of the legislature of the state of Virginia, and doing business in that state.

<p>Agency — Corporations—Statute of .Frauds.</p> <p>L A draft signed by an agent is a sufficient memorandum of a contract to fulfill the conditions of the statute of frauds, and binds the principal, though the name of the latter does not appear in the instrument. The authority of the agent may be shown aliunde, and such authority need not be in writing,</p> <p>2. Therefore, where an agent of a corporation agreed to buy land and deliver drafts to the vendor, which were drawn by one of its officers and endorsed by said agent, and a deed was thereupon executed to the company, but. the drafts were protested for non-payment; Held, in an action by the vendor to recover the purchase money, that the company is bound by the contract.</p> <p>(Mizell v. Burnett, 4 Jones, 249; Green v. Railroad, 77 N. 0., 95; Oliver v. Dix, v. Hooker, Phil. Eq.,' 193, cited and approved). 1 Dev. & Bat. Eq., 158; Washburn v. Washburn, 4 Ired. Eq., 306; Phillips</p>

<p> Corporation, deed of, at common laxo and, tinder the statute. </p> <p>1. A deed of a corporation, the concluding clause being, In witness whereof the said corporation “ has caused this indenture to be signed by its president and attested by its secretary, and its common seal to be affixed/'’ with the signatures and seal, is properly executed as a common law deed.</p> <p>2. The statute providing that the president and two other members of a corporation shall sign its deed conveying real estate (.Ke.v, Code, eh. 20, 3221, is an enabling act, and does not exclude the common law method.</p>

EjectmeNT tried at Spring Term, 1883, of Coiaimbus Superior Court, before MaoRae, J. .The plaintiff alleges, in his complaint that the defendants as mayor and commissioners of the “ town of Fair Bluff” arc in possession of the lands described therein and unlawfully withhold from him possession thereof. The defendants deny the allegation of the complaint.

The purpose of this suit is to restrain the defendants, the mayor and commissioners of the town of Laurinburg, a municipal corporation formed by law, from employing and paying counsel for services to be rendered in certain actions, civil and criminal, depending in the superior court, out of the public funds in the treasury derived from taxation.

Civil ActioN tried at Spring Term, 1883, of Chowan Superior Court, before Shepherd, J. The plaintiff brought this action against the board of coun-ci linen of the town of Edenton, to recover damages for an injury occasioned by alleged negligence on the part of the town in failing to keep the streets in proper condition. The plaintiff was going along the side-walk on Main street, at night, and fell into a pit and received the injury complained of.

Civil Action tried at Fall Term, 1883, of Chowan Superior Court, before A very, J. The plaintiff brings this action against the defendants to recover damages for injuries to himself, his horse and buggy, occasioned by the falling in of a decayed bridge, forming part of a highway across a swamp in the county of Chowan, which the defendants, as the plaintiff alleges, were bound by law to keep in good and reasonable repair, but which they permitted to become ruinous and…

MeKoy, J. The act “ to establish a graded school in Shoe Heel districts number one and two for white children,” ratified on the 8th • day of March, 1883, among other things, provides as follows: Acts 1883, ch. 282:— Section 1.

<p>Counties and County Commissioners — School Districts.</p> <p>See syllabus in preceding case.</p>

<p>Coimties and County Commissioners — Contract—■Counter-claim— Miscondud in Office.</p> <p>1. Orders upon the county treasurer were issued to the jailer to pay for provisions furnished prisoners in jail, and assigned by him to the plaintiff. Afterwards the commissioners passed a resolution forbidding payment by the treasurer upon the ground of official misconduct in the jailer in setting the prisoners free without requiring them to pay costs for which they had been committed, thereby causing loss to the county; Held, that the acts imputed to the plaintiff’s assignor do not constitute a bar to an action to recover the amount of the orders.</p> <p>2. The malfeasance charged is a tort, and .is separate and distinct fnnn the contract out of which the cause of action arose, and therefore canimt i.e recognized as a counter-claim.</p> <p>(Johnson v. Bell, 74 N. C., 35ó, cited and approved).</p>

Civil ActjoN tried at Fall Term, 1883, of Catawba Superior Court, before Graves, J. The plaintiff brought this action to recover compensation for services rendered by him to David Whissenhunt, the testator of the defendants, under a contract in writing and under seal, of which the following is a copy: “This day I, David Whissenhunt, do agree for said J. F. Monday, of Alexander county, to have one-half of whatever I may recover in the suit or secure iu 'settlement, between,…

Civil Action tried at Fall Term, 1883, of Cherokee, Superior Court, before Gudger, J. The plaintiff alleges that in the month of November, 1878, he was elected to the office of secretary, associated with that of treasurer, of the defendant company, by its board of directors, acting in pursuance of the by-laws, at a fixed compensation of two dollars per day for his services and necessary expenses, and immediately entered upon the discharge of his official duties; that he…

<p>Contract,'place of — Bankruptcy, surety not relieved by discharge of his principal in — Evidence.</p> <p>An action was brought against an endorser of a note executed by a firm in renewal of a former note, the transaction taking place in South Carolina, but the note was sent and deliveredto the plaintiff bank at Charlotte in this state to be discounted. One of the firm was adjudicated a bankrupt upon his individual petition and the note was proved against his estate, and the plaintiff bank and other creditors gave their assent as required by law to his discharge. The bank discounted the note and at maturity extended the time of payment to the makers for a valuable consideration, but reserved its rights against the endorser; Held—</p> <p>(1) The court properly refused to chal-ge there was no evidence of a reservation of right against the defendant surety.</p> <p>(2) The court also properly refused to permit the bankrupt’s schedule to be introduced as evidence that the contract was made in South Carolina. It relates to his own liabilities and was not competent in the controversy between the parties to this suit and in their relations to each other.</p> <p>(3) The evidence of a member of the firm in reference to the manner of endorsement of the renewal note for the purpose of continuing the negotiated loan, was admissible, as tending to show where the contract was to he made.</p> <p>(4) The contract is governed by the laws of this state — it being consummated here and efficacy given to the note by its delivery and negotiation at the bank, in pursuance of the intent of all the parties; and no demand or notice of non-payment is required to bind the endorser.</p> <p>(5) A surety’s liability to a creditor is not affected by the discharge in bankruptcy of the principal. Such discharge is the act of the law, and does not release one liable for the same debt, either as partner, endorser, or otherwise. And a creditor's assent to the discharge is that it be granted under the bankrupt law.</p> <p>{Bank v. Lineberger, S3 N. C., 454; Hoffman v. Moore, 82 N. C., 313; Ingersoll v. Long, 4 Dev. & Bat., 293; Oldham v. Bank, 85 N. C., 240, cited and approved).</p>

<p>Contract — Splitting up Account — Jurisdiction.</p> <p>1. Where a single contract is made for furnishing certain specified articles, at prices fixed for each, the plaintiff can not be allowed to “split up” the account and recover upon each item separately.</p> <p>2. If there are several payments due under one and the same contract at the ' time a suit is brought to recover one installment, a judgment for the amount of the latter will be held to be in satisfaction of the whole, as all the . 'ms, being due, conld have been included in the action. But it is coir. : •'nt for the plaintiff to sue and recover upon each as it falls due, and in the court having jurisdiclion of the same.</p> <p>3. Where the plaintiff “split up” his account, due under a single contract cognizable in the superior court, and brought actions before a justice of the peace, it was held upon appeal that the superior court did not acquire jurisdiction of the whole amount by consolidating the cases into one action. The appellate jurisdiction is derived solely from the rightful one assumed by the court below.</p> <p>(Caldwell v. Beatty, 69 N. C., 365; Boyle v. Bobbins, 71 jST. C., 130; Magruder v. Randolph, 77 N. C;, 79, cited, commented on and approved).</p>

<p>Settlement of Account — Evidence—Contract.</p> <p>3. A settlement of mutual running accounts, by payment or giving a note for balance due, is presumed to include all pre-existing demands of either party; but this presumption may be rebutted by proof that a claim has-been omitted.</p> <p>2. The instructions asked in this case are not applicable to the nature of the counter-claim set up by the defendant, which is founded upon an agreement of the plaintiff, made at the time of the settlement, to allow credit, for wheat delivered by the defendant in excess of the quantity represented on the plaintiff's book of accounts.</p>

Civil Actios tried at Spring Term, 1879, of Martis Superior Court, before Eure, J. The plaintiff and sundry other creditors respectively obtained judgments before a justice of the peace, in the county of Martin, against T. J. Harrell.

Civil Aotiox upon a promissory note, tried at Fall Term, 3 883, of Robesox Superior Court, before JIcKojj, J. The complaint states that defendant executed his promissory note on the 29th of May, 1882, and promised to pay to the plaintiffs or order the sum of $273.33, and that no part thereof has been paid.

Civiii ActioN tried at December Special Term, 1883, of Moose Superior Court, before MacRae, J. This action was commenced in the court of a justice of the peace against Mclver & Dalrymple, partners in trade, doing business in the town of 'Jonesboro, to recover the value of a bale of cotton.

PETITION by plaintiff to rehear, beard at February Term,, 1884, of Ti-ie Supreme Court. The decision of the case, adverse to the plaintiff petitioner, and which she now seeks to have reversed, is reported in 86 N.. a, 443.

<p>Witness, deposition of — Estoppel—Former Action — Parol Proof.</p> <p>1. The deposition of a witness laten in a former action is not admissible in a subsequent one, unless lire parties and mailers in issue'in (he latter are the same as in the former'.</p> <p>2. To render the evidence competent in such case upon the ground of privity between the parties, it must appear that the party offering it lias acquired an interest in the subject-matter from a party to the former action subsequent to its institution. Privity, in the sense here used, is a privity to the former action.</p> <p>8. And it must also be shown there was an action pending and properly constituted, in which the deposition was taken, involving the point in question in the action in which it is offered.</p> <p>4. Where a record is set up as an estoppel to a subsequent action, the party must aver and prove the identity of the precise point on which the first action was decided; and parol proof is admissible in aid of the record of the first trial, if it fails to disclose such point. Here, there was no record and, therefore, no foundation for the offered proof.</p> <p>(.McMorine v. Story, 4 Dev. & Bat., 189; Harper v. Burrow, 6 Ired., 30; Long v. Baugas, 2 Ired., 290; Yates v. Yates, 81 N. C., 387, cited and approved).</p>

.Civil, ACTION tried at Fall Term, 1883, of Chowan Superior Court, before Avery, J. . ' This is an action 'in nature of quo ■warranto, brought by the people of the state upon the relation of George A. Sparrow against John H. Blount, to try title to the office of solicitor of the first judicial district.

<p>Civil AcxroN tried at Fall Term, 1883, of Nash Superior Court, before Philips, J.</p> <p>Upon excluding the evidence offered by the plaintiff (set out' in the opinion here), the plaintiff exempted to the ruling of the' court below and suffered a nonsuit and appealed.</p>

<p>Orvih ACTION tried at January Term, 1883, of Richmond Superior Court, before Graves, J.</p> <p>The action is to enforce a contract executed by the defendant to the plaintiff's intestate in these words':</p> <p>“For'and in consideration of paying and discharging the balance due to Alexander Malloy, of whom I was guardian, 1 do hereby promise and agree to pay to said Alexander Malloy annually one-third of the net profits to be made at the factory of Malloy and Morgan during my life. •</p> <p>8th March, 1878. C. Matjsoy, (Seal).”</p> <p>The defendant resists the action, and alleges that the contract was obtained by the exercise of intimidation and undue influence, practiced by the defendant and his attorneys at a time when he was in distress, and without the advice and counsel of friends.</p> <p>Four issues evolved from the pleadings were submitted to the jury in form, and with responses to each, as follows:</p> <p>1. Was the contract sued on obtained by surprise or undue-influence? Answer — Yes.</p> <p>2. Did the intestate’s attorney represent to the defendant that it would be difficult for him to exonerate himself from liability to his ward on account of the loss of his papers, destroyed by Sherman’s army, and that it would ruin him if he did not sign the contract? And if so, was the defendant induced by this representation to execute the contract? Answer — Yes.</p> <p>3. If such representations were made, were they false? Answer — -Yes.</p> <p>4. Did the parties agree when the contract was made that the defendant should not be held liable for any profits until the debts, liabilities and expenses of the factory had been paid; if so, was the provision omitted by mistake or inadvertence? Answer— Yes, by mistake.</p> <p>To sustain the imputations of unfairness and undue influence used in procuring the execution of the contract and the representations attending the transaction, the defendant, examined on his own behalf, was permitted, after objection made and overruled and a cautionary direction from the court not to speak of any transaction or conversation had with the deceased, to testify and say:</p> <p>“T went 4o the house of the intestate on Monday morning, the clay on which the contract was signed, and found there two attorneys of the intestate. I refused to sign one of the papers drawn and presented to me. My remark was addressed to the crowd. The first deed was read to me by one of the attorneys, who-said that $38,000 was'a large amount, and that it would ruin me, and I had better settle. 1 replied that I had been advised that I was not liable for the casualties of war. The same attorney replied, that is true, but it has been a long time since, and it would be hard to show.”</p> <p>“The attorney then handed me this paper (the contract sued on). I declined to sign it because the factory was in debt, and the attorney remarked, ‘ I can obviate that difficulty by inserting the word ‘net’ — and he added, 1there could be no net profits until the debts were paid.’ I knew .nothing of this matter before — was excited and disturbed. Morgan came in before the last paper was signed. The deed conveyed all the land I owned, except a life estate was reserved to'myself. I was induced to sign the contract by representations that there could be no net profits' until the debts were discharged. I was guardian to Alexander'Malloy (the intestate), and became such about 1848. My guardian .papers were destroyed — notes and accounts were good.”</p> <p>We reproduce so much of the testimony delivered by the defendant-as shows the general nature and bearing of the conversation which took place in the presence of the intestate and was carried "on between his -counsel and the witness, and which resulted in the giving of the deed and the contract, in order that its competency may be determined.</p> <p>After the rendition of the verdict, the court being of opinion that the testimony of the defendant came within the inhibiting proviso of section 348 C. V. P., and ought not .to have been heard,'for this and other specified erroneous rulings during the tria!,'Set a-Th'-the verdict and awarded'a new trial, and therefrom til-''d-'i’endant appéa's. Section-2Í)!).</p>

CONTROVERSY submitted without action under The Code, §567, at Spring Term, 1883, of Anson Superior Court, before Mac Rae, J. It appears that B. F. Medley in bis life-time, with his family, went from this state and became a citizen of the state of Arkansas, and died there in December, 1881, leaving surviving him his widow, the plaintiff, and his four sons, the latter being under the age of fifteen years.

<p>Motion for leave to issue execution — Judgment—Executors ánd Administrators.</p> <p>1. Motion for leave to issue execution to revive a dormant judgment may be granted tlie plaintiff, although he had brought another action for the same debt and recovered judgment therein.</p> <p>2. Where the plaintiff recovered a personal judgment against an administrator, and subsequently sued his administration bond alleging a breach in the non-payment of said judgment out of assets which afterwards came into his hands, and recovered judgment thereon; Held that the first judgment was not merged in the last, but both are separate securities for the same debt, and satisfaction of one discharges both.</p> <p>{Carter v. Coleman, 12 Ired., 274, cited and approved).</p>

Civil ActioN tried at Spring Term, 1883, of Edgecombe 'Superior Court, before Gilmer, J. Henry S. Lloyd died in the year 1860, leaving a will and ■therein appointing as his executors William Norfleet and William Lloyd, both of whom accepted the trust and proceeded in the discharge of the duties imposed.

<p> Executors and Administrators. </p> <p>(See syllabus iu preceding ease).</p>

Civil ActioN tried at Fall Term, 1883, of NORTHAMPTON Superior Court, before Shepherd, J. The suit was brought on the bond of an administrator to recover a sum alleged to be due the plaintiff University as an undistributed surplus unclaimed by creditors, next of kin, or otherwise.

Civil ActioN tried at Spring Term, 1883, of Currituck Superior Court, before Shepherd, J. The action was brought to recover an amount alleged to be due upon an open account. The court held that the statute of limitations did not bar the claim, and gave judgment against the defendant, from which he appealed.

<p>Appeal from an order made at Chambers on the 22d of January, 1884, by Philips, J.</p> <p>The defendants appealed.</p>

Special PROCEEDING to sell land for assets, commenced before the clerk and heard on appeal at Fall Term, 1883, of PasquotaNK Superior Court, before Avery, J. The defendants appealed from the judgment of the court below.

<p>Executors and Administrators — Penalty—Pleading.</p> <p>1. In a suit for the penalty denounced in The Code, §1522, in reference to administering upon estates, a complaint which fails to state that the defendant “entered upon the administration of the estate without obtaining letters.” is demurrable.</p> <p>2. The more act of taking possession of the decedent’s property and converting it to the defendant’s use, may constitute him an executor de son lort, and subject him to the demands of creditors of the estate, hut does not render him liable to the penalty.</p>

Civil ActioN tried at Spring Terra, 1883, of Buncombe Superior Court, before Avery, J. This action was originally brought against Minerva Patton, to recover upon a bond for three hundred and fifty-eight dollars, executed by her to the plaintiff on the 26th of Octobe, 1872. On the trial, the court gave judgment against the defendant administrator, from which he appealed.

Civil ACTION for account and settlement tried at Spring Term, 1880, of NORTHAMPTON Superior Court, before Gudger, J. This case is reported in 87 N. C., 34, and under a reference had in obedience to the decision there rendered,, the referee (Boone) submitted his report to this court, and the cause is now heard upon exceptions thereto.

<p>Civil Action tried at Spring Term, 1882, of Davie Superior Court, before Avery, J.</p> <p>The plaintiff appealed.</p>

<p>CrviL AotioN heard upon exceptions to a referee’s report made to The Supreme Court, and heard at February Term, 1884.</p>

Civil ActioN heard upon exceptions to a referee’s report at January Special Term, 1882, of NORTHAMPTON Superior Court, before Graves, J. ‘ The facts are stated in the opinion. The defendants appealed from the ruling and judgment of the court below.

<p>Guardian and Ward — Partition, sale of land for — -Setting aside order of sede — -Wills.</p> <p>1. The act requiring service of summons and copy of complaint upon infant defendants before appointment of guardian ad litem, went into operation after this proceeding was begun. The Code, $387, curing defects where there was no such service, adverted to.</p> <p>'2. This ease is governed hy the former law (C. C. P., $59), and the failure of the guardian to answer the petition to sell the land for partition workej no injury to the parties, it appearing that a sale was necessary to then interest.</p> <p>5. In such case, the court will not set aside the sale for want of precision in the record, and in the absence of fraud.</p> <p>4. The testator expressed a wish that farm profits bo applied to debts and then to education of children, but they turned out to he insufficient for this purpose; and a sale of the land was upheld, as tiie interest on the mopey would more directly conduce thereto, and as there was nothing in the will to prohibit conversion.</p> <p>■5. This case is remanded to the end that there may he an enquiry as to the payment of the purchase money and the manner of its disposition, and that other parties defendant may be brought in if ncees-ary.</p>

Ciyil ACTION on a guardian bond tried at Fall Term, 1881, of Iredell Superior Court, before Seymour, J. This case is fully reported in 85' N. C., 500, where the judgment of the court below was affirmed, except as fo the allowance of commissions to the defendant J. M. Turner, upon the two items therein specified, and as to these the account was corrected, and submitted at the last term of this court, when an order was made setting aside the last report and referring the…

<p> Wills, defeasible estate, when it becomes absolute. </p> <p>1. Where an estate is defeasible and no time fixed in the will for it to become absolute, the time of the devisor’s death will be adopted, in preference to that of the devisee, unless there be words to forbid it.</p> <p>2. But, if there be an intermediate period between the death of the devisor and devisee to which the contingency can have reference, then the intermediate period must be adopted.</p> <p>3. Therefore, where the will provides that John, upon his arriving at the age of twenty-five years, “ can take possession of the estate and do with it as he pleases,” but if he die without issue, then to be limited over, and he attains the said age and dies without issue ; Held, that the intermediate period to be adopted is his attaining the age of twenty-five years. After that event, the estate in John became absolute, and the contingency of dying without issue not happening before that time, the limitation over cannot take effect.</p> <p>{Hilliard v. Kearney, Bush. Eq., 221; Davis v. Parker, 69 N. C., 271; Webb v. Weeks, 3 Jones, 279 ; Biddle v. Hoyt, 1 Jpnes’ Eq., 159 ; Vass v. Freeman, 3 Jones’ Eq., 221; Burton v. Conigland, 82 N. C., 99 ; Murchison v. Whitted, 87 S'. C., 465, cited and approved).</p> <p>8. The plaintiff’s intestate made no debts after arriving at the nge of twenty-five, except doctor’s bills.</p> <p>The plaintiff contends that his intestate John Johnson became entitled to an absolute estate under the will, having reached the ■age of twenty-five years before his decease; and the defendants contend that upon the death of John without issue, the property ■devised and bequeathed to him became vested cither wholly in the defendant Victoria, or that one-half thereof became vested in her as executory devisee and legatee under the will, and the •other half vested in the defendants, as to the real estate, as heirs-at-law of Frederick Johnson, and as to the personal estate, as next of kin (in conjunction with Harriet E. Johnson, the mother of Frederick and the defendants) of said Frederick.</p> <p>It is further agreed that the said John died without being possessed or seized of any property other than that mentioned in the will and the petition, and that the railroad stock is sufficient to pay the debts described as for necessaries, but not sufficient to pay both that and the mortgage debt aforesaid.</p> <p>If the court should be of opinion with plaintiff, a decree of «ale is to be entered; otherwise, judgment to be given dismissing petition with costs.</p> <p>The court being of opinion with plaintiff, adjudged that he be ■appointed commissioner to sell the land for assets, and the defendants appealed.</p>

<p>Will — Latent Ambiguity — Evidence of testator’s intention.</p> <p>"Where a testator devised his “ home plantation,” describing it in such manner as that upon the face of the will the court can see what land was meant to be included within its boundaries, it was held that evidence as to what the testator, at the time of making the will, “ called and considered his home plantation,” was properly excluded. Evidence dehors is only received to explain an instrument in case of a latent ambiguity, and no such ambiguity appears here.</p> <p>>(Barnes v. Simms, 5 Ircd. Eq., 392; Stowe v. Davis, ]0 Ired., 431; Institute v. Norwood, Bush., Eq., 05; Jones v. Robinson, 78 N. C., 390, cited and approved).</p>

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

Wills — Power of executor to sell land. Special Proceeding} commenced before the clerk and heard at Spring Term, 1882, of Wilson Superior Court, before Gil-mer, J. This was a proceeding for an order to sell certain mill property for partition. The plaintiff alleged that the sale of the same by executors under the power supposed to be conferred upon them by the will of the testator, was contrary to law.

Civil Actiox for construction of will heard at Spring Terra, 1882, of Robeson Superior Court, before Shipp, J, This action was brought by the plaintiff executor of John W. Powell, deceased, to obtain the advice of the court in reference to his duty in administering the estate' of his testator.

CONTROVERSY submitted without action in a'ease pending in Halifax Superior Court, and heard at Chambers on February 11th, 1884, before Avery, J. The defendant appealed from the judgment of the court below.

Special PROCEEDING for sale of land for partition, commenced before the clerk, and heard at Fall Term, 1883, of OraNGE Superior CoutT, before MaoRae, J. The plaintiffs tdlege that they and the defendants are tho heirs-at-law of Eliza Carden, who died intestate in the year 1882, and as such are entitled as tenants in common of a tract of land descended from the intestate, situate in Orange county on the waters of Bick creek, adjoining the lands of John Car-den, John McCrack…

PETITION to sell land for partition commenced before the clerk and heard on appeal at Spring Term, 1884, of BuNCOmbe Superior Court, before Graves, J. The clerk refused the prayer of the petitioners upon the ground that it could not be ascertained who would be entitled to the estate limited over under the will of James M. Smith until the expiration of the estate of the life tenant, Elizabeth A. Smith. This ruling was affirmed by the judge,and the petitioners appealed.

Civil ActioN tried at January Term, 1884, of Wake Superior Court, before Shepherd, J. The plaintiff executors, Walter Clark and R. H. Battle,, brought this action to obtain a construction of the will of their testatrix, Eleanor H. Swain. The complaint states: 1. That in the month' of February, 1883, the testatrix died in. the county of Wake, leaving a last will and testament of which the following is a copy: “Raleigh, N. C., January 8th, 1883. “ I, Eleanor IT.

Civil Actiok for construction of will, heard at Spring Term, 1883, of Rutherford Superior Court, before Shipp, J. The plaintiff executors of the will of Sarah Hamilton, deceased, ask for advice and directions as to how to carry out the provisions of the will of their testatrix, the material clauses of which are set out in the opinion here. It appearing that the estate had been reduced to personalty, His Honor adjudged: 1.

<p>MOTION by plaintiff to dismiss an appeal heard at February Term, 1884, of The Supreme Court.</p>

Civil Action tried at Spring Term, 1878, of DavidsoN Superior Court, before Buxton, J. There was a verdict and judgment in favor of defendant, and the plaintiff appealed. Motion by defendant to dismiss the appeal.

<p>Appeal from a judgment rendered at Fall Term, 1883, of GraNVILLE Superior Court, by MacRae, J.</p> <p>The plaintiff appealed.</p>

INDICTMENT for burning a mill, tried at Fall Term, 1883, of MecklenbuRG Superior Court, before Gilmer, J. The defendant was indicted for the said offence and convicted in the inferior court, and appealed from its judgment to the superior court, where the judgment below.was affirmed, and the-defendant then appealed to this court. • -

INDICTMENT for fornication and adultery, tried at Fall Term, 1883, of Watauga Superior Court, before Graves,- J. The defendants Edith Saunders and Columbus Anderson were indicted lor fornication and adultery, and the defendant Edith was alone on trial. There was a verdict of guilty, and the de-fondant appealed. Motion by the state to dismiss the appeal upon the ground that the record does not show that judgment was pronounced.

INDICTMENT for murder, tried at Fall Term;, 1883, of For-syth Superior Court, before Shipp, J. This case was tried a few days after The Code went into operation — the superior court of Forsyth county being held on the 7th Monday after the 4th Monday in September, 1883. There was a verdict of guilty, and the prisoners appealed from the judgment pronounced, and the presiding judge made up the case on appeal.

INDICTMENT agaiut the defendant and others for fornication and adultery, tried at Fall Term, 1883, of Richmond Superior Court, before MoKoy, J. An appeal was taken from the judgment pronounced upon a verdict of guilty, and upon call of the case here, the defendant’s counsel asked for leave to withdraw the appeal, the state assenting thereto.

INDICTMENT for murder removed from Anson and tried at Fall Term, 1883, of Montgomery Superior Court, before Gilmer, J. There was much evidence adduced in behalf of the prosecution and the prisoner, but the facts are substantially as follows: The deceased William B. Carpenter came to his death on the night of the 6th of December, 1881, caused by a wound on the left side of his head, producing a very bad fracture of the skull.

■ INDICTMENT for murder tried at Fall Term, 1883, of Pam-i.ico Hupcrior Court, before Avery, J. The prisoner is charged with (he killing of one Augustus Rhor, on the 28th of May, 1883, in the .city of Newbern, in the ■county of Craven, and the trial of the indictment was removed, upon an affidavit of the state solicitor, to (he county of Pam-lico. Verdict of guilty; judgment; appeal by prisoner.

INDICTMENT for murder tried at Spring Term, 1884, of Hen-deesoN Superior Court, before Graves, J. This case was removed from Buncombe, and the whole record was made a part of the statement of the case on appeal. When the solicitor for the state announced his readiness for trial, the prisoner moved for his discharge upon the ground that he had heretofore been in jeopardy upon the same charge which he was then called upon to answer. Motion overruled, and the prisoner excepted.

<p>Oath, administration of to witness — Homicide—Judge’s Charge-</p> <p>1. An oath administered substantially in the form prescribed by statute is sufficient, and hence it was held that the omission of a witness to repeat the-words “so help me God,” is not assignable for error. The words are no part of the oath.</p> <p>• 2. A witness for the state was required to swear that his evidence “.against” the-prisoner at the bar shall ho the truth, &c.; Held, that the oath exacts from, (he witness, under penalties of perjury, all he knows material to the issue,, and comprehends as well what mitigates as what tends to estalish guilt-But the court recommend that the form prescribed by law be followed.</p> <p>3. The rule laid down in Willis’ case, 63 N. C., 26, that the burden of proving. matter of mitigation rests upon the prisoner, &c., and affirmed hv repeated decisions of the court, is the settled law of this state.</p> <p>4. The court charged the jury in this case that “ if deceased attacked with the-rock and knife, the prisoner, not having provoked the fight nor willing to-engage in it, might use the necessary means of self-defence, but the jury and not the prisoner must judge of the necessity. And if a deadly-weapon was used, and the attack indicated a purpose to endanger the ¡u-is-oner’s life or inflict great bodily harm, he was not compelled to flee, but! might defend his person and pursue his adversary, to disarm him, but fon-no other purpose Held, no error.</p> <p>(Slate v. Paylor, 89 N. C., 593; Stale v. Willis, 62 3ST. G., 26; Stale v. Elliek, 2: Winst., 56; Slate v. Haywood, Phil., 376; State v. Smith, 77 N. C., 48S State v. Brittain, 89 N. C., 481; State v. Harris, 1 Jones, 190), approved.</p>

INDICTMENT for murder tried at Fall Term, 1883, of Rutherford Superior Court, before Gilmer, J. The prisoner appealed from the ruling of the court below.

INDICTMENT for murder tried at Fall Term, 1883, of Meck-lenburg Superior Court, before Gilmer, J. The prisoner is charged with killing one Joseph G. Sittoiu Numerous exceptions were taken on the trial, but it is not deemed necessary to an understanding of the opinion of this court to set out more than is applicable to the point decided.

<p>Assault — Judge’s Charge — Arrest by officer — Towns and Cities.</p> <p>A police officer, in arresting one for violating a city ordinance, was indicie I for an assault. The prosecutor alleged (lint the force used was exec^-ivo, and the judge charged the jury if Mali was the case the d"foi't cit ww guilty, but billed to call their attention to the good faith in ivljich the officer claims to have acted ; Held, error. The amount of force necessary to make the arrest is left to the judgment of the officer when acting within the scope of his general powers and actuated by no ill-will or malice.</p> <p>(Neal v. Joyner, 89 N. 0., 287; Slate v. Stalcup, 2 Ired., 50; Slate v. Pendergrass, 2 Dev. & Bat., 305; Furr v. Moss, 7 Jones, 525, cited and approved).</p>

INDICTMENT for false pretence tried at Spring Term, 1883, of Cumberland Superior Court, before Shipp, J. The indictment is in t'he usual form charging the offence as a misdemeanor.

INDICTMENT for larceny tried at Fall Term, 1883, of Beaufort Superior Court, before Avery, J. The defendant is charged with stealing two barrels of pork, the property of A. N. Vail & Son. The indictment was found by the grand jury in Washington county and removed to Beaufort county for trial.

INDICTMENT for carrying concealed weapon, tried at Fail Term, 1883, of Mitchell Superior Court, before Graves, J. The indictment was found at spring term, 1883, as fellows: “ The jurors for the state upon their oaths present, ¡hat Jesse Howell, late of the county of Mitchell, on the first clay of March, 1883, with force and arms at and in the county aforesaid, unlawfully and wilfully, and not on his own premises, did carry concealed about his person a certain pistol,…

INDICTMENT for bigamy tried at Fall Term, 1883, of SwaIN ¡Superior Court, before Gudger, J. The defendant was indicted at spring term, 1882, and on the trial the jury found a special verdict to the effect that the offence was committed four years prior to the commencement of this prosecution, and submitted the question to the court whether the •same was barred by the statute of limitations.

INDICTMENT for burning an uninhabited house tried at January Term, 1884, of CUMBERLAND Superior Court, before dlaePute, J. The indictment was found at fall tern:, 1883, and is in substance as follows: The jurors, &c., present that the defendant, &c., did unlawfully, wilfully, maliciously and feloniously set-lire to and burn a certain uninhabited house, the property of J. C. Blocker, with intent to destroy said house and to injure said Blocker, contrary, &c. The jury-…

INDICTMENT for false pretence tried at Fall Term, 2883, of Bueke Superior Court, before Graves, J. After a verdict of guilty, the defendant moved in arrest of judgment, upon the ground that the bill of indictment found against him had been found by the grand jury at a term of the, court when J. A. Lackey (the prosecutor) was the’ foreman of' the grand jury, and signed his name on tlje bill as such, to the finding of the indictment as a true bill — the said Lackey having…

INDICTMENT for misdemeanor tried at Fall Term, 1883, of Nash Superior Court, before Philips, J. The defendant is charged with a violation of the act of 1876- 77, ch. 283, §6 (Ttie Code, §1759), in removing crops.

<p>Indictment — Motion in arrest and to quash — Endorsement on bill no part of record.</p> <p>L Judgment can be arrested only for matter appearing, or for some matter which ought to, but does not appear in the record.</p> <p>2. Neither a motion in arrest nor a motion to quash will lie upon the ground that the endorsement on a bill that the witnesses were sworn and sent to the grand jury is not signed by the clerk, for it is no part of the record.</p> <p>3. There is a presumption in favor of the legality of the finding of the jury.</p> <p>4. But where the accused establishes the fact that the bill was found without evidence or upon illegal evidence, it may be quashed or the matter pleaded in abatement.</p> <p>Stale v. Thompson, 83 N. C., 59-5; State v.'Melntlre, 2 Car. Law Rep., 287 ;. State v. Roberts, 2 Dev. & Bat., 540 ; Slate v. Ilanoarcl, Winst,, 223 ; Stale v. Guilford, 4 Jones, 83, cited and approved).</p>

INDICTMENT for an attempt to commit burglary, tried at January Term, 1884, of Robeson Superior Court, before MacJRae, J. The defendant was tried upon a bill of indictment which is substantially as follows: The jurors, &c., present that the defendant, &c., about the hour of ten in the night of the same day, with force and arms, &c., did feloniously attempt to break and enter the dwelling-house of Edward Surles, with intent the goods and chattels, &c., feloniously to steal,…

INDICTMENT for burning a barn tried at Spring Term, 1884, of Mecklenbueg Superior Court, before MaoRae, J. This was an appeal from the inferior court of Mecklenburg; county, where the defendant was convicted.

INDICTMENT for burning a warehouse tried at Spring Term, 1884, of MeciclENBURG Superior Court, before MacRa.e, J. This prosecution was commenced in the inferior court of Meck-lenburg county, and the defendant is charged with burning a warehouse, the property of Springs & Burwell, in violation of The Code, §985, sub-div. 6. .

<p>Burglary — Store-house—Indictment.</p> <p>1. A store-house is a dwelling-house in which burglary may be-committed’,. where it appears that a clerk or servant of the owner habitually slept in a bed-room therein, even though for the jiurpose of protecting the property. See next case.</p> <p>2. The indictment in such case which lays the property in the owner of file-store “ then occupied ” by the clerk, is in accordance with the suggestion, in State v. Outlaw, 72 N. 0., 598</p> <p>(Stale v. Outlaw, 72 TT. C., 598 ; State v. Jenkins, 5 Jones, 430; State v. Pott». 75 N. C., 129, cited, distinguished and approved).</p>

INDICTMENT fof burglary tried at Spring Term, 1884, of MeckleNburg Superior Court, before MacRae, J. It is not necessary to an understanding of the opinion to state-the facts of this case, as they are very similar to those of the preceding case of State v.' Williams.

<p>IkdictmpNT for cruelty to animals tried at Spring Term, 1883, of Iredell Superior Court, before Gi'aves, J.</p> <p>The defendant was indicted at spring term, 1883, for a violation of the act of assembly in reference to cruelty to animals. The indictment is substantially as follows: The jurors &c., present that the defendant, with force and arms, &c., “did unlawfully and wilfully overdrive, torture, torment, cruelly beat and needlessly mutilate a certain cow, the property of, &c., by beating said cow and twisting off her tail,” contrary, &c. The jury found the defendant guilty, and on his motion the judgment was arrested and the state appealed.</p> <p>Chapter 368 of the acts of 1881, referred to in the opinion of tin's court, provides that one who violates the same “shall for every offence be guilty of a misdemeanor.” And by chapter 34 of the acts of the same session, it is provided (hat any person who shall “maliciously” kill, cruelly beat, &c., “shall be guilty of a misdemeanor, punishable by fine of not more than fifty dollars, or imprisonment not more than thirty days.”</p>

INDICTMENT for larceny tried at Fall Terra, 1883, of Ashe Superior Court, before Graves, J. Testimony was offered by the defendant tending to show an alibi, and one of the witnesses examined for this purpose was the defendant’s son, about twelve years of age, who testified that he was at home on the night of the alleged larceny, and that his father (the defendant) came home that night about one o’clock and slept with him in the same bed until the next morning.

<p>Injury to Stock — Statute, repeal of— Comments of Counsel.</p> <p>INDICTMENT for a misdemeanor, tried at Spring Term, 1883, of AnsoN Superior Court, before MacRae, J.</p> <p>Ycrdict of guilty; judgment; appeal by the defendant.</p>

<p>Liquor Selling — Evidence—Introduction of Original Records— Criminal Intent.</p> <p>1. A license to retail liquor can issue only upon the application of the party to the board of county commissioners for an order directing the sheriff to grant the same. Permission given by the sheriff to retail without such . order previously made, is in violation of the law and does not protect the seller from prosecution.</p> <p>2. An order granting license may be revoked at the same session of the hoard.</p> <p>Evidence of the understanding of a witness as to the meaning and import of orders and decrees is not admissible. They are ascertained by the terms in which the orders are drawn.</p> <p>-I. The contents of a public record may be proved in any court by the original record itself. The ride allowing a properly certified copy of such record to be admitted in evidence is grounded on the inconvenience of obtaining the original.</p> <p>ñ. The criminal intent is involved in the intent (o do the act which the law pronounces criminal.</p> <p>(Scott v. Oreen, 89 N. C., 278; State v. Moore, 1 Jones, 270; State v. King, 80 N. C., 003: Cheatham v. Hawkins, SO N. C., 161; Ward v. Saunders, 0 Ired., 882 ; State v. Collins, 3 T)ev., 117; Stale v. Reid, 1 Dev. & Rat., 377 ; cited and approved).</p>

<p>Sunday Latos, violation of — Indictment, proof to sustain — Liquor Selling.</p> <p>An indictment charging the commission of an offence on Sunday (here soiling liquor), when the doing the act on that day is the gist of the offence, though it names the day of the month which does not fall on Sunday, is sufficient, and may be supported by proof of its commission on a Sunday.</p> <p>i State v. Wool, 80 N. C., 70S; State v. Drake, 04 N. C., 589, cited and approved).</p>

INDICTMENT for cruelty to animals, tried at January Term, 1884, of Wake Superior Court, before Shepherd, J. The defence is former conviction, the plea being set out in the record.

INDICTMENT for an assault tried at Fall Term, 1S83, of CUMBERLAND Superior Court, before McKoy, J. The defendant was charged with an assault with a deadly weapon upon one Benjamin Walker, and was found guilty by tlie jury.