Volume 93 — North Carolina Reports

Pleading — Former Action — Joinder of Causes of Action. CryiL action tried before Graves, Judge, at Fall Term, 1885, of Chowan Superior Court.

Bankruptcy— Counter-claim — Parties—Judgment Liens Against Land, of Deceased Debtor. This was a PROCEEDING to enforce a judgment lien, heard before Gudger, Judge, at. Spring Term, 1884, of Gates Superior Court. There was judgment for the plaintiff, from which the defendants, M. H. Eure, B. L. Sanders and John R. Jones appealed. The facts are fully stated in the opinion.

Slander — Pleading—Mitigation of Damages. This was a civil ACTION tried before Shipp, Judge, at Spring Term, 1885, of Chowan Superior Court.

<p>Wills, Construction of — Sale of Land for Assefe — Jurisdiction of Judge and Clerk.</p> <p>This was a special PROCEEDING by plaintiff, as administrator cum test, annexo of N. Overman, deceased, upon petition to sell lands for assets, begun before the Clerk of the Superior Court of Pasquotank County, and heard on appeal at Spring Term, 1885, before Shipp, Judge.</p> <p>Nathan Overman died in 1877, leaving a last will and testament. Pie appointed his wife, Margaret Overman, his executrix, who died in 1879, and the plaintiff then, during the same year, qualified as administrator cum test, annexo. Nathan Overman left only one child, the defendant A. A. Overman, who intermarried with the plaintiff and has by the plaintiff one child, the infant defendant Malvin Overman.</p> <p>The plaintiff and his wife A. A. Tillett, executed a deed of trust on May the 16th, 1882, to the defendant E. E. Aydlett and Walter F. Pool, who is now dead, trustees for certain real estate as therein described, a part of the lands belonging to said N. Overman’s estate, to secure debts due by them to Fields, Thayor & Co.</p> <p>The following is a copy of the material portions of the will:</p> <p>“I appoint my beloved, wife Margaret, executrix of this, my last will, directing her first to select from my household and kitchen furniture such articles for her own use and comfort as she may think proper and necessary, and sell the residue thereof, if any; and also all my wares, goods and merchandise, and all of my personal property. Collect all my notes and sums of money due me by account or otherwise, and rent out from year to year during her natural life, my store-house and all other of my towu lots and buildings (except the dwelling house and lot where I now live), and from the sales, collections and rents as aforesaid, pay all my debts, and the balance thereof, including rents of my said houses, even unto the death of my wife, I give and bequeath unto my wife Margaret and my daughter Alice A. Overman, jointly and equally, share and share alike.</p> <p>“ I give and bequeath unto my wife Margaret and my daughter Alice’A. Overman, and their heirs forever, jointly and equally, share and share alike, my farm in this county, near Salem, known as the Thomas Harvey farm, including all the lands I own in Bluff Point.</p> <p>“ I leave to the use and enjoyment of my wife during her nat-^ ural life, the lot of land and buildings thereon, where I now live, also such of my household and kitchen furniture as she may find necessary for her convenience and comfort. Should my wife survive my daughter Alice, and also all children born of my daughter, in such event I give to my wife and her heirs all my town property of every class. But should my daughter Alice survive my wife Margaret, and die without leaving issue of her begotten, in such event my daughter shall have power to devise and bequeath after her own death, unto or upon whosoever she will, all my estate not hereinbefore devised in fee. Nevertheless should my daughter have children of her body begotten, any, or any one of which, survives my wife Margaret and my daughter Alice, I give and bequeath to them, or the one, as the case may be, after the death of both my wife and daughter, all my town property of every kind to them, him or her as may be, and their, or his or her heirs forever.”</p> <p>In the complaint of the plaintiff, filed with the clerk, it was alleged in the first article thereof, “That Nathan Overman, late of said county, died therein in the year 1877, having made a last will and testament, by which he devised certain real estate lying in Salem Township in said county to his wife Margaret, and his daughter Alice, the defendant, as tenants in common, and having also devised certain other real estate lying in E. City to the said Alice A., the defendant, for life, with remainder to the child or children of the said Alice.”</p> <p>The defendants, Alice A. Tillett and Malvin Tillett, by his ■guardian, severally answered the complaint, and the defendants Aydlett and Pool, filed a joint answer, and each defendant in said answer admitted the truth of the first article of the complaint.</p> <p>In the fourth article of the complaint it was alleged that the testator died seized of a tract of land containing 350 acres, the Harvey tract and a tract of about 175 acres lying at Bluff Point, both in Salem Township, and which were devised by the testator to his wife Margaret and his daughter Alice A., who, by the death of her mother, is the sole owner of said two tracts of land, and that he was also seized at the time of his death of a storehouse and several other lots, including the dwelling house where he resided in the town of Elizabeth City, and that all these last mentioned premises were devised by the testator to his daughter Alice A. for life, and after her death in remainder to her children. All of these allegations were admitted by the defendants Alice A., Aydlett and Pool, and not denied by the defendant Malvin, answering through his guardian ad litem. A reference was made by consent to state an account. The referee in his report finds, as a conclusion of law, that Alice A. Tillett was a legatee (meaning devisee) for life of the town property of N. Overman deceased. The defendant Aydlett excepted to the finding of the referee that A. A. Tillett was a devisee for life of the town property.</p> <p>The clerk overruled the exception and confirmed the report of the referee declaring she was a tenant for life either by devise or inheritance. The defendant Aydlett excepted and moved the Court to sell the life estate of Alice A. Tillett in the real estate of the town property; first, to pay the indebtedness, on the ground the said Overman died intestate as to the said life-estate. The clerk refused the motion and the defendant excepted.</p> <p>Thereupon the clerk rendered judgment directing the lauds of the testator to be sold in a different order from that contained in the motion of the defendant Aydlett, and from said judgment the defendant Aydlett appealed to the Judge of the Superior Court, who, at Spring Term, 1885, of Pasquotank Superior Court, pronounced judgment in the case overruling the said exceptions of the defendant Aydlett, sustaining the ruling of the clerk, and after confirming his judgment proceeded to order a sale of the lands described in the complaint in different order and on different terms from those prescribed in the judgment of the clerk. Prom which judgment the defendant Aydlett appealed to this court.</p>

Code Practice — Joinder of Causes of Action — Counter-claim— Injunction — Receiver. This was a civil aotiok pending in Camden county, heard upon an application for an injunction, before Shepherd, Judge, at Chambers on 30th May, 1885. From the order of the Judge enjoining the plaintiffs, they appealed.

Contract — Fraud—Intent—Insolvency. This was AN ACTION tried before Avery, Judge, at Spring Term, 1884, of the Superior Court of Bertie County, upon the following complaint and demurrer, viz.: 1. That plaintiff is now, and was at the date hereinafter stated, engaged in the business of a bookseller in the city of Baltimore, Maryland. 2.

Homestead, — Allotment of. This was a CONTROVERSY presented by exceptions to an assignment of homestead, heard before Gudger, Judge, at Fall Term, 1884, of Bertie Superior Court. From the judgment of the court overruling the defendant’s exceptions and confirming the action of the appraisers, the defendant appealed.

Common Carrier — Liability on Bill of Lading — Ageney. Civil ACTION, tried before Gudger, Judge, at Fall Term, 1884, of Edgecombe Superior Court.

Agricultural Liens — Contract—Cropper—Landlord and Tenant. The ACTION was originally begun before a Justice of the Peace, and brought by appeal to the Superior Court of Edge-combe county, where it was tried before Gudger, Judge, at Fall Term, 1884. It was in evidence that one Van Riddick, a cropper on the lands of the defendant, made an agricultural lien to one E. L. Thigpen, in January, 1882; aud in May following said Thigpen made an assignment to J. R. Thigpen as trustee.

Pleading— Contract — Interest— Usury — Penalty. This was a civil ACTION tried before Craves, Judge — a trial by jury having been waived — at Spring Term, 1885, of the Superior Court of Halifax: county.

Excusable Neglect. The summons in this action, which is founded upon a policy . of insurance against fire, issued by the defendant company, whereof a copy is annexed to the complaint, was served upon its agents at Wilson, on the 15th day of June, 1883, returnable and returned to the term of Pitt Superior Court, held on the 3d Monday in September following.

Clerks, Liability ' of for Moneys Deceived — Statute of Limitations — Demand. This was a civil ACTION tried before Shepherd, Judge, at Spring Term, 1885, of Franklin Superior Court. The plaintiff in his complaint alleged that he had been clerk of Superior Court of Franklin county, from 1868 to 1874, in which latter year the defendant succeeded him in the office.

<p>Jurisdiction— Wills— Trusts— Construction.</p> <p>Civil action heard before Gudger, Judge, at Spring Term, 1885, Wilson Superior Court, upon the following “ case agreed: ” This is an action brought by the plaintiffs, claiming as legatees and devisées, under the will of Gray Lodge, against the defendants, who also claim in the same character under said will, for a construction of certain trusts and devises therein contained.</p> <p>Rebecca Lodge, wife of Gray Lodge, to whom certain devises and bequests were made, having died before the constitution of the action, her executor was made a party defendant, and the administrator of Gray Lodge a party plaintiff, after the cpmmencement of the action.</p> <p>Gray Lodge, of the county of Wilson, died in January, 1881, leaving a will dated Nov. 3, 1866, which was duly proven and admitted to probate, that portion of said will which is material to this cause being in these words: “After all my just debts are paid and discharged, the residue of my estate, real and personal, I give, bequeath and dispose of as follows, to-wit: To my beloved wife all the land I now possess, known as the Odom tract of land, lying on Frank’s Branch, adjoining the lands of Benjamin Simpson and Bartley Leans and others, together with all my stock and other property of any kind whatever, as I am now possessed of, during her lifetime, and after her death for my sister Prissy Little, her or her heirs, to share and to share equally with my wife’s heirs.”</p> <p>Rebecca Lodge, wife of Gray Lodge, died without issue in the month of January, 1885, devising by will all her estate of every description to Louisa Shavers, now Louisa Thorne, wife of the-defendant C. R. Thorne.</p> <p>Rebecca Lodge on March 28, 1881, executed this paper writing : “Received of Geo. W. Blount, administrator with the will annexed of Gray Lodge, eight hundred dollars, together with the personal estate of all kinds belonging to the estate, and which under the will was given to me during my life, consisting of 21 head of hogs, 2 horses, 1 milch cow, 2 oxen, and a yearling, poultry, household and kitchen furniture and farming utensils, and which I am to account for.” At the time of executing this receipt, Rebecca Lodge was informed by the administrator that she would have to account for one-half of the personal property mentioned. The eight hundred dollars mentioned in this receipt was a note which Gray Lodge held against Rountree, Barnes & Co., and was turned over to Mrs. Lodge by Blount, administrator, and by her subsequently surrendered to R., B. & Co., she taking their note payable to her in place thereof.</p> <p>Priscilla Little, one of the plaintiffs in this action, is the Prissy Little named in Gray Lodge’s will. Elizabeth Mills, the other plaintiff, is one of the heirs-at-law of Rebecca Lodge, being Rebecca’s niece and Priscilla’s daughter.</p> <p>At the date of Gray Lodge’s will, he was sixty years old and Rebecca fifty.</p> <p>Geo. W. Blount, administrator of Gray Lodge, was duly made a party plaintiff, and Moses Rountree, executor of Rebecca Lodge, was duly make a party defendant in this action.</p> <p>The Court is asked to decide:</p> <p>1. Whether, under the will of Gray Lodge, his wife became entitled to an undivided one-half interest.in the land in fee, or whether she was entitled merely to a life estate therein.</p> <p>2. Whether she was entitled to the use of the personal property named in the will of Gray Lodge during her life, or whether she was the absolute owner thereof.</p> <p>The defendants admit that Priscilla Little is entitled to one-half the laud mentioned in fee.</p> <p>His Honor gave judgment expressing his opinion upon the construction of the several clauses of the will upon which his construction was asked, and the plaintiffs appealed to this Court.</p>

Jail — Nuisance—Injunction—•.Public Officers— Construction of Statute. This was a civil action to enjoin the commissioners of Vance county from erecting a jail, heard before Shepherd, Judge, on Spring Circuit, 1885.

Contract, Special and Implied — Variance—Pleading—Evidence Verdict. This was a civil action tried before Shepherd, Judge, at the Spring Term, 1885, of the Superior Court of VANCE county. The plaintiff’s action is to recover judgment for a debt due his intestate secured by a couveyánce of land, and for a foreclosure by sale thereof.

<p>Petition to Rehear — Evidence—Affidavit.</p> <p>This was a PETITION to rehear the same cause. The facts are stated in the opinion.</p>

Agricultural Advancements — Liens—Registration—Contract. This was an action tried before Clark, Judge, at Fall Term, 1885, of the Superior Court of Johnston county, to enforce a paper writing purporting to be an agricultural lien, which is in these words, to-wit; BentoNSVILLE, Johnston Co., N. C., May 1st, 1884. $225.00.

Infants — Negligence. This was a civil ACTION by the plaintiff, through his mother as guardian ad litem and next friend, against the Richmond & Danville Railroad Company and the North Carolina Railroad Company, for damages for being injured by falling from an engine of the Richmond and Danville Company. There was no evidence offered .or verdict asked against the North Carolina Railroad Company, and a judgment was entered in its favor without objection.

<p>1. The exercise of the discretion conferred upon the Judge who presided at the trial, to grant or refuse a new trial for newly discovered evidence, is not the subject of review on appeal.</p> <p>2. The Supreme Court will not entertain a motion for new trial for newly discovered evidence which is merely cumulative and obtained since the appeal.</p>

Fads found by the Court — Depositions—Judge's Charge — Landlord and Tenant — Notice to quit. The action is to recover damages for an assault, alleged to have been committed on the plaintiff at her residence in Durham, and was tried before Shepherd, Judge, at Spring Term, 1885, of OraNG-e Superior Court.

<p>Constitution — Supreme Court — Rules—Printing Records— Appeal.</p> <p>MotioN to redocket an appeal at this Term.</p> <p>The fads are stated in the opinion.</p>

<p>Processioning — Arbitrators—Award—Costs.</p> <p>This action was heard upon exceptions by Gilmer, Judge, at August Term, 1885, of Person Superior Court.</p> <p>The facts are fully stated in the opinion.</p>

<p>1. Tbe trial oí an action should embrace and determine all the matters at issue, so that a final judgment may be entered and any errors committed may be corrected upon one appeal, “fragmentary appeals” will not be tolerated.</p> <p>2. Therefore, in an action to recover land with damages for its detention where the issue as to the title and right to possession was tried, but the issue as to damages was reserved to be afterwards tried if it should be adjudged that the plaintiG was entitled to recover; It was held, that the Supreme Court would not entertain an appeal for reviewing alleged errors on the trial of the issue submitted.</p>

Deed, Construction of — Creditors—Guardian and Ward — Preference —Subrogation. This was an action tried before Gilmer, Judge, at August Term, 1885, of Guilford Superior Court, involving the construction of a deed in trust to secure creditors, and the application of assets thereunder. A jury trial having been waived, the facts were found by the Court, who gave judgment for the plaintiff, and directed that his demand should be paid in full.

<p>1. While the courts have the discretion, they should not encourage the practice of permitting pleadings to be filed at periods subsequent to the term, when in the regular course of the action they should have been filed, as it is calculated to produce delay, confusion and dissatisfaction.</p> <p>2. In an action for the recovery of real property, the defendant, upon, filing the affidavit and certificate of counsel, prescribed in the proviso in §237 of The Code, is entitled, as a matter of right, to answer, and the court has no discretion in the premises: and whether even a formal order is necessary ; Qucere ?</p> <p>8. Tn such cases the defendant is not relieved from paying costs, or from recovering' them if so adjudged, the statute simply relieving him from giving the undertaking.</p> <p>4. An equitable counter-claim may be asserted in an answer to a complaint containing a purely legal cause of action, and if not denied by reply or demurrer in apt time, the defendant is entitled to judgment for such relief as the facts therein set forth may warrant, though it be uot the relief he demands. The Code, §§244, 249, 268.</p> <p>5. Where one advances money to pay the balance on purchase of land for another, and takes title to himself, he and those who claim under him hold the legal title in trust for the original vendee; and when these facts sufficiently appear from the pleadings or proofs, the Court will administer the appropriate remedy, though it may not be in response to the specific prayer for relief. The Code, §245.</p>

Attorney and Client — Excusable Negligence — Judgment—•Setting Aside — New Trial — Judge, Discretion of — Appeal. This was a motion to set aside a judgment, heard before Gudger, Judge, at Spring term, 1885, of New HaNover Superior Court. The motion being denied, the plaintiffs appealed.

Corporation, Municipal — Taxation—Injunction—Assessment. Held: but taken on scrip, on motion, it is ordered that said minutes be, and they are hereby entered on the record.

<p>Appeal — Record— Transa ipts.</p> <p>This was a civil ACTION tried before Shepherd, Judge, at Fall Term, 1884, of HarNETt Superior Court.</p> <p>There was judgment for the plaintiff, and the defendant appealed.</p>

Injunction — Stock Law — Fences—Assessment, local— Taxation— County, necessary expenses of.

Partition — Jurisdiction of Cleric.. This was a special proceeding for Partition, heard before Gilmer, ./., at Fall Term, 3885, of Granville Superior Court, upon an appeal from the order of the clerk directing a partition of some and a sale of the other lands mentioned in the pleadings.

Evidence — Exception— Witness— Opinion — Surprise. This was a civil ACTION tried before MaeRae, Judge, at Special Term, 1885, of Eichmojstd Superior Court. There was judgment for the defendant, from which the plaintiff appealed.

Deceit — False Representations — Defects, latent and patent— Demurrer — Answer—Warranty—Damages, measure of — Parties. This was a civil action, tried before MoKoy, J., and a jury, at the Spring Term, 1885, of Row AN Superior Court.

Evidence — Lost Paper — Case on Appeal — Contract—Copartnership — New Trial- — -Judge’s Charge — Agency. This was a civil ACTION, tried before MeKoy, Judge, at Spring Term, 1884, of the Superior Court of Guilford county. There was a verdict and judgment thereon for the plaintiff, from which the defendant Call appealed.

Wills, Construction of — Ademption—Legacies. The executor of Reuben Starbuck, filed his petition in the Superior Court before the clerk of Guilford county, for the final settlement of the estate, alleging that on account of the disagreement of the legatees, as to the proper construction of the will, that it was necessary that the Court shall construe the will, and direct his distribution of the fund amongst the legatees.

Discretion of Judge— Vacating Judgment — Negligence.—Attorney and Client. Motiou to set aside a Judgment, heard before Gudger, Judge, at Fall Term, 1885, of PENDER Superior Court. The action was brought to recover possession of iand. In the Superior Court at the appearance term, the plaintiff filed his complaint.

Conditional Sales — Mortgages—Deeds in Trust— Creditors — Purchasers for Value — Registration—Delivery. This was a civil ACTION pending in the Superior Court of ANSON County, and heard by Avery, Judge, at Chambers, on Spring Circuit, 1885, upon a case agreed. • There was judgment- for the defendant, from which the plaintiffs appealed.

Appeal — Judgments, final and interlocutory. This is a civil ACTION in the nature of Claim and Delivery, tried at Chambers, Fall Term, 1885, of Montgomery Superior Court, before Montgomery, Judge.

Betterments — Homestead—Limitations. Inquiry to ascertain the rents and damages claimed by the plaintiff, and the value of the improvements made by the defendant on land recovered in an action of ejectment, tried before Montgomery, Judge, and a jury, at Fall Term, 1885, of RANDOLPH Superior Court.

Malicious Prosecution■ — Pleading—Aider■—Amendment. Civil action, tried at September Term, 1885, of Davidson Superior Court, before Montgomery, Judge.

'Ejectment — Evidence—Declarations— Color of Title — Boundary. Civil ActioN tried before MacRae, Judge, and a jury at Fall Term, 1884, of DavidsoN Superior Court. The facts appear iu the opinion. There was a verdict and judgment in favor of the plaintiffs, and the defendants appealed.

Construction of Deeds — Survivorship—Joint Tenancy — Uses— Habendum. This was a Special PROCEEDING for Partition commenced1 before the clerk of the Superior Court of Robeson county, and’ carried by appeal to the Superior Court, where it was tried before MaoRue, Judge,, at Spring Term, 1885. The plaintiff complained as follows, to-wit: 1.

Partition — Judge’s Charge. Civil Action tried before Montgomery, Judge, and a jury, at September Term, 1885, of Davidson Superior Court. The plaintiff brought this action to recover possession of the land described in the complaint.

Costs — Mortgagor and Mortgagee. This case was heard at Rockingham, Richmond county, on the. 14th day of May, 1884, as of ÁNSON Superior Court, Spring Term, 1884, before Philips, Judge, upon a motion by the defendants to tax the plaintiffs with the costs of the action, and a counter motion by the plaintiffs for a decree of sale and adjudging the costs of the action against the defendants.

<p>Infancy — Ratification—Statute of Limitation.</p> <p>Civil ActiON, tried before Montgomery, Judge, and a jury, at August Term, 1885, of Iredell Superior Court.</p> <p>This action, begun on January 25, 1883, by T. S. Tucker, •administrator de bonis non of Anderson Mitchell, deceased, and, upon his death during the progress of the cause, prosecuted by his successor, the present plaintiff’, B. F. Long, is founded upon a promissory note, executed by the defendants, John F. McKee the principal, and the others as sureties, in the form following:</p> <p>$1,500.00. One day after date, we promise to pay Andersou Mitchell fifteen hundred dollars, for borrowed money, bearing eight per cent, interest.</p> <p>Joi-iN F. McKee,</p> <p>J. L. McKee,</p> <p>J. S. Miller,</p> <p>S. A. Sharpe.</p> <p>Jan. 4th, 1876.</p> <p>Upon the note is an endorsement in the handwriting of the former administrator, Tucker, acknowledging a part payment of one hundred and five dollars, made on May 12th, 1881, the legal effect of which, in connection with the attending facts, as a payment thus appropriated, furnishes the main subject -matter of controversy in the suit.</p> <p>The complaint, in asserting a second cause of action, alleges that the principal debtor, John F., had formed a co-partnership with James L. Col vert, under the firm name of Colvert & McKee, for conducting and prosecuting the business of buying and manufacturing tobacco, which was dissolved by the death of the senior member in February or March, 1877, and, thereupon, the joint, effects-and joint liabilities devolved upon the survivor; that on May 21 and August 31 of the same year, the said John F. made an assignment to the defendants Miller and Sharpe (the other surety being his father), for their indemnity as such sureties, of a one-half interest in the machinery and implements and a large quantity of tobacco, manufactured and in leaf, the property of the firm; that the assignees hold some of the goods thus conveyed, and have sold other portions of them, and have the proceeds in their hands, for which they are responsible, and this fund the plaintiff claims a right to subject to the payment of the debt.</p> <p>The defendants McKee, in their answer, set up the statute of limitation as a bar to the recovery, in addition to which, the said John E. relies upon the defence of his infancy at the time of •executing the note.</p> <p>The other defendants also seek to protect themselves under the statutory limitation against personal liability, and in their answer admit their possession of the trust fund provided in the deeds, and their willingness and intention to apply whatever portion thereof the plaintiff may be entitled to, but they say the fund is claimed by partnership creditors who have instituted an action and are prosecuting it, to have the same applied to their demands, insisting that only what remains after satisfying the liabilities of the firm, can be appropriated to the debt in suit as a means of exonerating the assignees from their surety liabilities. The cause accordingly came on for trial upon the following issues, to-wit:</p> <p>1. Was the defendant John F. McKee an infant under 21 years of age at the time of the execution of the note?</p> <p>2. Has the. defendant John F. McKee ratified the note since becoming of age?</p> <p>3. Is the cause of action barred by the statute of limitation as to any of the defendants?</p> <p>4. How much is plaintiff entitled to recover on his note?</p> <p>The execution of the note was admitted, and the same was read in evidence. The plaintiff also put in evidence a credit of $105.00 endorsed on said note in the handwriting of T. S. Tucker, aforesaid, and proved that it was in his handwriting, and that he was, at the date of said endorsement, to-wit: May 12th, 1881, the administrator of said A. Mitchell, aud.it was in evidence that this payment, if made at all, was made by the defendant J. S. Miller, without the knowledge of any of the other defendants.</p> <p>Aik! as evidence for the plaintiff on the second issue as to the ratification by John F. McKee after his majority, and on the' third issue of the statute of limitation as against the defendants-John I. McKee and S. A. Sharpe, the plaintiff put in evidence two mortgages made by the said defendant McKee to Sharpened Miller, defendants, one dated May 21st, 1877, the other August 31st, 1877, conveying a large amount of valuable property to indemnify and secure them as his sureties on said note,, with power to sell the property at public or private sale, and apply the proceeds to the payment of the Mitchell note, and also a written note or order of said John F. McKee, dated November 22nd, 1877, and addressed to said Sharpe and Miller, to sell said property, publicly or privately, and apply the proceeds to-the payment of said note.</p> <p>It was also in evidence by defendant Sharpe, that he and said Miller had sold the said property and had the proceeds-thereof in hand, subject to the order of the Court, since 1877.</p> <p>It was in evidence that said John F. McKee was born May 4th, 1856, and became of age May 4th, 1877.</p> <p>The plaintiff contended that the defendant John F. McKee,, having made said mortgages after he was 21 years old, and having also given the note or order of November 22nd, 1877, to-Sharpe and Miller, these were acts of ratification to go to the jury on the 2nd issue. His Honor charged the jury, that there-was no evidence of the ratification, and directed the jury to respond to that issue, “No.” Plaintiff excepted.</p> <p>The plaintiff contended as to the 3rd issue upon the statute of limitation, that said mortgages and order being made, executed and given by said John F. McKee, and accepted by Miller and Sharpe from him, and their having said property or its proceeds,, ever since 1877, in hand as trustees, they were precluded in equity from setting up the statute of limitation at all, as unjust and inequitable, or that the statute would not run in their favor after the date of said mortgages.</p> <p>His Honor declined so to hold, and instructed the jury that there was nothing proven to prevent the statute of limitation from running in favor of McKee and Sharpe, and that there was no evidence to rebut the statute of limitation as to them, and his Honor instructed the jury to find that the statute of limitation barred the cause of action as to John F. McKee and S. A. Sharpe, under the 3rd issue.</p> <p>The plaintiff excepted to the above rulings and instructions of his Honor.</p> <p>The jury found the issues as follows: On 1st issue, by consent —“Yes.”</p> <p>On 2nd issue, under the instructions of the Court — “No.”</p> <p>On 3rd issue, under the instructions of the Court as to John F. McKee and S. A. Sharpe. (Ans.) “To all except J. S. Miller” [under other evidence and instructions].</p> <p>On 4th issue, “$2,547.00” (which applies only to Miller).</p> <p>There was judgment in favor of the plaintiff against Miller.</p> <p>Plaintiff moved for a new trial as to said Joliu F. McKee and S. A. Sharpe. Motion overruled. Judgment for said defendants McKee and Sharpe. Plaintiff appealed to the Supreme Court from this judgment.</p>

Evidence — Application of Payment — Statute of Limitation. Civil ActioN tried before Montgomery, Judge, and a jury, at August Term, 1885, of Iredell Superior Court. There was a judgment for the plaintiff, and the defendant ap-appealed.

Petition to Rehear — Agent—Evidence—Newly discovered Evidence— Witness. This was a PETITION to Reheab, by the defendant, filed at the October Term, 1885, of the Supreme Court. The case is reported in 92 N. C., 417. The facts appear in the opinion.

Bond — Negotiable Instrument — Endorsement. This was a civil ACTION tried on appeal from a Justice of the Peace, before Shepherd, Judge, and a jury, at Spring Term, 1885, of Alamance Superior Court. The action was brought by the plaintiffs as holders of the following instruments, three in number: “GREENSBORO, N. C., Aug. 24th, 1882.

Appeal Jiond — Merger—Appeal. This was a civil action tried before Gilmer, Judge, at the Fall Term, 1885, of AlamaNCE Superior Court, where a judgment was rendered in behalf of the defendant, from which the plaintiffs appealed to this Court. At the last February Term of this Court, there was a motion made’by the defendant to dismiss the appeal on the ground the undertaking on the appeal was not justified as required by the statute.

<p>1. The declarations oí a deceased person in relation to the location oí the line dividing his lands from those of anothei, are admissible on the trial of an issue between subsequent owners or claimants of such adjacent lands, involving their boundaries.</p> <p>3. The new system of pleading in its whole structure and scope, looks to a trial of causes upon their merits, and discountenances objections whiqh may be removed.</p> <p>3. Objection to a defective statement oí a cause of action must be taken advantage oí by demurrer or will be deemed to be waived, while a statement of a defective cause oí action may be taken advantage of at any time by motion to dismiss.</p>

Claims against the State — Jurisdiction of the Supreme Court. This was a Claim against the State, filed in the Supreme Court ou March 7th, 1885, in accordance with the provisions of Art. IV, §9 of the Constitution, and heard at October Term, 1885.

Abandonment — Tenants in Common — Taxation—Evidence. This was a civil ACTION tried at Spring Term, 1885, of Wilkes Superior Court, before MeKoy, Judge,, and a jury. The plaintiff asks to enforce the specific performance of an alleged contract to convey the lands described in the complaint.

Appeal — Docketing and Dismissing. This’was a MOTION by the plaintiff to docket and dismiss an appeal, heard,at October Term, 1885, of the Supreme Court. The facts appear in the opinion.

Statute of Limitation — Creditor’s Bill. Civil ActioN, in the nature of a creditor's bill, heard before MaaRae, Judge, at Spring Term, 1885, of Iredell Superior Court.

<p>Homestead — Pleading.</p> <p>Civil ACTION tried before MeKoy, Judge, and a jury, at Fall Term, 1884, of Rutherford Superior Court.</p> <p>The complaint alleges that the plaintiff, administrator cum tes-tamento annexo of J. P. Mooney deceased, sold a tract of land described, under the will of his testator, as he had authority to do; that the defendant Fite became the purchaser thereof, and he and the other defendants, as his sureties, executed to the plaintiff their single bond for $2,252.40, to be due, with interest, twelve months next after the 6th day of February, 1882, for part of the “purchase money not paid at the time of the sale;” that the bond is past due and has not been paid, except a part thereof; that the balance due is about $1,500. A copy of the bond is set forth in the complaint. The plaintiff demands judgment for the balance due on the bond, and that the laud be sold, if need be, to satisfy the judgment.</p> <p>The defendant answered, admitting the execution of the bond, but averring that the plaintiff could not make a good title for parts of the land indicated in the answer.</p> <p>On the trial, two issues were submitted to the jury, which involved the ownership of two parcels of the land. One of these was found for the plaintiff, the other for the defendant.</p> <p>Thereupon, the defendant, before judgment was rendered, moved in arrest of the judgment, upon the-grounds that the complaint did ilot state facts sufficient to constitute a cause of action, in this: That he did not allege in his complaint that he was able to make a good title to the land for which the note was given.</p> <p>“ 2. That he had not tendered to defendant a deed to the land before the commencement of this action.”</p> <p>The Court overruled this motion, and the defendants exceq>ted; the Court gave judgment for the plaintiff, and the defendants appealed*.</p>

Civil AgtioN tried before MoKoy, Judge, and a jury at Pall Term, 1884, of Rutherford Superior Court. The facts are the same as in the preceding case. There was a verdict and judgment for the plaintiff, and the defendants appealed.

<p>Witness — Privilege, of Counsel.</p> <p>Civil Action to recover land, tried before Avery, Judge, and a jury at Eall Term, 1885, of McDowell Superior Court.</p> <p>The plaintiff offered evidence tending to show that he had title to the two tracts of land in controversy, which were not adjacent, but lying not. far apart. But it did not appear that he had had possession of either since 1865.</p> <p>The defendant produced in evidence a grant from the State, covering the land in dispute, and offered evidence tending to show that he had been in the actual possession under his grant, of parts of both the tracts claimed by the plaintiff for more than seven years prior to the commencement of the action in 1882.</p> <p>One Burgin, a witness for the plaintiff, testified among other matters, that the defendant did not put his fence across the line of one. of the tracts until three or four years before the commencement of the action, and after one argument had been made for the plaintiff and one for the defendant, the counsel for the defendant announced to the Court that the witness Burgin desired to correct his testimony in reference to the possesion. He had not been examined as to any other matter, except the length of the defendants’ possession of one of the tracts;</p> <p>The counsel for the plaintiff objected to allowing the corree- ' tion to be made at that time, and gave as a reason that it might involve some change in the testimony for the plaintiff; that plaintiff might have met the matter proposed now to be shown by the witness, on the trial, with the testimony of witnesses dismissed without examination, and that plaintiff would not have introduced Burgin except upon information that he would testify as he had done.</p> <p>The Judge then said, that Burgin would not be allowed to make any correction now; that if the correction was very material or important, it might be heard by the Court on a motion for new trial, and counsel might understand that now.</p> <p>After the refusal to allow the witness to correct his testimony, an argument was made to the Court and jury by one of the counsel for the defendant, and the argument was concluded by counsel for plaintiff.</p> <p>In addressing the jury, counsel for the defendants said : “Gentlemen of the jury, the counsel on the other side refused to allow Mr. Burgin to correct his testimony” — and was evidently proceeding to. comment on the fact, when counsel for plaintiff objected.</p> <p>The Court directed counsel to desist from any reference to the motion to allow Burgin to correct his testimony, and told the jury then that they need not be influenced in rendering their verdict by any remark made by counsel in reference to the matter, or by the fact that Burgin had not been allowed to make any correction. Counsel made no further remarks on that subject. Subsequently, in the charge to the jury, the Court told them that they would find the facts only from the testimony in the case.</p> <p>There was no exception asked or entered for plaintiff to the charge of the Court, or to any ruling of the Court in the progress of the trial.</p> <p>After verdict, counsel for plaintiff moved the Court for a new trial: 1st, because the remark of the Court in presence of the jury, that if the correction was very material or important, it might be heard by the Court on motion for new trial, &c.; 2nd, on the ground that the comment of counsel on the refusal of plaintiff to agree that Alney Burgin should correct his testimony was a gross abuse of privilege.</p> <p>A motion for new trial on the grounds mentioned was refused. Plaintiff' excepted, and appealed.</p>

Appeal. This was an appeal from an order made in the cause by Gilmer, Judge, at Spring Term, 1885, of Haywood Superior Court. At Spring Term, 1882, of the Superior Court of the county of Haywood, the Court made an order in the action, setting aside the report of a referee, and directing a survey with instructions as to how the same should be made.

Parties — Irregular Judgment — Notiee—Judicial Sales. This was a Motion in the cause to set aside a judgmeut for irregularity heard by MaeRae, Judge, at February Special Term, 1885, of RICHMOND Superior Court.

Partnership — Negligence— Torts— Variance. This was a civil ACTION, tried before Avery, Judge, and a jury, at Fall Term, 1885, of McDowell Superior Court.

Issues — •Statute of Limitation — Trusts—■Champerty—Par De-lictum. Civil ActioN tried before MacBae, Judge, and a jury, at Fall Term, 1884, of Davie Superior Court.

Parties — Administrators—Settlement of Estates. This was a special PROCEEDING, heard, on appeal from an order made by the Clerk, by Montgomery, Judge, at August Term, 1885, of Iredell Superior Court.

Joint and Several Contracts — Statute of Limitation. Civil Action, tiled before MaaRae, Judge, and a jury at Spriug Term, 1885, of Catawba Superior Court. The plaintiff commenced his action on February 10, 1880, by the issue of process against the three defendants constituting the partnership firm of Claywell, Powell & Co., for the recovery of the amount due on a promissory note given on September 30, 1878.

Deeds — Privy Examination of Femes Covert — Registration. Civil Action for the recovery of land, tried before Gudger, Judge, and a jury, at Eall Term, 1885, of Madison Superior Court.

Negligence — Judge’s Charge. Civil Action, tried before Gudger, Judge, and a jury, at Fall Term, 1885, of Haywood Superior Court. The action was brought to recover damages for injuries suffered by the plaintiff by the alleged negligent management of the defendant’s cars.

<p>1. Under the Code system, an execution which is issued after the death of the judgment debtor, although it bears teste before his death, confers no authority on the sheriff to sell, and a sale thereunder is void; but before the Code of Civil Procedure was adopted, a sale under such an execution would have been valid.</p> <p>2. Liens on real property are now governed by the docketing of the judgment, and not by the issuing of process to enforce it.</p> <p>3. When an execution is issued on an undocketed judgment, or one which has lost its lien on real estate by the lapse of time, it is a lien on both real and personal property from its levy.</p> <p>4. Where a judgment debtor dies, the creditor, cannot enforce the judgment by execution, but must collect his debt in the regular course of the administra! tion of the estate.</p> <p>5. The provision in the Code of Civil Procedure, furnishing a remedy for enfolding the lien in ease the administrator unreasonably delays settling the estate, has not been brought forward in The Code.</p>

Maintenance — Contract—Support. This was a civil action tried before Montgomery, Judge', at July Special Term, 1884, of the Superior Court of RANDOLPH County.

<p>1. The Code gives to the Superior Courts the most ample power to allow amendments, and where an affidavit upon which a warrant o£ attachment was issued was defective, it may he amended.</p> <p>2. A discontinuance results from the voluntary act of the plaintiff in not regularly issuing the successive connecting processes necessary.</p> <p>3. Where a summons which is to he personally served, is ordered to he issued by the Court, it is not the duty of the Clerk to issue it until it is demanded by the plaintiff; but when service is ordered to he made by publication, after the expenses are paid by the plaint-ill, it is the duty of the Clerk to obey the order, and make the publication.</p> <p>4. So, where an order of publication was made, but by an oversight in the Clerk it was not done, and the defendant moved to dismiss the action on the ground that there was a discontinuance; It was held, that the Judge had the power to allow the publication to be made, returnable to a future term of the Court.</p>

Deeds — Execution of, by Femes Covert. Civil Action, tried before Gilmer, Judge, and a jury, at Spring Term, 1885, of the Superior Court of Haywood county. In deducing title to the land in controversy in the action, the plaintiffs exhibited in evidence a deed for the premises executed on September 8th, 1875, to their immediate ancestor, E. R. Ferguson, by Laura L. Chambers and J. A. Dotson and wife, L. C. Dotson.

Certiorari — Appeal. APPLICATION by the defendants for a Certiorari in lien of an appeal, heard at October Term, 1885, of the Supreme Court!, The petitioners appealed from a judgment rendered against them in the Superior Court of the county of Catawba in the action of J. Turner, et al., v. A. M. Powell, et al., pending therein, to the last Spring Term of this Court.

Administrator — Devastavit—Reference—Evidence—Partnership — •Slaves, Emancipation of — Refunding Bonds. Civil ACTION, tried before MaoRae, Judge, on exceptions to the report of a referee, at December Special Term, 1883, of Moore Superior Court. The facts are fully stated in the opinion.

<p>National Banks — Jurisdiction— Usury— Waiver— Variance.</p> <p>Civil Action tried before Philips, Judge, and a jury, at Spring Term, 1885, 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>

<p>1. where a mortgage or deed oí trust is registered upon a proper prohate, it is-notice to all the world, oí the existence oí the mortgage, of its contents, and. oí the nature and extent of the charge created by it.</p> <p>2. When a party is put upon inquiry, he is presumed to have notice of every fact and circumstance which a proper examination would enable him to find out.</p> <p>8. Where a mortgage was executed by a debtor to indemnify his surety, but who-had not paid the debt; Held, to be notice to a purchaser after its registration, oí the right in equity of the creditor to subject the "laud to the payment of his debt.</p> <p>4. when a debtor executes a mortgage to his surety to indemnify him, the creditor has an equitable claim to the security, and upon the insolvency of both principal and surety, he may subject the mortgaged landtothe payment of his debt, and this is so, not only when the mortgage stipulates that the mortgagor shall pay the debt-, but also when it merely provides that the surety shall be saved harmless.</p> <p>5. This right of the creditor is not lost-, although the personal remedy against the surety is barred by the statute; or if the surety has never been damnified and is iusolveut.</p> <p>6. The debt due the creditor supplies the consideration to support the equity.</p> <p>7. In such ease, as soon as the deed of indemnity is executed, the equitable right of the creditor attaches, and it is not in the power of the surety to put it beyond his reach.</p>

Practice■ — Amendment. Civil Action, heard before Gudger, Judge, at Chambers in Franklin, on October 10th, 1885.

<p>Stock Law — Injunction—Discretionary Power.</p> <p>This was the plaintiff’s appeal in the preceding action.</p>

<p>Execution Sale — Deeds, Probate of — Wills.</p> <p>Civil. Action for the recovery of land, tried before MaeRae, Judge, at August Special Term, 1884, of UNION Superior Court.</p> <p>The facts fully appear in the opinion.</p> <p>There was a judgment for the defendants, and the plaintiffs appealed.</p>

<p>Judgment lien — Execution.</p> <p>Civil ActioN for the recovery of land, tried before Gilmer, Judge, and a jury, at Spring Term, 1884, of the Superior Court of Wilkes County.</p> <p>The facts are stated in the opinion. The plaintiff appealed.</p>

Execution — Injunction— Contingent Remainder. Civil Action tried before Avery, Judge, at August- Term, 1885, of the Superior Court of Burke County. This was an application based upon the affidavits of the defendants, to enjoin the sheriff of Burke county from selliug the interest of the defendants in a certain tract of land in the county of Burke, and described in their affidavit-.

<p>Appeal — Printing Record— Undertaking on Appeal — Irregular Judgments — Default final.</p> <p>MotxoN to set aside a judgment, for irregularity, heard by Graves, Judge, at July Special Term, 1885, of Haywood Superior Court.</p> <p>The summons having been served upon the defendants, the plaintiffs at the return term filed their complaint, not verified, in which they alleged that they had “sold and delivered to said defendants merchandise, boots and shoes, agreeable to bill rendered, to the amount of $499.45, which said merchandise, boots and shoes, were reasonably worth ” the sum mentioned, and which the defendants agreed to pay. The complaint contained other allegations not necessary to be mentioned here. •</p> <p>The defendants did not enter an appearance, and no answer or other pleading was filed by them.</p> <p>At that term, the Court, upon the summons and complaint, gave judgment agaiust the defendants and in favor of the plaintiffs for the alleged debt, interest and costs. The judgment, recited as follows: “This action having beeu brought to a trial before the Court upon the summons and complaint on file, the defendants having failed to answer said complaint, and it appearing to the Court from the evidence filed that the defendants are indebted to the plaintiffs, according to account rendered, the sum,” &c. What the evidence before the Court was, does not appear.</p> <p>At a special term of the Court held next after the return term, the defendant J. R. .Long moved to set aside the judgment mentioned, upon the ground that it was irregular, in that it was made final, when it ought to have been interlocutory only.</p> <p>The Court denied the motion, gave judgment accordingly, and the mover, having excepted, appealed.</p> <p>In this Court, the appellees moved before the appeal was called in its order, to dismiss?, the same, first, because the record had not /teeu printed as required', by the rule; and secondly, because the surety to the undertaking upon appeal failed to state in his affidavit that he was “worth double the amount of said undertaking over and above his liabilities, and his homestead and exemptions allowed by law.” When the appeal was called in its order for argument, it appeared that the record had been printed.</p>

<p>Execution of power by feme covert — Consideration— Presumption.</p> <p>This was a CIVIL, ACTION for the foreclosure of a mortgage, tried before Shepherd, Judge, and a jury, at Spring Term, 1885, of Vance Superior Court. The action was commenced on the 2nd day of April, 1881, by the plaintiff against the defendant M. Hawkirs and his wife, Truxilla Hawkins, for the foreclosure of a mortgage of a lot of land in the town of Henderson, heard at Spring Term, 1884, of said Court. J. T. MeCraw who claimed the land as heir of Betty MeCraw, was made a party defendant.</p> <p>It was admitted that- the defendant MeCraw was the sole issue and heir-at-law of Bettie MeCraw, wife of F. M. MeCraw, that he arrived at the age of twenty-one years on the 25th day of August, 1881, and that his mother died on the 14th day of October, 1862. The plaintiff offered in evidence a deed made by her to Truxilla Hawkins, the feme defendant, conveying the land in controversy, dated the 1st day of January, 1879, and a mortgage from said Truxilla Hawkins and her husband, M. Hawkins made to her, to secure the purchase money of said land, bearing date February 25th, 1879. Also, the following deeds in support of her title:</p> <p>First, a deed from Francis M. MeCraw to W. H. Hughes, dated 22nd March, 1859, conveying the land in dispute, and a considerable amount of personal property, in trust, to pay certain debts specified, only amounting to something over three hundred dolíais, and all other debts he might owe, and the residue to be held by him in trust for the sole, separate and exclusive benefit of his wife, Bettie MeCraw, for and during the term of her life, and to such other uses as she by will or deed might appoint, aud if she should die without having made any appointment., then over, &c.</p> <p>Secondly, a deed from Bettie MeCraw to her husband, Francis M. MeCraw, dated 22nd day of March, 1859, for the-land in dispute, after her life, in exercise of the power in the deed of F. M. MeCraw to W. H. Hughes</p> <p>Thirdly, a deed for the land from F. M. MeCraw to W. H. Hughes, dated 3rd day of August, 1863.</p> <p>Fourthly, a deed from W. H. Hughes to Edith Holliday,, for the use of the plaintiff, bearing date 10th day of February, 1864.</p> <p>It was admitted that the conveyance by Hughes to E. Holliday, in trust for the plaintiff' was made for a valuable consideration, and that she had no actual notice of the. trust or any breach thereof on the part of the trustee Hughes, aud that she had no-actual notice that he was trustee; that she entered into possession of said premises at the time of the execution of the deed to E. .Holliday, and that she and those who claim under her, including the defendants, have ever since been in the continuous-possession of the same under known and visible boundaries, claiming the same adversely to all persons.</p> <p>The defendant J. T. MeCraw denied the execution of the deed from Betty MeCraw to her husband, and insisted that, if executed, its execution was procured by fraud and undue influence of F. M. MeCraw, and that it was in law void. The following issues were submitted to the jury :</p> <p>1st. Did Betty MeCraw execute the alleged deed to F. M. MeCraw ?</p> <p>2nd. If she executed the same, was it done by the fraudulent and undue influence of her husband, F. M. MeCraw ?</p> <p>The Court was asked by the defendant MeCraw to charge the jury, that the deed was presumed in law to be void, unless it was shown to be made upon a fair consideration ; that it devolved upon the plaintiff to show this by a predonderance of testimony, and that if she failed to do so, the second issue should be found in the affirmative.</p> <p>The Court declined to so charge, and the defendant McCraw excepted.</p> <p>The jury found the first issue in the affirmative and the second in the negative.</p> <p>It was agreed by the counsel that the Court should try any other issue of fact raised by the pleadings, and after the finding of the jury, the defendant offered a certified copy of the records of Granville County Court, showing that by the decree of said Court, in a petition for the sale of slaves, F. M. McCraw was entitled, in right of his wife, to the one-third of $1,910.00, which was assigned in his deed of trust to W. H. Hughes for the payment of his debts, &c. This evidence was objected to by the plaintiff, and the Court, upon the facts admitted and the issues found by the jury, held the plaintiff’s right to recover could not be affected by said evidence and refused to admit it, and the defendant excepted.</p> <p>Judgment for plaintiff.</p> <p>Motion for new trial. Motion refused, and defendant Mc-Craw appealed to Supreme Court.</p>

Penalty — License for Marriage of Females under eighteen. Tin’s was a civil action, begun in a Court of a Justice of the Peace, and tried on appeal at Fall Term, 1885, of Catawba Superior Court, before his Honor, Shipp, Judge, and a jury.

Practice — Nonsuit. This was a civil ACTION, tried before MacRae, Judge,, at the .'Spring Term, 1884, of Superior Court for UNION county. The case is sufficiently stated in the opinion of the Court.

Bettermeiits — Notice. This was a civil ACTION tried at the Special Term held in February, 1885, of the Superior Court of CRAVEN county, before Shipp, Judge. There was judgment for the plaintiffs, from which the defendant appealed. The facts are stated in the opinion of the Court.

<p>1. Where, in a suit instituted in the late Court oí Equity, and transferred to the Superior Court docket under the provisions oí the Code of Civil Procedure, the parties agreed that the Judge should find the facts, and that he should examine witnesses orally, and only the substance of the oral evidence was sent up with the record ; It was held, that the right to have the findings of fact reviewed by the Supreme Court was waived.</p> <p>2. Where parties agree to a particular mode of trial, they are bound by it.</p> <p>8. The Supreme Court can only review and pass on issues of fact in certain cases, and then only when the evidence on which the finding in the Court below was based, is set out fully and at large in the record.</p> <p>4. A party cannot lose the right to appeal by an agreement that the judgment of the Court below shall be final, and that neither party will appeal therefrom.</p>

Appeal — Special Proceedings. Special Proceeding, heard on. an agreed statement of the facts by Philips, Judge, at Spring Term, 1885, of the Superior Court of Rutherford county. This was a special proceeding brought by the plaintiff as widow of W. W. Taylor, against the defendant as his executor, for a year’s allowance out of his personal estate.

Divorce — Alimony—Dower—Curtesy. Special PROCEEDING, heard on appeal from an order of the clerk, by Philips, Judge, at Spring Term, 1885, of the Superior ■Court of Rutherford county.

Pleading — Variance—Evidence—Agent. Civil ActioN, tried before Philips, Judge, and a jury at Spring Term, 1885, of Mecklenburg Superior Court. The facts fully appear in the opinion. The plaintiff, in submission to the rulings of his Honor, took a non-suit and appealed.

Constitutional Law — Taxes—Roads. Motion for an INJUNCTION, heard by Shipp, Judge, at Chambers in Charlotte, on December 4, 1885. The statute (Acts 1885, ch. 134), entitled “An act relating to roads and highways,” relates to and embraces only the county of Mecklenburg.

Justice of the Peace — Power to net aside judgments. Motion to set aside a judgment, heard on appeal from a justice of the peace, by MacRae, Judge, at January Term, 1885, of Robeson Superior Court. On the 19th day of October, 1876, the plaintiff brought its action before a justice of the peace, in the county of Robeson, against the defendant, toM'ecover the sum of $50 due by note. The summons was made returnable on the 26th day of the same month.

<p>1. Technical rules oí construction and decided eases serve only as aids rather than as binding rules in the construction of wills. The construction of the will depends largely upon the circumstances of the testator as they appear from the will itself.</p> <p>2. The meaning attributed by the testator to words and phrases in a will, when it appears, must prevail, however different this may be from the meaning ordinarily applied to such words and phrases in other wills.</p> <p>3. Where a will provided “ that A. G. should have her support out of the land,”" It was held, under the circumstances of the will, not to be a charge on the corpus of the land, but only the right to receive a support out of the rents and profits.</p>

<p>Consent Decree — Power to alter.</p> <p>Civil ActioN, heard before McRae, Judge, at February Special Term, 1885, of the Superior Court of RICHMOND county.</p> <p>In a special proceeding prosecuted by the appellant and other legatees under the will of John Fairley, deceased, against the present plaintiff, to whom, on the refusal of the executor therein .appointed to accept the trust, letters of administration with the will annexed had been issued, for an account and settlement of the testator’s estate, before the Clerk as Probate Judge, and while there pending, the parties agreed upon a compromise, and •caused a consent decree to be entered in the form following:</p> <p>Henry Fairley, Nancy Fairley,' Margaret Arn McEachern, William Gilchrist, Angus Gilchrist, Sally McCormac and E. L. McCormao, vs. E. W. KEROHNER, Administrator of John Fairley, deceased.</p> <p>Superior Court of Richmond County.</p> <p>This cause coming on to he heard, and all of the parties being present in person and by counsel, by consent of all parties it is •ordered, adjudged and decreed, that the plaintiffs recover of the ■defendant the sum of seven hundred dollars and the costs of this .proceeding, in full and complete satisfaction, compromise and discharge of all claims and demands, actions and causes of action, which the said plaintiffs have or may have, against the said defendant by reason of his administration of the estate of said John Fairley, and in particular of all matters of account in dispute in this proceeding.</p> <p>D. Stewart,</p> <p> G. S. 0. and Judge of Probate. </p> <p>Joi-iN D. Shaw,</p> <p>R. T. BeNNEtt,</p> <p> Attorneys for Plaintiffs. </p> <p>Steele & Walker,</p> <p>JuNius Davis,</p> <p>F. D. Poisson,</p> <p> Attorneys for Defendant. </p> <p>At the same time, certain other papers were prepared and executed, marked in the record as exhibits B, C and D, except that some of the signatures were affixed to exhibit B a few weeks afterwards, which are as follows:</p> <p>EXHIBIT “B.”</p> <p>RICHMOND COUNTY, Probate Court. j- Before D. Stewart.</p> <p>Henry Fairley, NaNcy Fairley'' and others, vs. V Francis W. Kerchker, Adm’r of Estate of JohN Fairley.</p> <p>Received of Francis W. Kerchner seven hundred dollars, iu full settlement and compromise of all matters of dispute in the above entitled cause, in pursuance of the decree therein rendered at this date.</p> <p>August 8th, 1877. Jno. D. Shaw,</p> <p>R. T. BeNNEtt,</p> <p> Attorneys for Plaintiff. </p> <p>EXHIBIT “C.”</p> <p>STATE OP NORTH CAROLINA RichmoND -County. }</p> <p>We, Henry Fairley, Nancy Fairley, Wm. Gilchrist, Angus Gilchrist, E. L. McCormac and wife Sallie E. McCormac, devisees and legatees under John Fairley’s will, hereby release and forever discharge Francis W. Kerchner, administrator with the will annexed of John Fairley, deceased, from all liability to us on account of his administration of said estate, and from all claims and demands we may have against him on said account, being satisfied after a full and complete examination of the vouchers and accounts of said administrator.</p> <p>Witness, our hand and seals the 8th day of August, 1877.</p> <p>Henry Fairley, (Seal).</p> <p>Wm. Gilchrist, (Seal).</p> <p>Sallie E. McCormac, (Seal). E. L. McCormac, (Seal).</p> <p>Ano-us Gilchrist, (Seal).</p> <p>Nancy Fairley, (Seal).</p> <p>EXHIBIT “D</p> <p>STATE OF NORTH CAROLINA, Richmond County.</p> <p>I, Francis W. Kerchner, administrator of John Fairley, and • also in my individual capacity, hereby release and forever discharge Henry Fairley, Nancy Fairley, Wm. Gilchrist, E. L.. McCormac and his wife Sallie E. McCormac and Margaret Ana McEachern, all of whom are legatees and devisees of said John' Fairley, under his will, from all claims, demands, actions, or causes of action I may have against them on account of any sums, due me from the estate of said Fairley, or against them in any other manner, except as far as there may exist in my behalf, any right, claim or demand against them or any of them, on account of certain debts secured by mortgage on the Laurel Hill place, and as to those debts so secured, I hereby covenant that I will not sue any of the said parties upon the same. It being understood that I reserve the right to subject the lands conveyed by the mortgage made to secure the said debts, to the payment of said debts, and to enforce no other remedies against the said parties or any other property they may have received from the estate of John Fairley.</p> <p>Witness my hand and seal, this the 8th day of August, 1877.</p> <p>F. W. Kerohner, (Seal).</p> <p>Witness: Jko. D. Shaw.</p> <p>The complaint alleges that the agreement of compromise embraces all the matters contained in the three last mentioned exhibits, and that the decree does not fully express the intent of the parties, in that, by inadvertence and mistake, it omits to refer to those papers, and incorporate them in it, nor were these papers filed with and made part of the record. The plaintiff therefore demands judgment for a reformation and correction of the proceedings, records and decree in the said special proceedings above referred to, so that they may conform to the intention and agreement of the parties, and that “ the papers containing the said agreement may be filed as part of the record,” and the decree made to refer thereto; and for general relief.</p> <p>The answer of the defendant Margaret A. McEachern, who alone appeals from the ruling in the Court below, denies her delegation of authority to counsel who represented the other plaintiffs in the cause, to enter into auy such agreement to bind her, and that she only gave her consent to have her name inserted among them, because she was advised that otherwise she would be brought into the cause as a defendant: that she knew nothing of the action of the Court, being absent until some months afterwards, when she was informed of the decree and matters of record connected therewith, and of the seven hundred •dollar receipt: nor was she aware that the plaintiff claimed that there were other or farther parts of the agreement, until the plaintiff moved in May, 1881, before the clerk, to be allowed to file said papers and make them by reference, part of the decree; that as soon as she learned the contents of the plaintiff’s release, (exhibit D), she refused to recognize or take any benefit under it; that this paper was never delivered to her nor to any one authorized to act on her behalf; and that at the making of said compromise, the plaintiff and his counsel were advised by Messrs. Shaw and Bennett, that they would not say that respondent would execute the release, (exhibit C), or surrender any of her rights against the plaintiff.</p> <p>The respondent also sets up the defence, that the cause of action did not accrue within three years next before the beginning of the action, and that it is barred by the statute of limitations.</p> <p>The parties waived a jury trial of the controverted matters, and the cause was tried before the Judge, at the Special Term of Richmond Superior Court, held in February, 1881, whose findings, so far as pertinent to the errors assigned in the appeal, are •as follows:</p> <p>“The three [tapers, B, C and D, were prepared as part of the compromise arrangement, with the decree, with the assent of two of the plaintiffs, Henry Fairley and William Gilchrist, and the plaintiff in the present action, the defendant in that. The name of the respondent Margaret A. was not inserted in the body of exhibit C, which was then signed by the plaintiffs who were present, and within two months thereafter by the others whose signatures are attached. It was never presented to her, nor did she hear of it until the making of the motion to amend the decree.</p> <p>“ It was prepared at the instance of Kerchner’s counsel, who said, “we prefer to have the individual release,” the plaintiff’s counsel at the same time replying he did not deem it necessary to bind the parties; that they were bound by the receipt and release of Kerchner. At the same time counsel for plaintiffs told the counsel for the defendant that he would not guarantee that the said Margaret. A. would sign the paper. When, she heard of it, she refused to be bound by it or to take benefit under the release to her and the others, nor was any portion of the money paid received by her.</p> <p>“The said Margaret, on being informed that unless she consented to become a plaintiff in the special proceeding, she would be made a party defendant, (hen authorized Messrs. Shaw and Bennett to enter her name as plaintiff and to appear for her.</p> <p>“ The release executed by Kerchner, (exhibit D.), was never shown to appellant, nor was she notified of its existence.</p> <p>“After the compromise, Kerchner brought his action to foreclose the mortgage upon the Laurel Hill tract, against the devi-sees and legatees of the testator John Fairley, and Robert N.. Fairley and wife Mary J., when the two last and the said Margaret A. in their answers, set up the decree as an estoppel against the said Kerchner, to deny his possession of assets sufficient to pay all the testator's debts, including that secured by the mortgage. Thereupon he moved to correct and amend' the decree, and the cause being removed to the Supreme Court by appeal, it was denied, and he commenced the present action on the 22d day of October, 1884. The defendants R. N. Fairley and wife, were not parties in the special proceeding, nor in person or by attorney were they present when the settlement was agreed on. The former was a surely to the testator’s notes, and the lands con veyed in their mortgage are and were the property of the wife.”</p> <p>Upon the foregoing facts found, it is considered by the Court:</p> <p>“That the terms of the compromise made by the attorneys representing plaintiffs and defendants in the special proceeding for account and settlement, heretofore set out, are embraced in the-decree of the Probate Court, ‘ exhibit A ’ attached to the answer, and the three other papers marked ‘B,’ ‘C’ and ‘D,’ attached to the same, and that the failure to refer to the said papers and make them part of the decree, was by mistake and inadvertence •on the part of the counsel preparing and giving’ the same, it being the intention of the counsel and the parties present, that the •decree should embrace the whole terms of the compromise.</p> <p>“That the said decree by consent, as it was intended to be, and the compromise as set out in the decree and the three exhibits ^B/ cC’ and ‘D,’ was within the scope of the authority granted to said counsel by the parties. And the acceptance of the release signed by Kerohner, with the promise therein by the attorneys ■of record of Margaret A. McEachern, is binding upon her.</p> <p>“That the plaintiff’s cause of action herein is'uot barred by the statute of limitations, because of the attempt by plaintiff to assert bis rights, in the said special proceedings within three years of the discovery by him of the mistake in the decree, said discovery being made upon the filing of the answer of M. A. McEachern in the action for foreclosure, and his petition being filed May 24th, 1881, and the present action being commenced October 22nd, 1884, within one year after the denial of relief upon the petition in the Supreme Court.</p> <p>“Or, if the discovery of said mistake was at an earlier date, there was no statute of limitation bearing upon the cause of action.</p> <p>“No relief is demanded in this action against the defendants Robert N. Fairley and wife, and, on motion of plaintiff, a nol. pros, is entered as to R. N. Fairley and wife with costs.</p> <p>“It is further considered that the plaintiff is entitled to the Reformation of the decree as demanded in the complaint.”</p> <p>Judgment accordingly; defendant McEachern appeals to Supreme Court.</p>

Counter-Claim — Tenants in Common — Partition—Warranty. Civil ActioN tried before Mac Rae, Judge, and a jury, at Spring Term, 1885, of Catawba Superior Court.

Pleadings — Admissions—Description of Land. Civil Action tried before Gudger, Judge, at November Term, 1885, of Madison Superior Court. The complaint alleged in substance, that the plaintiff became surety for the defendant for a bill of costs in which the defendant had been cast, in the sum of about two hundred and fifty dollars.

Judgments — Irregular—Motion in the Cause — Infants—Judicial Sale — Innocent Purchaser. Civil ACTION tried before Graves, Judge, at Spring Term, 1884, of the Superior Court of Transylvania county. The plaintiffs are the children and heirs-at-law of P. S. Morgan, who died about the year 1862, and at the time of their father’s death, they were all infants of tender years.

Constitution — Power of County Commissioners to levy Tax for . Schools. Mr. Justice Merrimon dissents from the opinion of the Court. Civil ActioN, tried upon a case agreed by MeKoy, Judge, at October Term, 1885, of the Superior Coart of SAMPSON county. The facts sufficiently appear in the opinion. There was a judgment for the plaintiffs, and the defendants appealed.

Interest — Executors and Administrators. EXCEPTIONS to the report of a referee, heard at October Term, 1885, of the Supreme Court. This case is-reported in 87 N. C., 34, 90 N. C., 558, and 92 N. C., 442 and 447. At the last, hearing, the Court ordered a re-reference to the clerk, and upon the filing of his report, the defendant filed exceptions thereto. Reference is made to the former reports of the case, where the facts fully appear.

<p>Appeal — Certiorari—Undertaking on Appeal.</p> <p>Application by the plaintiff for a writ of certiorari as a substitute for an appeal, heard at October Term, 1885, of the Supreme Court.</p>

<p>The allowance made to referees for their services, is entirely in the sound discretion of the Court, and is not reviewable upon appeal.</p>

Homicide — Manslaughter—Reckless Use of Dangerous Weapons —Accident—Evidence— Opinion. The prisoner was tried for the murder of one Samuel Joyner, at Spring Term, 1885, of GreeNE Superior Court before Gndger, Judge. There was a verdict against, the prisoner for manslaughter, and judgment being pronounced thereon, he appealed.

Indictment — Motion to Quash. This was an INDICTMENT for larceny, tried before Clark, Judge, at July Term, 1885, Wake Superior Court. The defendant was convicted, and from the judgment thereon pronounced he appealed.

<p>To entitle a defendant in a criminal action to an appeal to the Supreme Court without security for costs, he must file his affidavit containing these essential averments : (1). That he is wholly unable to give security for the costs ; (2). • That, he is advised by counsel that he has reasonable cause for the appeal prayed; and (3). That the application is in good faith. The Code, §1235. The Court has no authority to dispense with, or the prosecutor to waive the requirements of the statute in this respect.</p>

Appeal— Certiorari — Judgment—New Trial. This was an appeal from the Inferior Court of Pitt couuty, heard before Gadget', Judge, at Spring Term, 1885, of Superior Court for that county. The facts are fully stated in the opinion.

Perjury— Oath — Evidence— Witn ess — Presumption. This was an indictment for perjury, tried before Connor, Judge, at July Term, 1885, of the, Superior Court of WayNE county.

Drummer— Taxation — Indictment. INDICTMENT, tried before Meares, Judge, and a jury, at October Term, 1885, of MeokleNburg- Criminal Court. The indictment is for an alleged violation of §28, ch. 175, of the act to raise revenue, passed at the last session of the General Assembly, and contains two counts.

Drummers — License•—•Intent. INDICTMENT tried before Avery, Judge, and a jury, at Fall Term, 1885, of the Superior Court of Bubke county.

Larceny — Evidence. This was an indictment for Larceny, tried at Spring Term, 1885, of the Superior Court for Johnston county, before Mao-Rae, Judge, and a jury. The jury returned a verdict of guilty against the defendants, and the Court gave judgment, from whicli they appealed. The case is stated in the opinion of the Court.

<p>1. To render the act oí killing excusable, on the ground oí self-defence, the prisoner should have reasonable ground to apprehend, and should actually apprehend, that his life is in danger or that deceased is about to do him some great bodily harm ; but it is for the jury, and not for the prisoner, to judge of the reasonableness of such apprehension.</p> <p>2. It is held as a general rule that the failure of the Judge to charge the jury on a certain point, unless requested so to charge, is not error. But it is his duty under The Code, §413, to state clearly the particular issues arising on the evidence, and on which the jury are to pass, and to instruct them as to the law applicable to every state of facts which they may find from the evidence.</p> <p>3. Where there are divers witnesses, and the testimony is conflicting, it is error in the Judge to single out a single witness who is contradicted by other witnesses, and to instruct the jury that if they believe the testimony of such witness, then the prisoner was guilty of murder.</p> <p>4. When there is a conflict of testimony which leaves a case in doubt before the jury, and the Judge uses language which may be subject to misapprehension and is calculated to mislead, this Court will order a venire de novo.</p>

Indictment — Murder—Jurors—their Competency — Practice— Evidence. Indictment for murder, tried before Gilmer, Judge, and a jury, at Spring Term, 1885, of the Superior Court of Henderson county. There was a verdict of guilty, and from the judgment thereon the defendant appealed. The facts appear fully in the opinion.

Larceny — Indictment. Indictment for larceny, tried before MacRae, Judge, and a jury, at August Term, 1885, of the Superior Court of Robeson county.

<p>1. By §1004 of The Code, the secret burying or other secret disposal of the body of a dead child, born alive, is made a misdemeanor; and the endeavor to conceal the birth of such child is also a misdemeanor.</p> <p>2. The form of the indictment set out in this case approved.</p>

<p>Appeal — Record— Certiorari.</p> <p>MOTION to dismiss ihe defendant’s appeal, heard at October Term, 1885, of the Supreme Court.</p>

Assault with intent to commit Rape — Evidence. INDICTMENT ior an assault with intent to ravish, tried before Graves, Judge, and a jury at Fall Term, 1885, of the Superior Court of Yadkin County. The prosecutrix, Lucy Venable, testified that the defendant assaulted her in an indecent and forcible manner; that he dragged her into the woods and bit her on the face and shoulder; that she screamed and fought him until she forced herself from him.

Evidence — Attempt to Bribe Juror. This was an indictment-for FORNICATION AND adultery, tried at Fall Term, 1885, of the Superior Court of Jacksoh county, before Gudger, Judge. The facts are stated in the opinion.

Murder — Judge’s Charge. Indictment for murder, tried before Gud.ger, Judge, and a jury, at Spring Term, 1885, of the Superior Court of Pitt county. The appellants and Henry Speight and Granville Slade were indicted for the murder of one Nixon Moore. At the close of the evidence, the Solicitor for the State consented to a verdict of not guilty as to Granville Slade; and a verdict for manslaughter was by consent rendered as to Henry Speight-.

<p>Grand Jury — Indictment—Practice— Quashing — Challenges to Jury.</p> <p>Indictment for Larch NY, tried before Meares, Judge, and a jury, at May Term, 1885, of the Criminal Court of New Hanover county.</p> <p>There was a verdict of guilty, and the defendants appealed.</p> <p>The facts sufficiently appear in the opinion.</p>

Statement of the ease on appeal — Practice. INDICTMENT tried before MacRae, Judge, and'a jury, at .Spring Term, 1885, of the Superior Court of Robeson county. There was a verdict of guilty, and from the judgment thereon, the defendant appealed. On the hearing in the Supreme Court, the Attorney General moved to affirm the judgment, on the ground that no statement of the case accompanied the record.

<p>1. An appeal will be dismissed when the transcript fails to show that a court was held by a Judge at the place allowed by law, or that a grand jury was drawn and charged.</p> <p>2. A certiorari will not be issued to bring up a perfect transcript, when it appears from the case on appeal that the questions intended to be raised are without merit.</p>

Indictment — Perjury■—Record,—Motion to Quash — Arrest of Judgment— Grand Jury. This was an indictment for perjury, tried before Gudger, Judge, and a jury, at Spring Term, 1885, of PENDER Superior Court. The indictment contains two assignments for perjury in the same count. The defendant was found guilty, and moved in arrest of judgment. 1.

Evi den ce — Pra dice. Indictment for LarceNY, tried before Meares, Judge, and a jury, at September Term, 1885, of the Criminal Court of New HANOVER county.

Evidence— Confessions — Abduction—Indictm ent. Indictment tried before Clark, Judge,_and a jury, at'Sep-, teraber Criminal Term, 1885, of Wake Superior Court.

Indictme n t — A rson — Indictment. Appeal from the Inferior Court-, heard by Chaves, Judge, at Spring Term, 1885, of Edgecombe Superior Court.

<p>1. Au appeal does not. lie to the Superior Court from the action of a justice of the peace requiring a party brought before him on a peace warrant, to give bond to keep the peace. It is suggested, that in a proper case the action of the justice might be reviewed by a certiorari or habeas corpus.</p> <p>■2. Where a justice bound a party over to keep the peace, and on appeal to the Superior Court, the order of the justice was reversed, and the prosecutors ordered to pay the costs, who appealed to the Supreme Court; It was held, to be erroneous.</p>

Punishment. — Judgment—Imprisonment—Costs. Indictment tried before Clark, Judge, and a jury, at July Criminal Term, 1885, of Wake Superior Court. The prisoner was convicted, and appealed from the judgment as pronounced. The facts fully appear in the opinion.

Assignment of Error — Privilege of Counsel — Perjury—Evidence— Variance. This was an indictment for perjury, tried- before Gndger, Judge, and a jury, at Spring Term, 1885, of SAMPSON Superior Court.

Concealed Weapons. Indictment for carrying a concealed weapon, tried before Clark, Judge, and a jury, at August Term, 1885, of the Superior Court of Johnston county.

<p>1. A writ of habeas corpus will not be issued when it appears on the face of the petition, that the petitioner is detained by virtue of the final judgment of a Court of competent jurisdiction.</p> <p>2. A petition for habeas corpus must allege that the imprisonment has not been already adjudged upon a prior writ of habeas corpus.</p> <p>3. A writ of certiorari as a substitute for an appeal, will not be granted when the applicant fails to give any excuse why he has failed to appeal, and when he shows no merits.</p> <p>4. The Court has power, during a term, to recall, correct, or modify an unexecuted judgment, iu a criminal, as well as in a civil case.</p> <p>5. Where a prisoner was sentenced to twelve months imprisonment, and during the same term at which the punishment was inflicted, and after eight days of the time had expired, the Court changed the punishment to six months imprisonment ; It was held, that the Court had power to so decrease the punishment, and the prisoner could not complain.</p> <p>6. In such case, the time for which the convict is to be imprisoned begins from the day when he first went to jail, and so in this ease, the six mouths must be shortened by the eight days.</p>

Practice — Oriminal Intent — Injury to property by a tenant— Fixtures. INDICTMENT for injury to a house by a tenant, tried before Avery, Judge, and a jury, at Fall Term, 1885, of Buuice Superior Court.

Former Jeopardy — Fhidenee. Iudictmeut for an Affray, heard on appeal from the Inferior Court, by Gudger, Judge, at Fall Term, 1885, of Buítcombe Superior Court. ■ The indictment charged the… Held: that upon these facts, Weaver had never been in jeopardy, and refused the motion. Weaver excepted. Another jury was then impanelled in usual .form to try the issues of traverse, joined between the State and the defendants Clitus Weaver and George Presley.

Private Statutes — Public Local Statutes- — Indictment. INDICTMENT, tried before Avery, Judge, and a jury, at Fall Term, 1885, of the Superior Court of Burke county. Held: and if a majority of the votes cast should favor “prohibition,” that it should be indictable to sell liquor within two miles of the court house in Morganton. The facts sufficiently appear in the opinion. There was a verdict of guilty, and from the judgment thereon the defendant appealed.

Concealed Weapons — Criminal Intent. • This was ail indictment against the defendant for carrying a pistol concealed about his person while off his own premises, tried before Avery, Judge, and a jury, at the Spring Term, 1885, of Mitchell Superior Court.

Disorderly House — Indictment. Indictment for keeping a Disorderly House, tried before Gudger, Judge, and a jury, at Fall Term, 1885, of the Superior Court of Jackson county. There was a verdict of guilty, and from the judgment thereon, the defendant appealed. The facts are fully set out in the opinion.

Evidence. INDICTMENT, tried before Qudger, Judge, and a jury, at Spring Term, 1885, of Duplin Superior Court. On the trial, there were several exceptions taken to the ruling of the Court in receiving and refusing evidence, only one of which is necessary to consider for the purpose of determining this appeal.

Appeals in forma pauperis. INDICTMENT, tried before MacRae, Judge, and a jury, at Spring Term, 1885, of the Superior Court of Ashe county. The defendant was found guilty, and upon judgment being pronounced against him, appealed to this Court.

Jurisdiction — Statutes— Construction of. INDICTMENT, heard before Gudger, Judge, at August Term, 1885, of the Superior Court of Madison county. The indictment was against the defendant and George W. Swepson, now dead, for a conspiracy. The indictment was fouud at Fall Term, 1870, of the Superior Court of Madison county, and was pending at the August Term, 1885, of said Court.

Appeal in forma pa.vperis — ■Presumption. Indiotment for an Affray, tried before MaaRae, Judge, and a jury, at Spring Term, 1885, of Caldwell Superior Court. When the case was called in this Court, the Attorney General moved to dismiss for the reasons set out in the opinion.

Indictment — Murder— Transcript of Record. — Eoiden ce— Challenge to Juror. This was an indictment for Murder, tried before Gilmer, Judge, at Spring Term, 1885, of Swain Superior Court. The case, on motion of the prisoner, had been removed from Jackson county to Swain county for trial.

Motion to Dismiss Appeal — Undertaking—Costs—Appeal— Statement of Case on Appeal. This wíis a proceeding to tax the prosecutor with the costs in a Criminal Proceeding commenced before a justice, of the peace of Greene county, and carried by appeal to the Superior Court of that county, in which it was heard before Gudger, Judge, at Spring Terra, 1885, of that Court.

Indictment — Rape—Evidence—Practice. This was an indictment for Rape, tried before Ouclger, Judge, and a jury, at Spring Term, 1885, of the Superior Court of Onslow county. The jury returned a verdict of guilty, and the Court gave judgment thereon against the prisoner, from which he appealed. The case is stated in the opinion of the Court.