Volume 92 — North Carolina Reports

Cívil ACTION tried at Spring Term, 1883, of Martin Superior Court, before Shepherd, J. The appellant, a corporation formed under an act of the General Assembly for the purpose of cutting and forwarding to market timber growing upon lands in certain specified counties, and with authority to construct and operate a railroad through said lands between the towns of Washington and Jamesville on the Roanoke river, in furtherance of the objects of its organization had employed…

<p>Appeal — Certiorari—Duties of Counsel.</p> <p>1. Where the appellant’s counsel told him that he (the counsel) would do everything necessary towards perfecting his appeal, but the counsel failed to lile a proper appeal bond ; Held, no ground for a certiorari.</p> <p>3.If an appellant fails to perfect his appeal, either by his own negligence, or that of his agent, he loses it absolutely.</p> <p>3. In this class of cases, the appellant is only entitled to the writ of certiorari as a substitute for an appeal, where he has lost his appeal by no act or neglect of his own, or of his agent, but by the error or neglect of the Court or its officers, or by the contrivance of the appellee or his agent, or by their acts or declarations, reasonably calculated to mislead, or where by some insurmountable obstacle, he is prevented from perfecting his appeal.</p> <p>4. It is immaterial that it was the appellant’s counsel who neglected to file a proper appeal bond, as it was not his duty as counsel to do so.</p> <p>5. Tt seems, that any neglect by an attorney of his duties as counsel, will entitle a party to relief.</p>

This was a civil action tried before Gilmer, Judge, and a jury at Spring Term, 1883, of Edgecombe Superior Court.

<p>New Trial for Newly Discovered Evidence — Issues—Evidence— Fraud — Duress.</p> <p>1. The Supreme Court will grant a new trial for newly discovered evidence, where it is clear that substantial injustice has been done upon the trial below because of unavoidable failure to produce the evidence there, and where it is probable another trial will enable the right to prevail; but it will never bo granted where the newly discovered evidence is merely cumulative or corroborative of the testimony offered on the former trial.</p> <p>2. It is the duty of litigants to eliminate and tender such issues as they consider essential to present the merits of the action, before the trial begins; after the trial the objection that possible issues were not made comes too late.</p> <p>3. The contents of a letter written to the plaintiff by his agent and borne by the defendant, but of which he was ignorant, are not competent evidence on the trial though they may be material to the issue.</p> <p>4. The mere threat to employ force, or procuro the arrest of the obligor in a bond if he refused to accept Confederate money in payment unaccompanied by any attempt to put the threat into execution, is not fraudulent per so.</p> <p>5. The simple act of a guardian receiving Confederate money on debt due the estate of his wards in the year 1863, was not fraudulent, or the evidence of fraud as to-them.</p> <p>6. Duress was the only issue raised by the record in this action, and it was properly submitted to the jury.</p>

Issues joined in a special proceeding for partition before Clerk of Hertford Superior Court, and tried before Shep>hercl, J., at Spring Term, 1883. This was a special proceeding for the partition of land instituted before the Clerk of the Superior Court of Hertford county.

Civil. ACTION tried before McKoy, J., at Spring Term, 1882, Superior Court Beaufort county. Tlie plaintiff derived title to one moiety of a lot in the town of Washington, numbered 62, under a sale for taxes, and a deed thei’efor executed on March 10, 1870, by Jesse M. Pringle, tax-collector, to S. W. Stilley, and subsequent conveyances of said moiety to himself.

Appeal by plaintiff from an order made at August Term, 1884, of Wake Superior Court, by Gudger, Judge, refusing a trial by jury of ¿xceptions to the report of a referee. The facts are stated in the opinion.

Civil action, tried at Spring Term, 1884, of Superior Court for Cased BN county, before Gudger, J. The facts are stated in the opinion of the Court. Verdict and judgment for defendants, from which plaintiff appealed.

Civil action, tried at Fall Term, 1884, of the Superior Court of Chowan county, before Graves, J. The court intimating an opinion that the plaintiff could not maintain his action, he submitted to a nonsuit and appealed. In this court there was a motion to dismiss the appeal.

Superior Court of Pasquotank county, by Graves, J. The facts are stated in the opinion of the court. From the judgment of the court refusing the motion, the ■defendants appealed.

Civil ACTION, tried before Avery, Judge, and a jury at Spring Term, 1884, of Norti-iamptoN Superior Court. This was a creditor’s bill, commenced by J. I). Edwards as a creditor of J. M. Edwards, deceased, and against W. J. Edwards as administrator of J. M. Edwards, before James I). Boone, clerk of the Superior Court of Northampton county.

MOTION to continue a restraining order until the hearing,, made before Shepherd, Judge, at Spring Term, 1884, of Pitt Superior Court. The plaintiff alleged in his complaint, that on January 17th,, 1883, he borrowed of the defendants the sum of $2,000, and executed to them a bond signed by himself and his wife, payable-on the 1st day of December, 1883, with interest at six per cent.

<p>Appeal— Certiorari.</p> <p>PETITION for a certiorari heard at October Term, 1884, of the Supreme Court.</p> <p>The petitioner alleged in substance that the judgment was rendered against him on the 13th day of April, 1883, and on the same day he caused a notice of appeal to be filed in the record and filed his appeal bond and statement of the case on appeal. That his counsel instructed the clerk of the Superior Court to send a transcript of the record to the October Term, 1883, of the Supreme Court, which the petitioner alleges, that the clerk did, but the transcript was never received by the clerk of the Supreme Court.</p> <p>That, in November, 1883, petitioner’s counsel first ascertained that the transcript had not been received by the clerk of the-Supreme Court, and he at once requested the clerk of the Superior Court to make out aud forward another transcript, which ■ the petitioner says said clerk alleges he did.</p> <p>That, early in December, 1883, one of his counsel, being in Raleigh, ascertained that the second transcript had never been received by the clerk of the Supreme Court, and being obliged to leave the State on account of sickness in his family, he requested the clerk of the Supreme Court to write to another of petitioner’s, counsel informing him that the transcript had not been received, which the said clerk at once did.</p> <p>Petitioner’s counsel then requested the clerk of the Superior Court to make out and forward a third transcript, but the clerk informed him, that owing to sickness in his family, he could not-do so before the session of the Supreme Court would end.</p> <p>This petition was filed on April 21st, 1884, during the Spring-. Term, 1884, of the Supreme Court.</p>

OrviL ACTION for the possession of land, tried before Craves, and a jury at Fall Term, 1884, of Hyde Superior Court. The plaintiff s brought this action to recover possession of the land described in the transcript, and claim to derive title thereto from 'Mrs. C. E. Slade, who executed to them a deed therefor, ■dated the 20th day of April, 1870.

Civil action, tried on appeal from the judgment of a justice of the peace, at Fall Term, 1882, of CraveN Superior Court, before MeKoy, J., and a jury. There was a verdict and judgment for the plaintiff. Appeal by the defendant.

This was a civil action heard before Q-udger, Judge, at August Term, 1884, of Wake Superior Court, upon exceptions to the report of a referee. The facts appear in the opinion. His Honor overruled the exceptions of the defendants, and they appealed.

<p>Civil ACTION, tried at Fall Term, 1884, of the Superior ' Court of Moore county, before Shepherd, J.</p> <p>The facts are stated in the opinion of the Court.</p> <p>• From the judgment of the Court overruling the demurrer, the defendant appealed.</p>

<p>Dower — Jurisdietion of the Superior Cou/rt over — Executory Devises.</p> <p>1. Where there is a devise in fee simple, with an executory devise over, the wife’s right to dower attaches on the first estate, and is not defeated on its determination.</p> <p>2. A widow is entitled to dower in all lands of which her husband was seized during coverture, and which any child she might bear him could by possibility take by descent.</p> <p>3. The equitable j uvisdiction of the Superior Court over dower has not been taken away by giving cognizance of such matters to the clerk; but in order for the jurisdiction to attach as a general rule, some equitable element should appear in the application.</p>

This was a crviu ACTION, tried before Avery, Judge, and a jury, at March Special Terna, 1884, of Wake Superior Court.

<p>Excusable Neglect — Attorney—Notice—Judgment.</p> <p>1. A notice of a motion to set aside a judgment may be properly served on the attorney of record of the opposing party.</p> <p>3. An attorney of record cannot withdraw from an action without leave of Court, and his relation to the matter continues until the judgment is satisfied.</p> <p>8. This Court cannot review' the findings of fact of the court below on a motion under section 374 of The Code.</p> <p>4. Where a judge made a general order allowing parties time to file pleadings, but after leaving the court-house for the term, he made an order allowing plaintifls, who desired judgments for want of answers, to note on the summons docket that answers would be required during the term ; Sold, a judgment for want of answer, under such circumstances, will be set aside for excusable neglect.</p> <p>5. Neither parties nor counsel are required to take notice of orders made after the Judge has left the court-house for the term.</p> <p>6. Except in cases of consent, and where otherwise provided by statute, orders and judgments should be signed in open court,</p>

This was special proceeding for partition of land commenced before the clerk of Wayne Superior Court, and the defendants having pleaded they were sole seized of the lands in question, and issue having been joined thereon, said issue was transferred for trial by jury in-term to the Superior Court of said county; and the said issuer having come on for trial at January Term, 1885, of said court, before His Honor, Judge Gudger: It was admitted that one Josiah Ward was, in his…

<p>This was a civih action for the recovery of land tried before MacRae, J., and a jury, at Spring Term, 1884, of Ruther-eoed Superior Court.</p> <p>The facts are as follows:</p> <p>George Hay, Sr., owned the land in dispute aud was in possession from 1815, and conveyed the same to George Hay, Jr., his son, in 1838 in fee, and died in 1840. George Hay, Jr., was in possession until his death in 1842. George Hay, Sr., had three children, James, Sarah and George, Jr. James went away thirty years ago and never was heard of. Sarah married George Suttle and died, leaving two children, Sarah and Mary, who are the plaintiffs Sarah King and Mary Webb. George Hay, Jr., married Martha Wesson, who, before her marriage, had two illegitimate children — -there were no children after the marriage. The two illegitimate children were named Mary Wesson and George Wesson, alias Hay.</p> <p>George Hay, Jr., devised the land as follows:</p> <p>“ I give and bequeath to my beloved wife Martha the tract of land whereon I now live, for her to hold and enjoy during her natural life or widowhood, and at her death or marriage, to my beloved .son George Hay, alias Wesson.”</p> <p>Martha Hay remained a widow and continued in possession, until her death in 1858 or 1859.</p> <p>George Hay, alias Wesson, died in the lifetime of his mother in 1850, unmarried and without issue, leaving a sister, Mary' Wesson, the other illegitimate child of Martha.</p> <p>The defendants claim as follows:</p> <p>1st. By deed from George W. Suttle and wife Mary, who was-the illegitimate daughter of Mai’tha Wesson, afterwards wife of George Hay, Jr., executed 25th March, 1861, to Benjamin Wash-burne, in fee simple.</p> <p>2nd. Deed from Mary Suttle (daughter of Sarah), now Mary Webb, plaintiff, to Mary Suttle, wife of George W. Suttle, 21st of March, 1860. Defendants contend that this deed conveyed an estate in fee simple.</p> <p>The presiding judge held that it conveyed only a life estate. Defendants excepted.</p> <p>It is admitted that Mary, the wife of George W. Suttle, died before this action was begun.</p> <p>The plaintiffs claim that George Wesson, alias Hay, having died during the life of his mother, Martha Hay, the life tenant, the inheritance descended to them as the only surviving heirs of George Hay, Sr., and George Hay, Jr., under the rules of descent, Revised Statutes, ch. 38, §6, which required actual seizin in the person from whom the estate descended.</p> <p>The defendants, who are the heirs of Benjamin Waslibume, claim that the freehold and inheritance having passed by the devise of George Hay, Jr., and vested for life in Martha Hay, with remainder in George Wesson, that they took the estate by purchase, and that the inheritance vested in George Wesson, and upon his death descended to Mary Suttle, his sister, and only heir-at-law, who, with her husband, Geoi’ge W. Suttle, had conveyed the same by deed to their ancestor, Benjamin Washburne, in fee.</p> <p>The presiding judge, being of opinion with the plaintiffs, instructed the jury that, upon the evidence the plaintiffs were •entitled to recover. Defendants excepted.</p> <p>Judgment for plaintiffs. Defendants appealed.</p>

This was an action of claim and delivery of a mule, tried before McocRae, J,and a jury, at July Special Term, 1884, of GkeeNE Superior Court. The plaintiff offered in evidence a mortgage executed by Ket-ter Vines and Frank Vines to King &■ Smith, recorded in March, 1881; a mortgage from same parties to J. H. Smith, plaintiff, executed and registered in January, 1882, and a mortgage from same parties to J. H. Smith dated January 8th, 1883, and registered February 22nd, 1883.

This was a civil action, for the possession of land, tried before Philips, J., at Spring Term, 1884, of CttmbehlaND Superior Court. This case was before the Supreme Court, at October Term, 1881 (see 85 N. C., 291), and a venire de novo was awarded.

Civil action, tried at Fall Term, 1884, of Superior Court for Ahson county, before Shepherd, J. The facts are sufficiently stated in the opinion of the Court. Verdict and judgment for plaintiff. Appeal by defendant.

Motion in a cause pending in Durham Superior Court, heard at Chambers, on September 18th, 1884, by Philips, Judge. His Honor refused the motion, and the plaintiff appealed. The facts appear fully in the opinion.

This was a motion in the cause heard before Philips, J., at Spring Term, 1884, of ANSON Superior Court. The facts are fully set out in.the opinion. The motion was overruled and the defendant Knotts appealed.

<p>Evidence — Code, Section 580.</p> <p>In an action to rescind a contract for fraud, which fraud consisted in representing a bond, dated prior to August 1, 186S, to be unpaid, the obligor in such bond is a competent witness to prove that it has been paid. The proviso in section 580 of The Code, making- any person incompetent to testify, who, at any time, has had an interest in such bond, only applies to actions founded on the bond.</p>

<p>Divorce and Alimony — Condonation.</p> <p>1. In applications for alimony, under Tlie Code, §1291, it is competent for the husband to controvert the allegations of the complaint by affidavit or answer, and the judge must find the facts, and set them forth in the record.</p> <p>2. Where the facts as found by the judge would, if found by the jury on the final hearing, warrant a divorce from bed and board, they per se constitute sufficient ground to award alimony pendente lite.</p> <p>3. Condonation is forgiveness upon condition, and the condition is, that the party-forgiven will abstain from like offences afterwards. If the condition is violated, the original offence is revived.</p> <p>4. Much less cruelty or indignity is sufficient to revive transactions occurring before condonation, than to support an original suit for divorce.</p> <p>5. In an application for alimony it need not be found as a fact that the plaintiff ivas a faithful, dutiful and obedient wife.</p>

<p>Excusable Neglect — lies Adjudicata.</p> <p>1. I-Iis Honor in tie court below refused to extend the lime to file an answer, and signed a judgment, but stated that if an answer was filed before 12 o’clock at night of the last day of the terra, he would strike out the judgment. An answer was filed before 12 o’clock but the judgment was not stricken out; Held, excusable neglect.</p> <p>Ü. Queere? Whether a defendant has until this time to file an answer ?</p> <p>3. The refusal of the judge to extend the time to file an answer is not res adjudicate/, in this motion to set aside such judgment for excusable neglect.</p>

<p>Costs — Undertaking on Appeal.</p> <p>1. The undertaking for costs, required on appeal, is to secure the costs of the appellee; therefore, the surety is not liable for the appellant’s costs, where the judgment is reversed.</p> <p>2. Each party may be required by the clerk to pay his costs when they are incurred. When this is not done, the clerk must, look ouly to the party incurring them, except when the appellee recovers costs, in which case the surety on the appeal bond is liable.</p>

<p>Evidence — Registration—Probata.</p> <p>1. The, provisions in the Acts of 3 868 -’69, eh. 64,'requiring the eertifteate of probate by the Probate Juago of a county, other than the county of registration,, to be passed on by the Probate Judge of the latter county, is directory only. So, where a mortgage on land in Cleveland county was proven before the Probate Judge of Mecklenburg and registered in Cleveland without being' submitted to or passed upon by the Probate Judge of the latter county; It was-held, that the probate was not void and the mortgage admissible in evidence.</p>

This was a civil action tried before Gilmer, Judge, and a jury, at Spring Term, 1884, of Yadkin Superior Court. The defendants appealed. The facts appear in the opinion.

<p>Evidence — Referee’s Rote- — Official Eocwments.</p> <p>1. The minute in writing oí the evidence of a witness examined before a referee, is not admissible in evidence on the trial of an issue before a jury in the same cause.</p> <p>2. Papers purporting to be exemplifications from the Treasury Department of the United States, but which were not authenticated in any manner whatever, eanuot be admitted in evidence.</p> <p>3. Even if such papers had been admitted as evidence before the referee, this does not make them evidence in a trial before a jury, unless by consent.</p>

<p> Costs. </p> <p>On a trial before a justice, the defendant claimed a credit of 850 on the note sued on, which still left a balance due the plaintifl, and which the justice decided against him. On appeal to the Superior Court, this credit being the only matter in dispute, it was found by the jrn-y in favor of the defendant; B.eld, that, the defendant is liable for the costs in the Superior Court.</p>

Civil. ACTION tried at December Term, 1884, of the Superior Court of New Hanover county, before Avery, Judge, and a Tu7- Verdict and judgment for the plaintiffs, and appeal by the defendant. The facts appear in the opinion.

AcxiON for the recovery of land, tried at Spring Term, 1884, of Granville Superior Court, before McKoy, Judge, and a jury- There was a verdict and judgment for the defendant, and the plaintiff appealed.

<p>This was a civil action for possession of laucl, tried at the Fall Term, 1883, of Hertford Superior Court, before Avery, Judge, and a jury.</p> <p>The plaintiff claimed the land in controversy under a deed made to one Stephen Smith by Thomas B. Sharp, which contained the following description of the land conveyed, to-wit: tl The Mount Pleasant Fishery,” with the land attached to the same, supposed to be one thousand yards in length, bounded by the brink or brow of the hill on one side and the river on the other, from one end of the beach to the other.</p> <p>It was admitted that the title was out of the State, and that the plaintiffs were the owners of and entitled to the possession of all the land embraced within the above recited description; but it was insisted by the defendants that the loons in quo was not embraced therein.</p> <p>It was in evidence that Simon’s Mill Creek and Nowell’s Mill Creek emptied into Chowan River from the west. That the distance from one of said creeks to the other was 1,299 yards; that from Nowell’s Mill Creek up the river towards Simon’s Mill Creek for a distance of thirty-three yards was a marsh extending to the water’s edge. That at the upper end of said marsh was a hill or ridge which extended up the river to within about five yards of Simon’s Mill Creek. That the distance between the river and said hill or ridge varied from three or four feet to one hundred yards in width. That from the lower end of said hill or ridge to the upper end of the Zooms in quo was 990-|- yards. That the loous in quo or wharf was about 270 yards below Simon’s Mill Creek.</p> <p>There was evidence tending to show that there was continuous beach from about thirty-three yards above Nowell’s Mill Creek to about thirty yards below Simon’s Mill Creek, and that one part of it was about as well adapted to the purpose of fishing as the other; only about 300 yards of the beach was actually used for landing the seine by those who operated the “Mount Pleasant Fishery,” and the upper windlass of the fishery did not •extend up the river as far as the locus in quo or Mount Pleasant Wharf.</p> <p>There was evidence tending to show that from the beginning of the bluff thirty-three feet above Nowell’s Creek at the marsh, to 265 feet above the wharf and in thirty feet of Simon’s Mill Creek, there was a continuous bluff or bank and no marsh. That the bluff and bank varied greatly in its distance from the water’s, edge. That from the beginning of the same near Nowell’s Creek up to about the lower windlass of the Mount Pleasant Fishery the water at high tide beat against the bluff or bank for forty or fifty yards. At that point it begins to recede to about what is actually used as a fishery and then again gradually approaches-the water, to a point about ten feet, above the upper windlass and 200 or 250 yards below the locus in quo, at which point the bank approaches so closely to the water, that at high tide it beats against its base, and continues thus close to it, till it reaches Simon’s Creek, except at the locus in quo, where a narrow ravine or gulch makes out from the river of about twenty-five yards in width. That between the points near the upper and lower windlass above named a natural beach seems to be formed, above and below which, respectively, a seine could only be fished, if at all, at great cost and by cutting away the bank and building Avhar-ves. That the river-shore is not generally called beach, except when it is used as a fishery, when it is so called.</p> <p>It was admitted that if the land claimed was not covered by the description in the deed, it belongs to the defendants.</p> <p>The plaintiffs asked in writing the following instructions, to-wit:</p> <p>1st. That the brink or brow of the hill, as described by the witness, on the one side, and the Chowan River on the other side,, and the end of the beach lying between said river ancl said hill, are the boundaries of the land conveyed to Sophia Smith by Thomas B. Sharp by the deed offered in evidence by the plaintiffs.</p> <p>2. That if the jury is satisfied from the evidence that the beach described by the witness begins at the marsh adjacent to Simon’s Creek, and extends down the river to the marsh at Nowell’s Creek, then the plaintiffs are entitled to recover the lands described in the pleadings.</p> <p>3. That if the jury is satisfied that the beach described by the witness begins at the mouth of Simon’s creek and ends at the mouth of Nowell’s creek, the plaintiffs are entitled to recover the loans in quo.</p> <p>4. That in questions of boundary the distance called for by the deed must prevail unless there be some other description less liable to mistake to control it — as where the distance called for was one thousand yards in length from end to end, and the premises described as at the Mount Pleasant Fishery, the line must continue to the end of the one thousand yards, although it goes beyond the Mount Pleasant Fishery.</p> <p>The Court refused to give any of the said instructions, but instructed the jury as follows, to-wit:</p> <p>The plaintiffs, bringing an action to recover possession, must recover, if at all, upon the strength of their own title, and, therefore, the burden is upon them to show, by a preponderance of testimony, that the boundaries set forth in their deeds cover and include the defendants’ possession. The Court, as to the calls in the deed from T. B. Sharp to Sophia Smith, which is the description relied upon by the plaintiffs, held,</p> <p>''(1) That the description of length of plaintiffs’ line, supposed to be one thousand yards, is not sufficiently definite to guide the jury in ascertaining the lines of the plaintiffs, because there is no certain point ascertained for the beginning or end of the line, and the distance is not fixed at exactly one thousand yards;</p> <p>(2) That the plaintiffs cannot hold or recover any land, except so much of the beach or shore as was actually used for the purpose of fishing, and extending out from the river to the brink or brow of the bluff or hill opposite to that portion of the beach used as a fishery;</p> <p>(3) That the description in the plaintiffs’ deed is upon its face ambiguous, and unless the plaintiffs have shown, by parol testimony, where the lines of their deed run, and also that they include the possession of the defendants at the wharf, the plaintiffs cannot recover;</p> <p>(4) That if the plaintiffs have satisfied you, by a preponderance of testimony, that the wharf would be included in a boundary ascertained by running a line from the highest point on the shore or margin of the river actually used as a fishery, down the river to the lowest point actually used as a fishery, and from the point last named to the brow of the hill opposite the point of beginning, and thence to the beginning, the plaintiff must recover, and not otherwise.”</p> <p>The plaintiffs, in deference to the opinion of the Court thus expressed, submitted to a non-suit, and appealed, and assigned the following errors:</p> <p>• 1. In refusing to give each of the instructions asked;</p> <p>2. In the instructions as given.</p>

<p>Civil actioN, tried at the Spring Term, 1884, of the Superior Court of NORTHAMPTON county, before Avery, Judge.</p> <p>Judgment for defendant. Appeal by plaintiff.</p>

<p>Civil ACTION tried before Shepherd, Judge, upon a demurrer to the complaint, at Spring Term, 1884, of LeNOIR county.</p> <p>The facts arc fully stated in the opinion.</p> <p>His Honor sustained the demurrer, and plaintiff appealed.</p>

Civil ACTION tried before Shipp, Judge,, and a jury, at Spring; Term, 1884, of the Superior Court of Iredell county. The fapts appear in the opinion. In deference to His Honor's ruling, the plaintiff took a non-suit and appealed.

This was an action to recover land tried before Avery, Judge, at the Spring Term, 1882, of ALEXANDER Superior Court. The plaintiffs claimed the land in controversy under a grant from the State to John Chapman in 1780, and the will of said Chapman devising the land to his children, Enoch and Letty Chapman, and a deed from them to the plaintiffs.

This was a civil ACTION tried before MaIZoy, Judge, and a jury, at the February Term, 1885, of Davie Superior Court.

This was a givil action tiled before McKoy, Judge, and a jury, at. Fall Term, 1884, of Rutherford Superior Court. There was a verdict and judgment for the plaintiffs, and the defendants appealed. After the record was docketed in the Supreme Court, after notice, the appellant moved for a certiorari to correct an alleged error in the case on appeal.

<p> Judgment for Cost Against Assignee. </p> <p>1. Section 539 of The Code does not apply to an assignment of the cause of action as collateral security for a continuing obligation;</p> <p>2. Nor when the assignment is only of a part and not of the whole cause of action.</p> <p>3. It applies when the assignee might, under §188 of The Code, be substituted for the original plaintiff.</p>

<p>This was an action for damages caused by the ponding of water on plaintiffs’ land — removed from the county of Lincoln, and tried before MaoRae, Judge, and a jury, at Spring Term, 1884, of Gaston Superior Court. .</p> <p>The plaintiff complained that the testator, J. W. Derr, being the owner of a dam across a creek flowing through the lands of plaintiff, had at various times raised and tightened the same and thereby damaged said land $250 annually. Plaintiff offered evidence tending to prove that the dam had been raised by defendant twenty inches or more higher in 1860 than it was in 1833, and again in 1874 some twelve inches higher, and that it had so stood until 1882, when it was washed away, and had not been rebuilt, and that the plaintiffs’ land was injured by reason of •said raising up to tbe time of trial, though the injury was not so great since the dam had been washed away. The annual damages by reason of said injury were variously estimated at from $75 to $250.</p> <p>Neither party excepted to the evidence, nor to the charge. The jury found all issues in favor of the plaintiff, and assess his annual damage at eighty dollars.</p> <p>The jury say for their verdict — “We find all issues in favor of the plaintiffs, and assess their damages at eighty dollars per annum, commencing from the 17th day of April, 1874, to the 17th day of April, 1877.”</p> <p>Rule for new trial. Rule discharged.</p> <p>The presiding judge declined to give judgment for three years’ damages preceding the beginning of the action, but gave judgment for the plaintiff for $642.20, this being the amount of damages estimated for the period beginning one year next preceding the bringing of the action and ending at the trial, eight years and ten days, at the rate of eighty dollars per year.</p> <p>From this judgment both parties appealed to the Supreme Court.</p>

This was the defendant’s appeal from the foregoing case, and was argued by the same counsel. The facts appear in the opinion.

<p>CiviXi ACTION tried before MacRae, Judge, at Spring Term, 1884, of GastoN Superior Court.</p> <p>The plaintiff brought this action to recover the sum of money mentioned in the bond sued upon, of which the following is a copy:</p> <p>“$588.70. For value received, I promise to pay G. 'W. Abernathy five hundred and thirty-eight dollars and seventy cents, to be paid when he removes from the property which he has sold me, and for a part of the purchase money of which this note is given, all claims, trespasses, or incumbrances whatsoever, and when he gives me full possession to said property, with all the rights, powers and privileges granted to the said G. W. Abernathy and A. Goodson, by a deed of conveyance from John Clem-mer, for the tract of land, of which the tract the said G. W. Abernathy sold me is a part. The said deed from John Clem-mer is dated August 8th, 1849, and, if it is necessary, I am to have the privilege to apply this money, or so much of it as may be necessary, to the removal of any incumbrances existing on this land bought by me from the said G. W. Abernathy; and I agree to pay eighty-five dollars of this money next October, if necessary, to pay legal expenses incurred by said G. W. Abernathy in attempting to remove said incumbrances, and this note is to draw interest from date. This March 25th, 1880.</p> <p>(Signed) H. D. Stowe. (Seal).”</p> <p>The tract of land mentioned in this bond, as sold by the plaintiff, consisted of ten acres, including the “Clemmer or Abernathy mill” and the water-power and dam connected therewith.</p> <p>The plaintiff alleged in his complaint that he had on his part complied in all respects with the terms, provisions and conditions provided and contained in the bond sued upon.</p> <p>The plaintiff introduced a deed from John Clemmer to G. W. Abernathy and A. Goodson, bearing date August 8th, 1849, containing two hundred and thirty-seven acres, in which deed the following clause appears, being the clause referred to in the bond declared upon:</p> <p>“And it is to be further understood that the said Goodson and Abernathy dam adjoining the island is to be kept up by them as high as it is, or to any necessary height clear of any claim of said Clemmer, or his heirs or assigns, in as full a manner as said Clemmer ever enjoyed, unto the said Goodson and Abernathy, and their heirs and assigns forever.”</p> <p>He also introduced a deed from A. Goodson to C. M. Abernathy, dated November, 1851, for one-half of two hundred and thirty-seven acres, his interest covering the land in dispute; also, a deed from C. M. Abernathy and wife to plaintiff G. W. Abernathy, dated November 2nd, 1878, for ono-lialf of the two hundred and thirty-seven acres mentioned; also, a deed from G. W. Abernathy and wife to H. I). Stowe, defendant, dated March 25th, 1880, including the mills, and being the land for which this note was given, and containing the same condition set out in the above-mentioned deed to Goodson and Abernathy from John Clemmer; and, also, a deed from John Cathey and George Cathey to John Clemmer, dated October 30th, 1834; and, also, a deed from John Hoke to George and John Cathey, dated 1827, and a deed from John Colter, sheriff, to John Hoke, dated 1827.</p> <p>The plaintiff* then proved by A. L. Henderson, the surveyor, that these several deeds covered the land sold by plaintiff to defendant.</p> <p>He then introduced Jonas Hoffman and G. W. Abernathy, who testified that John Clemmer and plaintiff, and those under whom they claimed, had been in possession of the land sold, claiming the same under the deeds offered by plaintiff, and operating the mills there, and keeping up the dams continuously until the year 1879 from 1837, and that the dam ran along up the river near the bank to a small island, and then across to a larger island. Jonas Hoffman further testified that he went to the mills and took charge of them himself for Clemmer in .1837, and remaining there in charge till 1844. The mill, at the time the witness went there, had the appearance of having been built-some three or four years. G. W. Abernathy, plaintiff, as witness for himself, further testified, that he sold this land to defendant in the spring of 1879, for eleven hundred dollars, and gave him a bond for title, and placed him in possession thereof; that the mills were at that time in good running order, and in same condition as provided for in the Clemmer deed, and that there were no claims, or trespasses or incumbrances thereon, that he knew of; that defendant paid something on account of the purchase money and executed the bond sued upon for the remainder at the time it bears date; and that defendant has been in possession and control of the property since the sale in the spring of 1879; that at the time the note sued on was given in March, 1880, witness made defendant an absolute deed and title, and the bond for title was surrendered; that in 1877 or 1878, C. J. Lineberger & Co., who were operating a cotton factory on the river nearly opposite the land sold, built a dam from their side of the river, commencing a little below and running across and joined to witness’s fore-bay; this clam was higher than the one witness had, and gave him at his mills a greater head of water, and was no injury to his property, but a benefit; that witness built a paid of this dam himself, and used the same in running his mills; that after witness sold the property to ■defendant, the mills were allowed to go down, and defendant-hauled away some three or four hundred dollars’ woi-th of property from the mills; that the fore-bay in the )rear 1879 was washed out by a freshet, and Lineberger & Co. put a temporary obstruction in the same, “ a hedge ”; that this was about fourteen feet wide, and could have been removed for from eight to twelve dollars; that witness told Lineberger not to put the same in, but Lineberger did, and agreed to move it at his own expense whenever the owners of the property wished to rebuild and go to work.</p> <p>The witness also testified that before bringing the action he offered to remove this obstruction himself, and asked permission to do so, which was not given by defendant; and further, that at the time he made the bond to the defendant in the spring of 1879, and at the time he made the title in the spring of 1880, there was enough water to operate the mills sold to defendant, and in same plight and condition as they were under the deed from John Clemmer to Abernathy and Goodson, of date August 8th, 1849; that he gave defendant possession and control of the property sold in the same manner and to like extent as was enjoyed by himself and predecessors under the John Clemmer deed.</p> <p>The deed from John Clemmer to Abernathy and Goodson, of date August 8th, 1849, specified that it included the two mills.</p> <p>The witness Abernathy testified that the race dug by Line-berger to run the lower factory was dug since his sale of the property to Stowe, and the execution of the bond sued upon.</p> <p>The defendant then introduced the record of an action in Gaston Superior Court in favor of W A. Stowe v. Woodlmtm Manufacturing Company, that commenced in 1882,</p> <p>To this the plaintiff objected. Objection overruled, and the plaintiff excepted.</p> <p>This action was for damages caused on alleged diversion and appropriation of the water of the river above the property sold to defendant.</p> <p>The defendant then offered</p> <p>(1) A deed from Moses H. Rhyne and wife to M. C. Rhyne, bearing date 1871;</p> <p>(2) Also a deed from C. J. Lineberger and others to the Woodlawn Manufacturing Company, dated September 1879;</p> <p>(3) And a deed from C. J. Lineberger and others to the Lawrence Manufacturing Company, dated 1879.</p> <p>The plaintiff objected to the introduction of each of the foregoing deeds offered by defendants. The objections were overruled and the plaintiff excepted. Defendant then introduced A. L. Henderson, who testified that the land described in the complaint in the action of W. A. Stowe v. Woodlawn Manufacturing Company, et ais., and claimed to be the property of plaintiff in that action, and alleged therein to be damaged, was the land sold by plaintiff' to defendant, and for which the note declared upon was given. This witness also testified that the deeds introduced by defendant included the bed of the river, adjoining the land sold to defendant, and for which the bond declared upon was given.</p> <p>There was no evidence offered by defendant of any occupation of the property and assertion of any claim or right under the deeds introduced by them.</p> <p>There was no evidence offered that either the Lineberger or Woodlawn Company, or Lawrence Company, or any other person or company, ever set up any claim to any part of the land or property sold to defendant by plaintiff until the commencement of the suit of W. A. Stowe v. the Woodlawn Manufacturing Company, et als.</p> <p>The plaintiff' contended that upon the evidence there was no incumbrance, claim or trespass upon the property sold, and that the conditions of the bond had been in all things substantially complied with.</p> <p>The plaintiff further contended upon the evidence introduced, that there was no valid claim, trespass or incumbrance upon the property sold, and that the conditions of the bond sued upon had been in all things substantially complied with; that he had shown title to the lands, dams, mills and property sold, by possession under title for more than thirty years; that plaintiff had placed defendant in as full possession of the land as ever John Clemmer had enjoyed; that Clemmer had only a privilege, but that’the possession of thirty years, under title, ripened his privilege into a good title; that the. claims and incumbrances must be valid ones; that the filling up of the fore-bay was not an existing trespass; and that the incumbrances had been tried in this suit and were not valid.</p> <p>The court intimated the opinion that under the facts as proven, there were incumbrances existing on the property and that plaintiff could not recover.</p> <p>In deference to the opinion of the court, the plaintiff submitted to a non-suit and appealed.</p>

<p>This was a civil action tried before MacRae, Judge, and a jury at Spring Term, 1884, of -CLEVELAND Superior Court.</p> <p>The facts appear in the opinion.</p> <p>There was a verdict and judgment for the plaintiff, and the defendant appealed.</p>

This was a motion to enter judgment mmc pro tunc heard before Graves, Judge, at Fall Term, 1883, of Yancey Superior Court. His Honor granted the motion', and the defendants appealed both from the order allowing the judgment to be entered and from the judgment itself. The facts appear in the opinion.

Civil action tried before Graves, Judge, and a jury, at Spring Term, 1883, of Davie Superior Court. The facts appear in the opinion. There was a verdict and judgment for the defendants, and the plaintiffs appealed.

<p>MotioN in the cause heard before Gilmer, Judge, at Spring Term, 1884, of Davie Superior Court.</p> <p>His Honor refused the motion and the defendant appealed.</p>

The General Assembly passed an Act, ratified and taking effect on March 8, 1883, entitled, “An act to enable the people of Cumberland county to establish a free bridge over the Cape Fear river at or near the town of Fayetteville, North Carolina,” (Laws of 1883, ch. 260).

PETITION by the defendants to rehear, filed February 23,1885, and heard at February term of the Supreme Court. The case is reported in 91 N. C., 363. The respondents moved to dismiss.the petition on the ground that it was not filed within twenty days after the commencement of the term succeeding that at which judgment was given. The reasons on which the Court was asked to reverse its former decision appear in the opinion.

<p>Evidence — Parol to contradict a wt'iting — Principal and Surety.</p> <p>1. The rale that parol evidence cannot be admitted to contradict a written contract, applies to actions on the contract itself, but not to such as arise collaterally out of it. So, where it appeared on the face of anote that certain parties thereto were sureties, in an action for contribution parol evidence is admissible to show that they were really principals.</p>

<p>Civil. ACTION tried at Spring Term, 1883, of Beaufort Superior Court, before Shepherd, Judge.</p> <p>There was judgment for the defendants, and the plaintiff appealed.</p>

Case ageeed heard at August Term, 1884, of the Superior Court for Wake county, by Oudger, Judge. This action instituted in the Superior- Court, to enforce payment of the residue of the debt contracted in the purchase of the land described in the complaint from the feme plaintiff, previous to her marriage with the other plaintiff, resulted in a judgment therefor and for the sale of the premises.

<p>Trespass— Costs.</p> <p>In an action oí trespass to real property, where the plaintiff’s title and the fact of trespass are both put in issue by the defendant’s answer, and the jury find the issue as to the title in favor of the plaintiff, and the issue as to the trespass in favor of defendant, the defendant is entitled to judgment for costs. To entitle the plaintiff to recover costs, both issues must be found in his favor.</p>

Civil, ACTION, tried on appeal from a justice of the peace, before Avery, Judge, and a jury, at January Special Term, 1884, of Bertie Superior Court. His Honor, being of opinion thatj upon the facts as found by the special verdict, the contract was usurious, gave judgment for the defendant, and the plaintiff appealed. The facts are fully stated in the opinion. ■

Civil ACTION, heard on appeal from a justice of the peace, before Avery, Judge, at January Special Term, 1884, of Biortie Superior Court. His Honor gave judgment discharging the attachment and dismissing the action, and the plaintiff appealed. The facts fully appear in the opinion.

<p>Civil action, tried, on appeal from a justice of tire peace, at Spring Term, 1884, of the Superior Court of Halifax county, before Avery, Judge, and a jury.</p> <p>This action was commenced before a justice of the peace for the recovery of fifty dollars due by the note described in the contract below set out, which the plaintiff claimed as a forfeiture by the defendant G. H. Hoffman, for non-compliance with that contract, which was as follows:</p> <p>“This article of agreement entered into this 17th day of August, 1882, between W. H. Bell of the first part, and Gerson Hoffman of the second, witnesseth:</p> <p>“ That, whereas, W. H. Bell has this day sold to said Hoffman the entire stock of goods and fixtures he may have in store on Main street on the 1st day of September, 1882, the party of the second part agreeing to pay wholesale prices as per invoice from G. Oppenlieimer & Son, making the following payments: One half cash, balance, of two equal notes, payable in sixty and ninety days from date of said notes, the party of the first part approving security.</p> <p>“Now then, in consideration of above sale and promises, the parties of first and second parts have this day given each to the other a note of fifty dollars as forfeiture of non-compliance. These notes shall be sealed and delivered in keeping with this contract.</p> <p>“ In witness whereof, we have hereunto set our hands and seals.</p> <p>W. H. Beuu, (Heal).</p> <p>G. Hoffman, (Seal).”</p> <p>The justice rendered judgment in favor of the plaintiff; from this judgment the defendant appealed to the Superior Court. By consent, the defendant pleaded, as’a counter-claim, the note executed to defendant G. Hoffman, which is described in this contract.</p> <p>The plaintiff testified that he was able, willing and ready to perform the contract on his part, on the day named for performance. On cross-examination, he stated that the defendant G. Hoffman came to him about ten o’clock of the day fixed by the contract, and told him he was ready to comply with the contract, and that be desired to take an inventory of the goods; that he (W. H. Bell) claimed ten per centum on the prime cost price of goods; that this was what he contracted for; that this was what wholesale price, as per invoice from G. Oppenlieimer & Son, meant, and that he refused then to allow the inventory to be taken, unless the said defendant would allow ten per centum to •be added to the prime cost price, and unless he did so he would not trade. Hoffman refused to allow this and left. The jdaintiff further testified that about two o’clock of said day he told Hoffman that he .could then take the inventory, as lie would settle according to his construction of the contract. Hoffman declined to do this, and stated that he had made other arrangements.</p> <p>Hoffman was introduced as a witness for himself and corroborated plaintiff.</p> <p>The defendant then introduced G. Oppenheimerj who testified that he was the G. Oppenheimer referred to in the contract-.</p> <p>The defendant’s counsel asked him at what price he sold to the plaintiff.</p> <p>The plaintiff objected to the cpiestion as irrelevant, as its object was to vary and alter a written contract by parol evidence, and that the answer thereto could not and did not tend to explain a latent ambiguity in the written contract. The objection was overruled and the plaintiff’ excepted. The witness theu said, at cost price.</p> <p>The Court framed and submitted these issues:</p> <p>1. Did the plaintiff refuse to comply with his contract on his part on the day agreed upon for performing the stipulation of the written contract?</p> <p>2. Was the defendant ready, willing and able to comply with the contract on his part when the plaintiff’ refused on his part?</p> <p>The plaintiff asked the-Court to submit this issue: “Did the plaintiff’ offer to comply with said contract by adding ten per centum to the prime cost price of goods, and did he offer to comply with said contract as the defendant understood its terms before sunset of said day?” The Court.refused to do so.</p> <p>The Court charged the jury that if they believed that the plaintiff refused to comply with his contract on the day named, when the defendant offered to comply on his part, he could not recover, notwithstanding he did offer to comply before sunset of the day named.</p> <p>The plaintiff excepted to this charge and asked the Court to charge that there was no evidence that the plaintiff had refused to comply with said contract on his part. The court- refused this and plaintiff' excepted.</p> <p>The jury responded “yes” to both issues. The court gave judgment against the plaintiff for fifty dollars, with intei’est from September 2d, 1882.</p> <p>Whereupon the plaintiff’ excepted and appealed to this court.</p>

This was a motion to continue an injunction to the hearing heard before McKoy, Judge, at Spring Term, 1884, of Guil-ford Superior Court. His Honor refused the motion, dissolved the restraining order theretofore granted and dismissed the action. From this judgment the plaintiffs appealed.

MotioN made iu the Supreme Court- to make parties. The action Avas tried before Guclger, Judge, at Spring Term, 1884, of Gates Superior Court, and aatis brought to subject certain lands, once the property of Wm. Lee, to the payment of a judgment rendered against him. It was alleged that said Lee had executed a deed for the land to the defendant Eure, for the purpose of defrauding his creditors.

Civil action-, heard before Avery, Judge, at February Term, 1884, of Wake Superior Court., upon exceptions to the report of a referee. The facts sufficiently appear in the opinion. There was a judgment for the defendants, and the plaintiffs appealed.

Civil action, tried on appeal from the judgment of a Justice of the Peace, before Shepherd, Judge, at Spring Term, 1884, of Wilson Superior Court. Judgment was rendered for the plaintiff, and the defendant appealed.

<p>MotioN to dismiss an appeal from NORTHAMPTON Superior Court, heard at the February Term, 1885, of the Supreme Court.</p>

Special proceediNO begun in the Superior Court, before the Clerk thereof, of Dukhají county. The clerk having granted the motion of defendants to dismiss the proceeding, the plaintiff appealed to the judge at Chambers. On the hearing before Philips, Judge, at Chambers, the order of the clerk was reversed and the case remanded to the clerk. From this judgment of the Court the defendants appealed.

This was a civil action for divorce, heard before Craves, Judge, at July Special Term, 1884, of RANDOLPH Superior Court. Upon the facts appearing in the opinion of this court, His Honor continued the cause until Fall Term, 1886. From this order the plaintiff appealed.

<p>Special PROCEEDING, begun in the Superior Court of Greene county and tried at July Special Term, 1884, before MaeRae, Judge.</p> <p>"Verdict and judgment for plaintiff; appeal by defendants.</p>

Rule on the defendant to show cause why he should not be attached for contempt for not paying certain money into court which came into his hands as receiver, heard at Spring Term, 1884, of JOHNSTON Superior Court, before Philips, Judge. His Honor discharged the rule, and the plaintiff appealed. The facts are fully set out in the opinion.

<p>Injunction — Receiver—Fraudulent Conveyance.</p> <p>1. Where the application for a receiver is based upon the allegedfraudulent character of a conveyance, the question of whether or not the deed is fraudulent, belongs to the final hearing of the cause, and the alleged fraud will only be considered on such motion for areeeiver, as showing grounds for the protection of the fund until the final hearing.</p> <p>.3. In such case, a receiver will not be appointed, unless it is manifest that the fund is mismanaged and in danger of being lost, or where the insolvency of an unfit trustee is present or imminent.</p>

MotioN by the defendant to dismiss an appeal from the Superior Court of Chow AN county, heard at-February Term, 1885,. of the Supreme Court. The facts appear in the opinion.

This was an ACTION for the recovery of land, -tried before MacRae, Judge, and a jury, at Spring Term, 1884, of LINCOLN Superior Court.

This was a motion to recall an execution and set aside a judgment, heard before Shepherd, Judge, at Spring Term, 1884, of DupliN Superior Court. His Honor refused the motion, and the defendant appealed. The facts appear in the opinion.

<p>This was a civil actiost for the recovery of land, tried before Gilmer, Judge, and a jury, at Fall Term, 1883, of G-astow Superior Court.</p> <p>There was a verdict and judgment for the defendant from which the plaintiff appealed. *</p>

Civil action, heard before MaeBae, Judge, at Spring Term, 1885, of Catawba Superior Court. There was a judgment for the defendant upon the facts agreed to, and the plaintiff appealed.

<p>Civil ACTION, tried before Gilmer, Judge, at Fall Term, 1884, of Bueke Superior Court...</p> <p>There was a judgment for the plaintiffs and the defendants appealed.</p>

<p>Civil, ACTION, tried before Avery, Judge, at February Term, 1884, of Wake Superior Court.</p> <p>There was judgment for the defendant, and the plaintiff' appealed.</p>

Civil ACTION, tried before Graves, Judge, aud a jury, at July Special Term, 1882, of the Superior Court of VaNCE county. The facts appear iu the opinion. The plaintiff appealed.

<p>Civil actios, tried before MacBae, Judge, and a jury, at Spring Term, 1885, of Catawba Superior Court.</p> <p>There was a verdict and judgment for the plaintiff and the defendant appealed.</p>

This was an action of claim and delivery for two bales of cotton, tried before MacRae, Judge, and a jury, at the July Special Term of GreENE Superior Court. On the trial the plaintiff offered evidence tending to show that one Charles Hart contracted with Lewis Johnson in 1874 for the laud upon which the two bales of cotton in controversy were raised in 1878. Johnson sold the land to Alexander Williams and turned over to him the notes which Hart had given him for the land.

<p>PetxtioN for a certiorari filed by the defendant at February Term, 1884, of the Supreme Court.</p> <p>The facts appear in the opinion.</p>

This was A civil action- begun before a justice of the peace and brought by appeal of defendants to the Superior Court, and tried before MacBae, Judge, at the Fall Term, 1884, of Davie Superior Court. The pleadings before the justice were oral. The plaintiff sued upon a bond, and the defendants pleaded payment and set off. In the Superior Court the pleadings were reduced to writing.

Civil ACTION, tried before Shipp, Judge, and a jury, at Fall Term, 1884, of HENDERSON Superior Court. It appears in the record that no distinct issues were eliminated and submitted to the jury, but only “that the jury find all issues in favor of the plaintiff, and assess his damages at $250.” There was a judgment for the plaintiff on this verdict, and the defendant appealed.

<p>Civil ACTION begun before a justice of the peace aud heard on appeal before Shipp, Judge, and a jury, at Pall Term, 1884, of HENDERSON Superior Court.</p> <p>There was a verdict and judgment for the plaintiff, and the defendant appealed.</p>

<p>MOTION for a receiver, in supplemental proceedings, heard before Graves, Judge, at Chambers in RowAN county.</p> <p>His Honor refused the motion, and the plaintiff appealed.</p>

<p>Petition to Rehear— Vendor'’s Lien — Specific Performance.</p> <p>1. A petition to rehear should point out the ruling which is alleged to he erroneous, but should not, by a course oí reasoning, undertake to show .that it is erroneous. The argument should be made at the hearing, andnot in the petition to rehear.</p> <p>2. The doctrine o£ the vendor’s lien for unpaid purchase money, has long been repudiated in this State.</p> <p>3. A court of equity will not decree the specific performance oí a contract to convey land, until the lull price has been paid; but this does not rest on the doctrine of lien, but upon the rule that a court of equity will refuse relief to one who will not do what, in equity, he ought to do,</p> <p>4. The rule announced in the former decision of this case affirmed, that where A purchased land, and after paying a part of the purchase money, assigned his interest to.B, taking from him a promise to pay the balance due to the vendor and his bond for the part A had paid, and B afterwards assigns his interest to the plaintiff; the plaintiff, upon paying the balance due the estate, will be entitled to a deed for the land, unencumbered with any lien in favor of B.</p>

Civil ACTION, tried before MacRae, Judge, and a jury, at the July Special Term, 1884, of GreeNE Superior Court. The facts fully appear in the opinion. The plaintiff, in deference to His Honor’s opinion, took a non-suit and appealed. »

<p>Findings of Fact by the Supreme Court — Scale.</p> <p>1. Qucere, whether the Supreme Court can review the findings of fact made hy the Judge below, in an action against an executor for an account and settlement of the estate of his testator.</p> <p>2. IVhere an executor sold property of his testator in July, 1863, on nine months credit, he is liable for the sealed value of the money for which it sold, at the time of the sale and not at the expiration of the time of credit.</p>

<p>Executor— Confederate Money.</p> <p>1. An executor during the war took certain notes belonging to the estate of his testator, and substituted for them Confederate money of his own. The notes proved to be worthless; Meld, that he is chargeable with the scale value of the Confederate money at the date of the attempted substitution.</p> <p>2. Where an executor swears that certain Confederate money was the property of the estate, but is unable to explain by whom it was paid, or how he is able to remember the character of the fund as being' a part of the trust estate; Held, not sufficient to relieve him from liability.</p> <p>This is the defendant’s appeal, in the foregoing' case.</p>

This was a special proceeding tried before Graves, Judge, at Fall Term, 1884, of Beaufort Superior Court. The proceeding was commenced before the Clerk of the Superior Court of Beaufort county by a petition filed in said court by R. W. Wharton, administrator de bonis non of James W. Gaylord, deceased, against the defendants to sell certain lands descended from him to his heirs to make assets for the payment of the debts of the deceased.

Civil ACTION, tried on the report of the referee, Geo. V. Strong, Esquire, and the exceptions filed thereto, before Qudger, Judge, at August Term, 1884, of Wake Superior Court. The Court adopted the findings of fact and affirmed the conclusions of law of the referee, overruled the plaintiff’s exceptions, and adjudged the action be dismissed. From this judgment the plaintiff appealed. The facts sufficiently appear in the opinion.

Civil actioh tried before Avery, Judge, and a jury, at February Term, 1884, of Wake Superior Court. There was a verdict and judgment for the plaintiff, and the defendant appealed.

Civil action, heard on exceptions to the report of a referee, at August Term, 1884, of Mecklenburg Superior Court, before McKoy, Judge. His Honor gave judgment for the plaintiff and the defendants appealed. The facts appear in the opinion.

Civil action-, tried at Spring Term, 1880, of NORTHAMPTON Superior Court, before Gudger, Judge. This case is reported in 87 N. C., 34, and also in 90 N. C., 558, and in pursuance of an order of reference therein made, the referee submitted his report to this court, and the cause was heard upon exceptions thereto.

After tlie opinion in the foregoing case was filed, a report was made by the Clerk óf this Court, to whom it was referred, to which both parties filed exceptions.

This was a civil ACTION, pending in Wake Superior Court, heard before Avery, Judge, on motion to dissolve a restraining order, at chambers on the 26th of May, 1884. On the 26th day of January, 1881, the plaintiff, B. N. Howell, borrowed of the defendant the sum of twenty-five hundred dollars, and gave his bond therefor, to become due at twelve months, and bearing interest from date at the rate of eight per cent, per annum, payable semi-annually.

MOTION to set aside a judgment rendered in a special proceeding heard, on appeal from the decision of the clerk, before Shepherd, Judge, at Fall Term, 1883, of Halifax Superior Court. His Honor found the following facts : 1.

Civil aotioN, tried before His Honor, Gudger, Judge, at Fall Term, 1884, of Halifax Superior Court. The action was begun on the 11th of October, 1879, returnable to Spring Term, 1880, to recover the possession of a tract of land in Halifax county, and for damages for cutting and carrying off the timber trees thereon. At Fall Term, 1888, the defendant filed his answer denying plaintiffs’ title to the land, and also denying the trespass upon the samé.

<p>Civil ACTION, heard upon exceptions to the report of a referee before Qudger, Judge, at August Term, 1884, of Wake Superior Court.</p> <p>His Honor overruled the exceptions, confirmed the report, and gave judgment- for the plaintiff, and the defendant- appealed.</p>

MotioN to set aside a judgment, heard before Gtudger, Judge, at Chambers in Raleigh on January 21, 1885. His Honor granted the motion, and the plaintiffs appealed.

Civil, ACTION tried before Gilmer, Judge, and a jury, at Spring Term, 1884, of Davidson Superior Court. The facts appear in the opinion. There was a verdict and judgment for the plaintiff, and the defendant appealed.

MotioN by the defendant for a certiorari as a substitute for an appeal, heard at February Term, 1885, of the Supreme Court. The facts appear in the opinion.

Civil ACTION pending in CjraveN Superior Court, and beard before Philips, Judge, at Chambers, on 14th January, 3 885.

<p>Civil ACTION tried before Gudger, "Judge, at Fall Term, 1884, of Edgecombe Superior Court.</p> <p>The action was for the recovery of the land described in the complaint, originally brought against Knight, and subsequently, Bryant, by leave of Court, was made defendant, and claimed under a deed of trust to him from his co-defendant Knight. The plaintiff put in evidencie judgments against Knight rendered by a justice of the peace, and docketed in the Superior Court of Edge-combe county on the 14th day of February, 1883. Execution was issued thereon, and a deed was made to him by the sheriff of that county, after a levy and sale under the same. The plaintiffs claim that the deed of trust was void, for that it was made to hinder, delay and defraud the creditors of the maker Knight; that at the date of the trust Knight was indebted to Jones, Lee & Co., $4,180.00; to Savage, Son & Co., of which firm plaintiff was a member, $2,000.00; to W. J. Lawrence, the sum named in the deed of trust; to S. S. Mark & Co., $350.00, and H. L. Staton $250.00. The maker Knight, the trustee Bryant, and W. J. Lawrence, one of the oestui que trust, are residents of Edgecombe county, and Jones, Lee & Co., the other cestui que trust, live in Norfolk, Ya., and are a mercantile firm in that city.</p> <p>It was in evidence that the deed was drawn by W. M. Jones, a partner in the firm of Jones, Lee & Co. That the deed was signed by Knight at the residence of Jones, at Norfolk, Va., on the night of Friday, the .... day of February, 1883, only Jones, Knight and Lawrence being present. That Lawrence and Knight went by train to Norfolk on Friday evening, and left next morning. That they went directly from the train to J ones’ private residence, and from there directly to the train the next morning. That Bryant had no knowledge of the trust, until after its probate and registration. That he was selected by the parties named at the drawing of the deed; that shortly after the execution of the deed in trust, W. J. Lawrence, one of the cestui que trust, said to plaintiff that he, Lawrence, had carried Knight to Norfolk and made him make the deed in trust to defendant Bryant, to defeat and cut out Savage, Son & Co., and they should never get a cent of what was due them if he could help it. That Knight was present and did not deny it. That he added, “ I was carried to Norfolk and to Jones’ house, and remained there all night, and they trotted me back next morning just in time to reach the train, telling me that if I let the plaintiff see me he would have me arrested and put in jail.”</p> <p>Jones testified that “Knight came to my house with Lawrence and executed the trust openly, and, as I thought, a bona fide business transaction to secure the debt which he owed me. I then knew' nothing of his indebtedness to Savage, Son & Co., nor any suggestion that Savage would arrest him. There was no concealment of Knight’s presence in my house.” His Honor charged the jury that if the deed of trust was made with the intent to hinder, delay and defraud the creditors of Knight, or any one of them, the deed was void, but to have that effect the plaintiff must show' that the fraud was participated in by the cestui que trust Jones, who drew the deed. Plaintiff’ excepted. Verdict. Motion for a new trial for misdirection. • Motion refused. Judgment for defendant. Appeal by plaintiff.</p>

Petition by the defendant for a eertiorari as a substitute for an appeal, filed at October Term, 1884, of the Supreme Court, and heard at the present term. The facts appear in the opinion.

Civil action pending in Halifax Superior Court heard, by consent, before Oudger, Judge, at Chambers in Jackson, in September, 1884, upon the following case agreed.

Civil ACTION for the recovery of land, tried before Shipp, Judge, and a jury at Spring Term, 1884, of Watauga Superior Court. The facts sufficiently appear in the opinion as to the first exception. The third exception was as follows : His Honor told the jury that a person might acquire a title to land by a possession up to known and visible boundaries for thirty years without color of title, or by a possession of twenty-one years under color of title.

Civil ACTION to foreclose a mortgage, heard before Avery, Judge, at Fall- Term, 1884, of Wayne Superior Court.

This was a civil action pending in the Superior Court of Halifax county, and was heard before Avery, Judge, upon motion for an injunction and a receiver, at Chambers, on the 5th day of March, 1884.

Motion to re-open biddings and order a resale of lands, heard before Qudger, Judge, at Fall Term, 1884, of Halifax Superior Court. His Honor refused the motion, and the defendant Gooch appealed.

<p>Motion by plaintiff to dismiss an appeal from McDowell Superior Court, heard at February Term, 1885, of the Supreme Court.</p>

Civil action tried before Gudger, Judge, and a jury at Fall Term, 1884, of Halifax Superior Court. There was verdict and judgment for the defendant, and the plaintiff appealed.

Motion to continue an injunction to the hearing, heard by Shepherd, Judge, at Spring Term, 1884, of Carteret Superior Court. I-Iis Honor refused to continue the restraining order theretofore granted and dismissed the action, and the plaintiff appealed.

<p>Civil ACTION tried before Gudger, Judge, and a jury, at Fall Term, 1884, of Halifax Superior.Court.</p> <p>The plaintiff, a girl nine years old, sueing by her next friend, brought this action to recover damages for injuries sustained by her in the breaking of her arm while she was approaching the defendant’s passenger train at Weldon to go on the same from that place as a passenger to Halifax, a station on the defendant’s road. She alleges that the injury was occasioned by the negligence of the defendant in failing to keep the passage way for persons going on its train in good and safe condition and repair.</p> <p>The evidence was, that the defendant and two other railroad companies, each had a railroad track, a short section of each road, constructed in the usual manner, upon lines a few feet apart, nearly or quite parallel each with the other, under a large shed common to all the companies at Weldon in this State. Passenger trains on each of these roads stopped regularly under this shed to let off and take on passengers and baggage, and transfer passengers and baggage from one train to another.. No platform or elevation of any kind was used for such purpose; passengers got on the train directly from the ground, and getting off it stepped immediately upon the ground.</p> <p>One of the tracks mentioned lay between the defendant’s track and that on which the plaintiff fell and broke her arm.</p> <p>The plaintiff, going a way frequently used by persons approaching defendant’s train, while crossing the track of the Petersburg railroad, hitched her foot, as she testified, under the bottom of the iron-rail and fell. She did not know whether there Avas any open space under the iron-rail or not, she was looking in front of her towards the hotel, she had crossed one iron (meaning the iron-rail), and struck the next one and fell. She said “ If I had been looking where I was walking I could have kept from falling.”</p> <p>A witness who was with the plaintiff at the time of the accident, testified that only two trains meet at Weldon at that time, one train had arrived, the defendant’s train was expected in a few minutes, many persons were then passing about, no engine moving there at the time the accident occurred, two or three minutes before schedule time for arrival of the train. This witness and plaintiff Avei’e going direct to the hotel; he said, “ I was a step before her; she fell at the rail; I did not see her strike her toe; there was some elevation between this and next track on which she fell; there was a ridge of dirt two or three inches in height; the crossties were filled in between with earth even with the ties, smooth, and the dirt half-way of the rail, she could not have hung her foot under the rail. She is a child of average intelligence, she was nine years old. One looking where he Aras walking, could get over safely. The rails were of “T” iron. Track has been filled since the accident. More dirt in middle but not more against the rails. Flange of the engine keeps the dirt away from the inside of the rail two or three inches.”</p> <p>Another Avitness testified, that during the Spring before the .accident, the track Avas raised; track was not filled, end of sills exposed; enough of iron Avas exposed for the toe to catch under the rail; space of half-inch under the rail to the dirt. This is a common pass-Avay.”</p> <p>Another Avitness testified that the “track had been in the same condition it was at the accident sometime before — a year or more. Dirt even with the ties in the middle of the track ; flange of the rails covered. She could not get her toe under the bottom of the rail.” It is admitted in the case for this court, agreed to by the counsel of the parties, that “ plaintiff struck her toe against the inner rail of the Petersburg Railroad track.”</p> <p>The Court instructed the jury that accepting the evidence as true, there AA'as no negligence on the part of the defendant. They rendered a verdict accordingly. There was judgment for the defendant, and the plaintiff appealed to this court.</p>

<p>Motion by the defendant to dismis an appeal, heard at February Term, 1885, of the Supreme Court.</p>

<p>Civil Action, tried before McKoy, Judge, at. Fall Term, 1884, of Gaston Superior Court.</p> <p>His Honor gave judgment for the plaintiffs and the defendant appealed.</p>

CiyiIj ACTION for the recovery of land, heard before Qudger, Judge, and a jury, at Spring Term, 1884, of Beaufort Superior Court. The land, the titlé to a part of which is drawn in question in this suit, in 1809 belonged to John Gaylord, and both parties claim under him.

This was a motion made by the plaintiff at February Term, 1885, of the Supreme Court, to re-instate a ease on the docket which had been docketed and dismissed by the appellee under the rule.

<p>Appeal — Certiorari—Case on Appeal.</p> <p>1. An appeal must be brought to the next term of this Court held after the appeal is taken.</p> <p>3. If for any reason the Judge fails to settle the case on appeal upon disagreement of counsel, in time for the appeal to be docketed in the Supreme Court, the appellant must bring up the record in its imperfect state and have it docketed, and then move for the proper orders to get the case on appeal before this court, otherwise the appeal will be dismissed.</p> <p>3. It is the duty of the appellant and not of the clerk to have the record sent to the Supreme Court. So where the case on appeal was filed in the office of the Clerk of the Superior Court a short time before the Term of the Supreme Court to which it should have been brought expired, but the transcript was not docketed-until during the next term, the appeal was dismissed, although the appellant had applied for a certiorari at the term at which his appeal should have been docketed.</p>

<p>Civil ACTION, tried before Gudger, Judge, and a jury, at the Fall Term, 1883, of JacksoN Superior Court.</p> <p>The action was brought to recover damages for an alleged trespass committed by the defendant upon a certain piece of land for which the plaintiff alleged he had title.</p> <p>In his complaint the plaintiff alleged that the defendant entered upon the locus in quo with ■ force and arms, and with divers persons, and tore down his fence and removed it back upon his land so as to throw out of his inclosure a strip of his cultivated land one hundred yards long and from eighteen to twenty-seven feet wide, thereby turning out and exposing to depredation a great part of his land which was very valuable, together with many large and valuable fruit trees, to-wit: ten apple trees.</p> <p>The defendant denied the allegation of the plaintiff as set out in the complaint.</p> <p>The following are the facts disclosed by the case on appeal:</p> <p>The plaintiff offered a deed for the land in question to him from the executors of one Love. The deed was permitted to be read, under objection by the defendant, His Honor, at the time, stating that the deed would do the defendant no harm unless the plaintiff showed that the makers thereof had the right to make the deed.</p> <p>The plaintiff obtained the possession of the land in August, 1882, and leased it to one Inman for three years, who assigned the lease to Bumgarner. The lease had not expired when the alleged trespass was committed. One Jones and his father'had been in possession and cultivation of the land for forty years or more before the possession of the plaintiff. The fence inclosing the locus in quo was taken down by the defendant, and moved back upon the cultivated land for the distance of about one hundred yards in length and to the width of from eighteen to twenty-seven feet, and thereby several apple trees, which the plaintiff had reserved from the lease, were turned out and exposed to depredations.</p> <p>A public highway ran between the fence, as it originally stood, and a creek. The road had become impassable, and the defendant, who was the overseer, moved the fence of the plaintiff back in order to open a road over the land in question.</p> <p>The defendant had no authority for changing the road, and was forbidden by the plaintiff to make the change before it was done. Prior to moving the fence the defendant had obtained the consent of Bumgarner to clo so.</p> <p>The defendant requested the following instructions, to-wit:</p> <p>(1) That the gist of this action is the breaking the close of another, and that in order to maintain the action, the plaintiff must, at the time of the trespass, have the actual possession of the land and not the right merely to enter.</p> <p>(2) That the right to enter and gather apples merely was hot such a possession as would support the action- — the plaintiff must have the exclusive interest in the land at the time.</p> <p>(3) That in order that the plaintiff may recover in this action, he must show title in himself and those under whom he claims, or the actual and rightful possession of the land — -that in this ease the plaintiff has failed to show such title as the law requires, and if he recover at all, he must recover upon his actual possession. That if from the evidence they should be satisfied he did not have actual possession, then he could not recover.</p> <p>(4) That if the jury should believe that Bumgarner, the tenant in possession of the close, gave permission to the defendant to go upon the land and move the fence, then the plaintiff cannot recover.</p> <p>(5) That the damage must be proximate and not remote, and that the loss of a crop of apples is too remote.</p> <p>(6) That the damages must be for the act of entering and breaking the plaintiff's close, and cannot be for damages resulting after the trespass, such as injury to the subsequent year's crops, or the loss of the subsequent apple crops, being after the plaintiff had knowledge of the moving of this fence.</p> <p>(7) That the moving the fence by the defendant did not dis-seize the plaintiff of his freehold, if he had such an interest, and that he or his tenants might have re-entered immediately after the trespass complained of, and fenced up the road so opened.</p> <p>The Court declined to give the instructions and the defendant excepted.</p> <p>The court charged the jury as follows, to-Avit:</p> <p>(1) That the deed from James R. Love's executors was not sufficient to show title in the plaintiff, and that they should not consider it as any evidence of title.</p> <p>(2) That if the plaintiff and those under whom he claimed had been in the actual possession of the land upon which the road is alleged to have been made, for twenty years or more, excluding the time elapsing between the 20th day of May, 1861, and the 1st day of January, 1870, then the law presumed the title to be in the plaintiff.</p> <p>(3) That if the defendant had been notified by plaintiff not to enter and tear down the fence, and afterwards procured a license from Bumgarner to enter, the defendant could not deny plaintiff's title, for that the title and possession of the tenant is the title and ..possession of the landlord.</p> <p>(4) The defendant could not justify his act in entering on the lands mentioned in the pleadings, if he did enter, because he was an overseer of the road.</p> <p>The defendant excepted to the second, third and fourth instruction as given by the Court:</p> <p>There was a verdict for plaintiff; judgment accordingly; and defendant appealed.</p>

<p>MotioN to set aside a sale and re-open biddings heard before Graves, Judge, on appeal from the clerk, at Spring Term, 1884, of RuNCOMBE Superior Court.</p> <p>His Honor refused to order a re-sale and affirmed the judgment of the clerk, from which the plaintiff J. R. Trull appealed.</p>

<p>MotioN by the defendant to dismiss an appeal, heard at February Term, 1885, of the Supreme Court.</p>

Civil ACTION, heard before Shipp, Judge, and a jury, at Fall Term, 1884, of BuNCOMBE Superior Court. This action, commenced on March Srd, 1881, is to establish title to and recover possession of the third or upper story of a large brick building, erected by Mont.

This was the interpleaders' appeal in the foregoing action. Two years after that suit was begun and the pleadings put in, application was made to the Court by H. M. Parker and his wife M. E. Parker, to be allowed to interplead in the cause and set up a superior and independent title to the property in the latter, in opposition to the claims of both parties to the action.

<p>Civil ACTioif, heard before Shipp, Judge, at Fall Term, 1884, of Buncombe Superior Courft</p> <p>The facts fully appear in the opinion;</p> <p>The defendant Bank appealed.</p>

Civil ACTION, tried on appeal from a justice of the peace, before Graves, Judge, and a jury, at Spring Term, 1883, of Buncombe Superior Court. The facts appear in the opinion. There was a verdict and judgment for the defendant, and the plaintiff appealed.-

Civil ACTION, to recover laud, tried before Shepherd, Judge, at Spring Term, 1884, of Wilson Superior Court. His Honor gave judgment for the plaintiff upon the facts agreed, and the defendant ajipealed.

<p>Mortgage — Power of Sale — Inju/netion—Aeoount Stated — Pur-den of proof.</p> <p>1. While courts permit the use oí powers oí sale in mortgages, they regard them with much suspicion and watchfulness, and will enjoin their execution when an attempt is made to use them for the purpose of oppressing or obtaining an unfair advantage over the mortgagor.</p> <p>2. Where it appears in an application to enjoin a mortgagee from selling the mortgaged property under the power of sale, that there are many and complicated accounts between the mortgagor and mortgagee, and the balance due is uncertain, the Court will restrain the execution of the power of sale until an account can be stated and the amount due ascertained.</p> <p>3. In such case, the rule which requires a mortgagee, in certain cases, to pay the amount admitted to be due before the injunction will be granted, does not apply, because no definite sum is known to be due.</p> <p>4. A mortgagee with power of sale, is a trustee, 1st to control the property and apply the proceeds to the debt; 2nd, to account for any surplus to the mortgagor ; and he is held to a strict account.</p> <p>5. Where a statement of account is rendered to a debtor who keeps it for a long time without objection, it becomes an account stated, and cannot be opened except for substantial error, mistake, omission or fraud.</p> <p>6. In opening the account for any of these causes the burden of proof is on the debtor.</p>

This wlas a special proceeding, commenced before the clerk, and heard at Fall Term, 1884, of the Superior Court of Chowan county before Crams, Judge. The plaintiff appealed. The facts are stated in the opinion.

<p>Deed — Construction of — Color of Title — Adverse Possession— Estoppel — Durden of Proof — Possession—Description and, Location.</p> <p>1. When the habendum and warranty clause of a deed are joined, and the intention to convey a fee is clear, the words of inheritance will be so transposed as to connect them with the conveying terms, so as to secure the intended effect of the deed.</p> <p>2. A deed conveying a life-estate is color of title, and when accompanied hy adverse possession for the required time, will ripen into a good title to the life estate so granted.</p> <p>3. when the plaintiff claims under a deed purporting to convey the land in dispute, and shows an apparently adverse possession, the burden of proof is on the defendant to show that such possession is -not adverse; and when he claims a reversionary estate after a life-estate, that such life-estate determined too short a time before the bringing of the action to bar his right.</p> <p>4. A deed is an estoppel, even as between the parties thereto, ouly as to the estate conveyed.</p> <p>5. Where A, having a life-estate, conveys to B in fee, who conveys to C, the rever-sioner or remainderman does not have a right of action until the death of the life tenant. At his death, the possession becomes adverse, and will ripen into a good title by seven years’ possession, the title being out of the State.</p> <p>6. Possession by a grantee of any part of the land described in his deed, is constructive possession of the entire tract against all persons’, except a party having a superior title to the part of which there is only constructive possession.</p> <p>7. When the beginning corner was located, and there was evidence showing marked trees, corners, natural objects, &c.; It was held, some evidence from which a jury might locate the land in controversy.</p> <p>8. It is not error in a Judge to refuse to charge abstract principles of law which have no application to the ease.</p> <p>9. When a witness swears to his possession, with repeated acts of ownership extending over many years, which evidence is allowed to go unchallenged to jury, it is not improper for the Judge to assume a legal possession to have the been testified to and to so present the ease in his charge to the jury.</p>

This was a civil action, tried before Craves, Judge, at Spring Term, 1885, of Buncombe Superior Court. The action was brought to recover from the defendant, the amount of certain claims against the State of North Carolina, drawn on the Treasury of the State, which the defendant drew from the said treasury, to the use of the plaintiff. The defendant relied upon the plea of accord and satisfaction.

Civil action, tried before MacRae, Judge, and a jury, at Spring Term, 1884, of Mecklenburg Superior Court. • The complaint charges that the plaintiff, as route agent in the service of the post office department, and in charge of the mails on the defendant’s train, in passing between Charlotte and Dan-ville, in the latter part of November and early in December, 1877, in consequence of the insufficient warming of the room in the car assigned him, became violently ill and lost…

This was the defendant’s appeal in the preceding case. The trial of this cause was entered upon during the Spring Term, 1884, of the Superior Court of Mecklenburg county on March 5th, and terminated on the 12th day of the month, when, in open court, the defendant appealed, and was allowed to do so without making a deposit or giving the secured undertaking for costs. The session was concluded and the court adjourned on the 15 th day of the month.

Civil ACTION, for the recovery of land, heard before Graves, Judge, and a jury, at Spring Term, 1884, of BuNCOMBE Superior Court. It is conceded that the land in controversy belongs to the plaintiff by .virtue of the deeds under which he claims, unless the title thereto has been divested and transferred to the defendant Lorena Ramsay, of whom the other defendants are tenants, by virtue of possession accompanied with color of title for the prescribed period of time.

Civil action, heard before Avery, Judge, and a jury, at February Term, 1884, of Wake Superior Court. The parties entered upon the trial of the issues evolved out of the conflicting allegations contained in the pleadings, among which was an inquiry of the damages sustained by the plaintiff from the defendant’s conversion of the bonds in his custody by a sale, and his misappropriation of the proceeds to his own use.

<p>The executors of Jacob Harshaw, at Fall Term, 1869, of the Superior Court of Burke, recovered two judgmeuts ou bonds for the payment of money, executed on September 15th, 1866, to their testator, against Jacob B. Kincaid and others, the co-obli-gors not being the same on each, and were unable to obtain satisfaction upon executions sued out thereon. In September, 1869, the debtor’s homestead and personal property exemptions were laid off to him. He died in 1872, and the homestead exemption was again laid off for the benefit'of his infant children, the youngest of whom was born on July 18th, 1867. In April, 1876, his surviving widow also died. Successive writs of execution were issued against the debtor during his life, and against his administrator, the plaintiff in this proceeding, since his death down to the last, which issued on November 23d, 1881, all of which, as appears by the sheriff’s returns, were fruitless of result. The plaintiff, having no assets with which to pay the judgments, instituted proceedings in the Superior Court before the clerk, against the heirs-at-law of the intestate, for the sale of his descended land and its conversion into assets for the payment of the aforesaid judgments,' and they resist the action, upon the ground that they are barred by the lapse of time, and they claim that this defence is open to them when it is attempted to subject their lands to the payment of the debts.</p> <p>. The present suit was commenced by a summons issued on June 5th, 1882, at the instance of the administrator of Kincaid, to whom letters issued on the 29th day of November, 1875, more than three years after the intestate’s death.</p> <p>The clerk of Burke county having an interest in the testator’s estate, the cause was removed and committed to the jurisdiction of the Superior Court of Caldwell, on the hearing before the clerk of which court, it was adjudged that the plaintiff was not entitled to the relief demanded and that the defendants go without day and recover their costs.</p> <p>Upon the plaintiff’s appeal to the judge, he aflh’med the ruling and rendered judgment dismissing the petition with costs, and therefrom the plaintiff again appeals to this court.</p>

MotioN to make parties, in a cause pending in TjraNSYL-VANIA Superior Court, heard before Shipp, Judge, at Fall Term, 1884, of said Court. His Honor granted the motion, and the defendant appealed. A motion was made to dismiss the appeal in the Supreme Court on the ground that the order did not affect any substantial right and was not appealable.

Civil ACTION, heard before Graves, Judge, at Pall Term, 1884, of Beaufort Superior Court. This is an action of claim and delivery, brought on the 31st day of January, 1884, in the Superior Court of the county of Beaufort, to recover the possession of the steamer “ Edgecombe.” This steamer is a screw propeller of 52 ^¡r tons burthen, and enrolled under the laws of the United States in the Pamlico District in North Carolina in the custom house at New Berne.

Civil ACTION, heard upon exceptions to the report of a referee, before Gfuclger, Judge, at Fall Term, 1884, of Edge-combe Superior Court. There was judgment for the plaintiffs, and the defendant appealed.

<p>Civil action, heard before Shepherd, Judge, at Spring Term, 1884, of New PIanover Superior Court.</p> <p>The facts appear in the opinion.</p> <p>The defendants appealed.</p>

Special proceeding, begun before the clerk, and heard on appeal before MaEoy, Judge, at Spring Term, 1884, of PERSON Superior Court. His Honor rendered judgment for John C. Pass, and the other parties appealed. The facts fully appear in the opinion.

CiviTj ACTION, heard on exceptions to the report of a referee, before Avery, Judge, at February Term, 1884, of Wake Superior Court. There was judgment for the plaintiff, and the defendant appealed.

<p>This was a civil. ACTION, tried before Graves, Judge, at the Fall Term, 1883, of Burke Superior Court.</p> <p>The action was instituted by the plaintiffs as assignees of W. M. Walton, in behalf of themselves and all other creditors of Charles McDowell, deceased, against the defendants, John Gray Bynum, administrator, d. b. n. of Charles McDowell, deceased, and C. M. MeLoucl, administrator of N. W. Woodfin, deceased, Richmond Pearson, executor of R. M. Pearsou, deceased, Samuel McDowell, T. W. Walton and wife Annie, Cora McDowell and Manly McDowell, devisees of Charles McDowell, deceased.</p> <p>The plaintiffs alleged that they were the owners of the following sealed note and the judgment rendered thereon, which had been assigned to them by the obligee W. M. Walton, for value received, to-wit: “One day after date we, W. F. McKesson, as principal, and Charles McDowell and James McKesson as sureties, promise to pay W. M. Walton or order, twenty-two hundred dollars for value received. Given under our hands and seals, this 25th day of November, 1855.</p> <p>(Signed), W. F. McKesson, (Seal).</p> <p>Charijes McDoweer, (Seal). James McKesson, (Seal).</p> <p>That no part of the note has been paid. That W. M. Walton, assignee of plaintiffs, brought suit on said bond on the 15th of March, 1866, and at the Fail Term, 1869, obtained judgment thereon, as appears by the records of Superior Court of Burke county. That Charles McDowell died in the year 1859, leaving a last will and testament, which was duly admitted 'to probate in the county of Burke, in which among other things, there wqs a clause as follows, to-wit: “ I will, give and devise to my executor, all the lands which I own, for the sole and separate use of Julia McDowell, wile of my son James C. S. McDowell, during the life-time of him, the said James, and at. his death to his children, but if he dies childless, then to my grand-children, per capita.” That Tod. R. Caldwell was appointed executor in this will, but renounced the executorship, and Nicholas W. Woodfin was appointed and qualified as administrator own testamento annexo, of the estate of the said Charles McDowell, and gave an administration bond with John W. Woodfin, W. F. McKesson and Richmond M. Pearson as sureties. That N. W. Woodfin died insolvent, and C. M. McLoud was appointed his administrator, and John W. Woodfin and W. F. McKesson and James McKesson all died insolvent. That R. M. Pearson died leaving a large estate, and also a last will and testament, in which Richmond Pearson was appointed executor.</p> <p>That upon the death of N. W. Woodfin in the year 1876, John G. Bynum was appointed administrator de, bonis non of the estate of Charles McDowell, deceased. That James C. S. McDowell is dead, leaving the following children, viz.: Samuel McDowell, Annie, wife of Thomas Walton, Cora McDowell and Manly McDowell. The plaintiffs allege that Charles McDowell died possessed of a large personal estate which has been exhausted by the payment of debts and emancipation of slaves and other casualties of the late war, and there are no personal assets known to the plaintiffs out of which they can obtain payment of their debt, and none have come to the hands of John G. Bynum, the administrator de bonis non, as they are informed; but that Charles McDowell died seized of a large and valuable tract of land lying in Burke county, containing about 1,400 acres, which he devised to bis executor in trust for Julia McDowell for life, and after her death, to the children of the said James C. S. McDowell as above named, who are in the possession of the said land, and who deny that the assets of Charles McDowell were exhausted by his administrator, N. W. Woodfin, and say that he was guilty of a devastavit. They allege that they have called upon the said John G. Bynum and requested him to file a petition for the sale of the said land, which he has declined to do, and therefore they demand judgment that the land be sold to make assets for the payment of the testator’s debts; and, by amendment, in as much as the said defendant’s devisees, as aforesaid, deny that the assets of the estate of Charles McDowell, deceased, have been exhausted or legally applied, and allege that Woodfin, former administrator, was guilty of a devastavit, they demand that an account may be taken of the estate of Chas. McDowell, deceased, to ascertain whether the assets have been exhausted or have beeu legally applied, and how much, if any, assets are still in or ought to be in the hands of N. W. Woodfin, and if it appears that he is guilty of a devastavit, that plaintiffs may have judgment against his administrator and the security on his bond, to-wit: Eichmond Pearson, executor of E. M. Pearson, deceased, and for such other and further relief in the collection of plaintiff’s debt or claim as may be consistent with the facts found in this case.”</p> <p>Eichmond Pearson, as executor of E. M. Pearson, filed a demurrer and alleged as grounds therefor: 1st, that no relief is prayed against him in said complaint; and, 2d, that said complaint admits that there has been no devastavit of the principal of his testator, viz.: N. W. Woodfin, administrator cum testa-mento annexo of Charles McDowell, and consequently there is no breach of the administration bond of the said Woodfin.</p> <p>The other defendants, devisees, in answer to the complaint, allege that sufficient assets came to the hands of N. W. Woodfin, administrator of Charles McDowell, to pay all of the debts of his testator, but that the said Woodfin wasted and misapplied the same, and was guilty of a devastavit. They denied that there are any debts existing against the estate of Charles McDowell, deceased, for which they were liable, or for which their real estate (¡an in any way be charged or sold, to the amount of eight thousand dollars, or to any amount whatever; that the plaintiffs suffered a judgment quando to be entered against the administrator, instead of a judgment absolute, whereby the sureties on the administration bond were released from liability, to an amount more than sufficient to pay the debts of the testator.</p> <p>John G. Bynum adopted, as part of his answer, that of the other defendants, and further alleged:</p> <p>1st. That more than ten years have elapsed since the execution, if at all, of the bond sued on by the testator, and it is presumed to be paid by presumption of law;</p> <p>2nd. That no cause of action has accrued to plaintiffs on said bond within ten years next preceding the beginning of this suit;</p> <p>3rd. That said bond is paid or discharged by being merged in a judgment now on file in the office of Clerk of the Superior Court of Burke county;</p> <p>4th. That at the time the action was commenced there was an action which is still pending between the same parties, asking the same relief in the Superior Court of Burke county.</p> <p>His Honor gave judgment for the defendants, and the plaintiffs appealed.</p>

Civil ACTION, for the recovery of land, tried before Shepherd, Judge, and a jury, at Fall Term, 1884, of the Superior Court of Columbus county. The land in controversy belonged to the defendant C. T. Davis, under whom the contestants in the action claim.

This was an INDICTMENT for murder, heard before Avery, Judge, and a jury, at January Special Term, 1885, of Caldwell Superior Court. James Hoskins, a witness for the State, testified as follows: The homicide occurred on Sunday. On that Sunday I rode with prisoner and Ed. Ray a part of the way from Bakersville in the direction of the mica mines. They were on horseback. This was before the homicide occurred.

<p>INDICTMENT FOR murder, tried before Shepherd, Judge, and a jury, at Fall Term, 1884, of Cumberland Superior Court.</p> <p>The prisoner was charged with the murder of Mar/ Hughes, committed at her house on Monday night, September 29th, 1884. The deceased lived alone in the suburbs of Fayetteville, some two miles distant from the house of the prisoner, with whom she had kept criminal relations for four years preceding, he spending much of his time at night with her. The deceased had been on that day with Martha Campbell, a neighbor, engaged in ¡licking out cotton in the field, and about dark the two returned to the house of the deceased, at which they parted. After dark, about the hour of 7, the prisoner was seen about- 25 yards from the house, going in that direction. He stated to a witness that he left the place a quarter of an hour before sunset on that day. He was also observed to cross the Campbellton Bridge on his way towards his home between the hours of 8 and 9.</p> <p>Allen Jones, a witness for the State, passed the house or cabin occupied by deceased, about 8 o’clock that night, saw a light in it, and heard her talking. At a later hour, about 11, he again passed it and it was dark.</p> <p>At 8 o’clock the next morning, Tuesday, the deceased was found by Mai'tha Campbell on the floor, dead, with her skull fractured, as it appeared, by an axe, which with a kettle and two dresses belouging to her, were missing. The same morning the prisoner was discovered burning up the removed dresses, and on being asked what he was about, replied that he was burning nails.</p> <p>About three weeks before the homicide the prisoner had been heard to say that he understood a man was tiying to get between him and her, and that he intended to see that thing out. The case states that there were other circumstances pointing to the prisoner’s guilt.</p> <p>Evidence was offered in defence in regard to the movements of Henry Campbell, husband of Martha, about that time, with the apparent purpose of fixing the homicide upon him; and of his going to the house of the deceased, after his wife on the Wednesday next preceding, where the latter had gone to spend the night; and of his violent conduct there as he forced his wife to return. He was met when coming from the house, by a witness who represents him as being mad, and with a knife in his hand which he repeatedly opened and shut. His wife followed on behind.</p> <p>The prisoner proposed to show that the said Henry Campbell uttered threats, saying on the same "Wednesday night that he had a mind to go back, turn over the cabin and kill both women, and he intended to break up his wife/s visiting there, and witness would hear “of hell being played out there some time.”</p> <p>These declarations, on objection from the State, were excluded, and the prisoner excepted.</p> <p>The prisoner introduced a witness by -whom to prove his own good character, who, after full explanation of this form of evidence, as constituting general reputation, to render the proposed inquiry intelligible, persisted in saying he did not know what it was.</p> <p>He was then asked what the old master of the prisoner, while he was a slave, said about him. This testimony was also refused.</p> <p>When the evidence and the arguments were concluded, prisoner’s counsel submitted two instructions, which the court was requested to give to the jury.</p> <p>1. The jury should be as fully convinced of the guilt of the prisoner from the consideration of the circumstances, as if direct proof had been brought.</p> <p>2. In this case the burden of proof is on the State throughout, and every material circumstance must be fully proved to the satisfaction of the jury beyond a reasonable doubt.</p> <p>The last instruction was given, the first refused, and instead the jury were charged that every material circumstance must be established beyond a reasonable doubt; that these circumstances must all point to the guilt of the prisoner, and exclude every reasonable theory of his innocence; and produce moral certainty of his guilt in the minds of the jury before they could convict.</p> <p>The prisoner excepted to the denial of his first instruction.</p> <p>After conviction, a motion for a new trial was made for the alleged erroneous rulings and for the further reason, shown on affidavit, that one Tony "Williams, a witness for the State, had been examined and testified without having been sworn, the facts of which are found by the judge to be these:</p> <p>Through an inadvertence, the oath had not been administered, but the witness had been examined and .cross-examined without the attention of any one engaged in the trial being called to the omission. The prisoner w'as represented by two counsel, one of whom had no intimation of the neglect, until after the verdict was rendered. The other, after the case had gone to the jury and an hour before their agreement, was advised of the fact that one of the witnesses had not been sworn; but his informant refused to tell who the witness was. This attorney was not present when the verdict was returned, though he had opportunities to communicate to the court the information he had before the verdict was rendered.</p> <p>The court acquits the attorney of any improper motive in failing at once to make known what he had heard.</p> <p>After a verdict of guilty, the prisoner moved in arrest of judgment, because the bill of indictment did not charge that the deceased was in the peace of God, as well as in the peace of the State.</p> <p>The court refused to arrest the judgment, and pronounced judgment on the verdict, from which the prisoner appealed.</p>

<p>This was an INDICTMENT under section 1113 of The Code, tried before Graves, Judge, at the Fall Term, 1884, of Ci-iowan Superior Court.</p> <p>The indictment charged the defendant with slandering one Florence Paxton, an innocent woman, by saying he had had sexual intercourse with her.</p> <p>On the trial, the said Floience Paxton was examined as a witness for the State, and testified that “she had never had intercourse with the defendant Davis, or any other man, and that her life had been pure.”</p> <p>The defendant Davis, was then introduced as a witness in his own behalf, and swore that he had on several occasions had criminal intercourse with the said Florence.</p> <p>A number of witnesses were introduced to prove the character of said Florence, and stated it was very good. No witness was introduced as to Davis’s character.</p> <p>The Solicitor commented on the fact, that the defendant had introduced himself as a witness, and had failed to introduce witnesses to sustain his character, and said the witness Florence comes into' court with her character sustained — the defendant without a character.</p> <p>The defendant objected to these comments; but the Court refused to stop the Solicitor, stating they were proper, after the defendant had made himself a witness, and there was a conflict between him and Florence. To which the defendant excepted.</p> <p>The court charged the jury that, by innocent woman, the statute meant “ one who had never had actual illicit intercourse with a man. That mere lasciviousness, and the permission of liberties by men with her, although we might consider them improper, were not contemplated by the statute;” and the court further stated to the jury, “that the-defendant was before them in a twofold capacity, as witness and defendant, and that the comments of the solicitor should be considered only as affecting his character as witness.” The defendant excepted to the charge.</p> <p>There was a verdict of guilty — judgment against defendant, from which he appealed.</p>

<p>INDICTMENT for forgery, tried at Fall Term, 1884, of Randolph Superior Court, before Philips, Judge.</p> <p>The facts appear fully in the opinion.</p>

This was an INDICTMENT for murder, tried before Shepherd, Judge, and a jury, at Fall Term, 1884, of the Superior Court of CUMBERLAND County. There was a verdict of guilty, and the prisoner appealed from the judgment pronounced. The facts are fully stated in the opinion of the Court.

<p>INDICTMENT for burning a gin-house, tried before Shepherd, Judge, and a jury, at Fall Term, 1884, of Cumberland Superior Court.</p> <p>There was a verdict of guilty, and the defendant appealed from the judgment thereon.</p> <p>The facts are fully set out in the opinion.</p>

This was an INDICTMENT, tried before Philips, Judge, at Fall Term, 1884, of GreeNE Superior Court.

This was a CRIMINAL ACTION, tried before Shepherd, Judge, at Fall Term, 1884, of RICHMOND Superior Court. The action was commenced by warrant in a mayor’s court against the defendants, F. M. Deaton and H. T. Deaton, for a violation of an ordinance of the town of Laurinburg, and carried by appeal to the Superior Court.

INDICTMENT for larceny, tried at February Term, 1885, of the Criminal Court of New Hanover county, before Meares, Judge.

<p>Indictment — Slander of Innocent Female.</p> <p>After conviction the. defendant moved in arrest of judgment, because the indictment did not state “the circumstances under which the words were spoken by which the attempt is charged to have been made; Held, that this was not required; and that in indictments which charge statutory offences it is not only sufficient to use the words of the statute, but it was necessary to do so, or at least to use words of equivalent import. Held further, that the offence defined in the statute — The Oode, §1113 — is the attempt to destroy the reputation of an innocent woman, and when the indictment is for attempting to commit an offence, an exactness as great as in one which charges the offence itself is not essential.</p>

This was an indictment, tried before Avery, Judge, at Spring Term, 1885, of Buree Superior Court. The defendant was charged with an injury to a house under section 1062 of The Code.

<p>INDICTMENT for larceny, tried before Philips, Judge, and a jury, at Spring Term, 1884, of Anson Superior Court.</p> <p>There was a verdict of guilty, and from the judgment pronounced thereon the prisoner appealed.</p>

This was an indictment against the defendant, tried at Spring Term, 1885, of Burke Superior Court, before Avery, Judge. The defendant was charged with injuring, abusing and killing a cow, the property of Dulena Moody, in an enclosure not surrounded by a lawful fence, in violation of section 1003 of The Code.

This was an indictment for assault, tried before Philips, Judge, and a jury, at Spring Term, 1884, of Richmond Superior Court. There was a verdict of guilty, and from the judgment thereon, the defendant appealed. The facts appear in the opinion.

Indictment for larceny, tried at January Term, 1885, of the Superior Court for Cumberland county, before MacRae, Judge. The bill of indictment charged the defendant, as tenant, with the removal of part of crop produced on the land in 1884, under alease made November 1st, 1883, for one year. The jury rendered a special verdict, in which they found that the crop removed was produced on the land under a lease made in March, 1883, for that year.

INDICTMENT for murder, tried at January Term, 1885, of the Superior Court of CumbeblaND county, before MacJRae, Judge. The facts were as follows: The prisoner and deceased, who were half-brothers, were at a church festival at the house of 'Anthony Faulk on the 14th August, 1884. The house was situated in a field of 7 or 8 acres, with two lanes leading from it in different directions.

This was an INDICTMENT for shooting at a railroad train, tried before Shepherd, Judge, and a jury, at Spring Term, 1885, of Durham Superior Court. There was evidence tending to show that the defendant shot at the passenger train on the North Carolina Railroad, as charged in the indictment. That shortly before the shooting his pistol was taken away from him, when he demanded it, drew his knife, and threatened to cut the person who had gotten his pistol from him.

<p>INDICTMENT for an assault with a deadly weapon, tried before McKoy, Judge, and a jury, at Spring Term, 1884, of Caswell Superior Court.</p> <p>There was a verdict of guilty and His Honor, Judge McKoy, pronounced judgment, as appears in the opinion of this court.</p> <p>At Fall Term, 1884, of the same court, the defendant was brought before Philips, Judge, under the circumstances as set out in the opinion of this court, and the judgment was given from which the defendant appealed.</p>

<p>Motion to discharge the prisoner from custody for the nonpayment of costs, heard before Avery, Judge, at Spring Term, 1885, of Burke Superior Court.</p> <p>His Honor refused the motion, and the prisoner appealed.</p>

INDICTMENT for larceny, tried before Meares, Judge, and a jury, at February Term, 1885, of New Hanover Criminal Court. The defendant was indicted and charged with the larceny of some salted bacon sides, the property of J. M. Hardwick. In selecting the jury, after exhausting all of his peremptory challenges, the defendant offered to challenge two jurors upon the ground that they had served on the jury in this court within the past two years.