Volume 94 — North Carolina Reports

Civil ACTION, tried before Shepherd, Judge, and a jury, at Spring Term, 1883, of the Superior Court of Hertford county. This action was brought to recover the possession of two adjoining tracts of land.

Civil action, tried before Gilmer, Judge, and a jury, at January Special Term, 1886, of the Superior Court of Durham county.

Civil action, tried before MeKoy, Judge, and a jury, at July Special Term, 1884, of HERTFORD Superior Court. This was a civil action, prosecuted under a claim of title for the recovery of the possession of the land described in the complaint and withheld by the defendants.

<p>Executrix — Personal Property Exemptions — ■Mortgage.</p> <p>1. A debtor is entitled to have bis personal property exemption ascertained up to and immediately before the sale.</p> <p>2. After an execution has been returned with the allotment of the personal property exemption, it becomes an estoppel, but as long as the process remains in the officer’s hands, such allotment is in fieri, and may be corrected.</p> <p>3. If property belonging- to the judgment debtor has been omitted by the appraisers, they have the power to correct the allotment.</p> <p>4. While an unregistered mortgage is not- valid as to third parties, yet the lack of registration cannot subject to sale under execution, property which would be exempt if there were no mortgages.</p> <p>{Burton v. Spiers, 87 N. C., 87 ; Duvall v. Rollins, 68 N. 0., 220 ; Orummen v. Bennett, Ibid., 494, cited and approved).</p>

This was a civil action, tried before Gilmer, Judge, and a jury, at the January Special Term, 1886, of Durham Superior Court. The action was brought by the plaintiff to recover the amount alleged to be due upon the following sealed note : $150. Twelve months after date, we, or either of us, promise to pay James House, with interest from date, or order, the sum of one hundred and fifty dollars, for value received. Witness our hands and seals, this 21st of September, 1860.

Civil action, heard by Avery, Judge, at Spring Term, 1884, of the Superior Court of Bertie county.

Special PROCEEDING for the partition of land, heard on appeal from the Clerk, by Gilmer, Judge, at January Special Term, 1886, of Durham Superior Court. The facts are set out in the opinion. The defendants appealed.

Civil action to recover the possession of land,' tried before Shipp, Judge, and a jury, at February Special Term, 1885, of Ceaven Superior Court. The plaintiff introduced the following deeds in support of his title: (1): A deed from Owen Chestnut to Elijah Hardison, executed in 1842. (2). A deed from Elijah Hardison to the Atlantic and North Carolina Railroad Company, executed in 1856. (3). A deed from said company to George A. Davey, executed in 1881. (4).

<p>Claim and Delivery — Justice’s Jurisdiction.</p> <p>1. In actions ex contractu, justices of the peace have jurisdiction, when the sum demanded does not exceed two hundred dollars, hut in actions ex delicto, their jurisdiction is limited to eases wherein the value of the property does not exceed fifty dollars.</p> <p>2. In actions before a justice of the peace, if on contract, the summons should state the amount demanded, if for a tort, it should state the amount of damages claimed, and if for the recovery of specific property, the value of the property, and such statement in the summons gives the justice prima facie jurisdiction.</p> <p>3. It seems, that where a plaintiff, in an action for a tort before a justice, only demands damages to the amount of fifty dollars — aud on the trial it is ascertained that his damages amount to more than that sum, he may remit the excess, and thus give jurisdiction to the justice.</p> <p>4. Where, in an action of claim and delivery, it appears that the value of the property exceeds fifty dollars, it at once oust the jurisdiction of the justice, and the plaintiff cannot confer jurisdiction by a remitter.</p> <p>5. A judgment rendered by a justice of the peace in an action in which he has no jurisdiction, is void.</p> <p>6. Where, in an action of claim and delivery begun before a justice, the jury found the value of the property to be over fifty dollars, but that the plaintiff was entitled to the possession ; It was held, that the justice had no jurisdiction and the action should be dismissed and the property restored to the defendant.</p> <p>{Allen, v. .Jackson, 86 N. C., 321; Dalton v. Webster, .82 N. 0., 279; Harper v. Davis, 9 Ired., 44; Grist v. Hodges, 3 Dev., 198; Jones v. Jones, 3 Dev., 360; Branch v. Houston, Bush., 85; Burroughs v. McNeill, 2 Dev. & Bat. Eq., 297; State v. Ben-thall, 82 N. C., 664; Perry v. Tupper, 70 N. C., 538; Manix v. Howard, 82 N. C.," 125, cited and approved).</p>

Civil ACTION tried before Oudger, Judge, at Pall Term, 1884, of NORTHAMPTON Superior Court. The suit was begun on October 31,1870, and is for the recovery of the tract of land described in the complaint, which formerly belonged to one Burnell Pate. He died in 1861, leaving a widow and two children who are the parties litigant in the action.

This actioD, begun in June, 1879, by the plaintiff testator, is for the foreclosure of A mortgage made by the defendant on January 8, 1876, to secure certain notes therein described and for the sale of the land therein conveyed for their payment.

<p>This was a civil action heard upon exception to the report of the Clerk before Phillips, Judge, at the Spring Term, 1885, of Chatham Superior Court.</p> <p>At the Fall Term, 1884, of said Court, a judgment was rendered in favor of the plaintiff against the defendant, John B. Harris, for the sum of three hundred and four dollars and thirty cents.</p> <p>A reference was then ordered by the Court, to the Clerk, to take an account of the property, money and effects that have come or ought to have come into the hands of H. A. London, trustee of J: B. Harris, by virtue of a deed of trust executed to him by said Harris on the 16tb day of May, 1883, for the use and benefit of the creditors of said Harris, as contained in said deed; and report to the next term of the Court. It was further ordered that he report, whether the said trustee had collected, taken into his possession, and applied in due course of administration all the property and effects conveyed to him, as aforesaid, and if not, what part and how much of the money remained unexpended in the hands of the said trustee, and what is the character and nature of the said property and effects.</p> <p>At Spring Term, 1885, the Clerk made his report, which shows that prior to the date of the execution of the deed of trust, the defendant John B. Harris, and his wife, had given three several mortgages on two tracts of land situate in the county of Chatham, on Landren’s creek, containing about three hundred acres; one to Jesse Richardson to secure a debt of $800, due July 17th, 1883, with interest; another to S. T. Womble to secure a debt for $325 due 1st January — with interest at eight per cent.; and a third mortgage to B. Y. White to secure a debt for the sum of $800 with interest at eight per cent, from the 24th day of May, 1882. The aggregate sum secured by these mortgages amounted to $2,038.75, and there was no reservation of the homestead in either of these mortgages.</p> <p>After the execution of the mortgages, to-wit, on the 16th day of May, 1883, the defendant John B. Harris executed toH. A. London, a deed of trust conveying to him all of his personal and real estate, including the land conveyed in the mortgages, for the benefit of his creditors, excepting his homestead and personal property exemptions. The creditors secured were provided for in two classes.. Those mentioned íd the mortgage deeds, and some others, constituted the first class. The trustee sold all the propei'ty, except two hundred and fifty acres, the land conveyed in the mortgages, which was allotted to the defendant as his homestead by proceedings had by the sheriff under an execution which was issued to him, upon a judgment rendered in favor of-Bynum Manufacturing Company against Harris, after the execution of the deed of trust.</p> <p>And after allowing to the defendant his personal property exemption of five hundred dollars, he applied the proceeds of the sales to the payment of the debts in the class of preferred creditors, in which were included the mortgagees, and that the ' amount paid to the mortgage creditors was $456.65 more than the value of all the real estate of the defendant Harris sold by the trustee, and the assessed value of the homestead as assigned to him. In other words, the trustee applied the proceeds of the sales of the real estate and the personal property conveyed in the deed of trust to the extinguishment of the debts secured in the mortgages, in exoneration of the defendant’s homestead, and the amount thus paid on the debts secured in the mortgages was $456.15 more than the value of all the real estate of the defendant, including the land conveyed in the mortgages, which was allotted to the defendant for his homestead.</p> <p>The plaintiff excepted to the report of the clerk, for that he had not charged the trustee with the value of the two hundred and fifty acres allotted to the defendant as his homestead.</p> <p>His Honor overruled the exception, confirmed the report and discharged the trustee from further performing of the trust, and the plaintiff appealed therefrom.</p>

This was a special PROCEEDING for a partition, begun before the Clerk of the Superior Court of Nash county, and carried by appeal, upon a question of- law raised by the pleadings, before Connor, Judge. The petitioner alleged in his petition : 1. That William Pittman, Sr., late of this county, died intestate, and without leaving any surviving wife, several years prior to 1848) leaving him surviving two children, William Pittman, Jr., and his sister,..

<p>Execution — Supplemental Proceedings — Receiver.</p> <p>Where a receiver is appointed in a proceeding supplemental to execution, he becomes the legal assignee of the property specified in the order, subject to the direction of the Court in which the judgment was rendered, and the judgment debtor is forbidden to interfere in any manner with its collection or control.</p>

This was a civil ACTION begun before a justice of the peace, and carried by appeal of the plaintiff to the Superior Court of the county of Durham, and tried before Gilmer, Judge, at the January Special Term, 1886.

This was an ACTION to recover possession of certain crops raised on land belonging to the feme defendant, and was tried before Avery, Judge, at November Term, 1885, of Lenoir Superior Court.

Civil ACTION, tried by Gudger, Judge, at May Term, 1885, of the Superior Court of DupliN county. This was an action brought to recover of W. B. Middleton, guardian, the intestate of defendant B. P. Middleton, and the sureties upon his bond, whatever might be due the plaintiffs as wards of said W. B. Middleton, and to subrogate the plaintiffs to the rights of the sureties in a certain mortgage deed executed to them by said W. B. Middleton.

Civil ACTION to recover land, tried before Avery, Judge, and a jury, at January Special Term, 1884, of the Superior Court of Beetie county. It was admitted on the trial that both the plaintiff and defendants claim title to the land in controversy, under the will of Augustus Holly.

This was a civil action tried before Shipp, Judge, and a jury, at Spring Term, 1885, of Chowan Superior Court. The plaintiff introduced a mortgage from John S. Hedrick to himself, to secure a note therein recited, payable to the plaintiff. He showed that the defendant had purchased the mare described in the deed, and was still in possession. It was admitted that the mortgagor, J. S. Hedrick, had died before the commencement of this action.

<p>Administration — Cownier-claim—Deed—Description—Jurisdiction — Mortgage— Verdict.</p> <p>1. A new trial will not be granted, if tbe verdict is a proper one, although it may have been returned in obedience to an erroneous instruction from the Court.</p> <p>2. The sale or mortgage of a crop to Toe planted, as well as one planted and in process of cultivation, is valid — provided the place where the crop is to be pro-dueed is designated with certainty sufficient to identify it. It seems, parol testimony is competent to fit the description to the property and show the agreement of the parties.</p> <p>3. A mortgage conveying “ my entire crop of every description ” is too vague to pass any title to the property mentioned.</p> <p>4. A defendant is entitled to judgment upon a counter-claim, if no reply or demurrer has been interposed, although it would have been refused if objection had been made in apt form and time.</p> <p>5. Where an administrator recovers judgment upon his cause of action, and the defendant also upon his counter-claim, the former is entitled to an execution for the entire amount of his recovery; but the execution on the defendant’s judgment will be stayed until it is ascertained what amount of the assets of the estate of the intestate is applicable thereto.</p> <p>6. The Superior Court, in tei'm, has incidental jurisdiction to order the taking of an account of the administration, where necessary for adjusting the rights of the parties to any action therein pending.</p> <p>(Ootton v. Willoughby, 83 N. C., 75 ; Harris y. Jones, Ibid., 317; Rawlings v. Sunt, 90 N. C., 270; Atkinson v. Gh’aves, 91 N. C., 99 ; Barnhardt v. Smith, 86 N. 0., 473; MaunajY. Ingram, 78 N. C., 96, and Whedbee v. Riddick, 79 N. C., 521, cited and approved).</p>

This was a civil action tried before McEoy, Judge, and a jury, at the January Special Term of the Superior Court for the county of HERTFORD. There were two actions.

This was a civil action, tried before Shipp, Judge, at Spring Term, 1885, of Chowan Superior Court, upon the following case agreed, to-wit: John W. Nowell died intestate in Chowan county in 1883, leaving him surviving, Cornelia C. Nowell, his widow, and the plaintiff J. W. Nowell, Jr., and the three feme defendants, Julia, wife of R. H. Whedbee, Ada Nowell, and Sallie, wife of W. H. Elliott, none of whom had any estate, and all are now of full age, except the plaintiff J. W.…

Civil action, tried before Gilmer, Judge, and a jury, at August Term, 1885, of the Superior Court of Guilford county.

<p>This was the defendant Keogh’s appeal in the foregoing ease.</p> <p>The facts are the same as in the foregoing ease.</p>

<p>Appeal — Service of Statement of the Case — Rules.</p> <p>1. An appeal will not be dismissed because there is no statement of the ease on appeal, because there may be error apparent on the face oí the record. The proper motion, if there be no error apparent on the record, is to affirm the judgment.</p> <p>2. Any statement in the record is taken as true, and the Supreme Court will act on it, until it shall be modified in some proper -way by the Judge who made it.</p> <p>3. So where it was stated in the record by the Judge who settled the case on appeal, that it was agreed that the Court should make out the statement of the case, without notice to counsel, the Supreme Court will take it as true, and will not expunge the case from the transcript, on the affidavit of the appellee and his counsel that no such agreement was made.</p> <p>4. This Court will not entertain any motion, unless reduced to writing.</p> <p>(State y. Crook, 91 N. C., 536; State v. Freeman, 93 N. C., 558, State v. Byrd, Ibid., 624; Faschallv. Bullock, 80 N. C., 8; Bank v. Its Creditors, Ibid., 9; Neal y. Mace, 89 N. 0., 171; McDaniel v. King, S9 N. C., 29; Currie v. Clark, 90 N. C., 17; Cheek v. Watson, Ibid., 302 ; Ware v. Nisbit, 92 N. C., 202, cited and approved).</p>

<p>Civil ACTION to recover land, tried before Avery, Judge, and a jury, at Fall Term, 1883, of Hertford Superior Court.</p> <p>Both the plaintiff and the defendants claim to derive title to the land, the subject of this action, from Godwin C. Moore, who died on the 25th day of May, 1880.</p> <p>Before and at the time of his death, there were two docketed judgments, for considerable sums of money, in favor of different persons, against him in the Superior Court of the county of Hertford.</p> <p>After his death, on the 27th day of July, 1880, executions, bearing teste as of that day, were issued upon these judgments, directed and delivered to the sheriff of the county last named, who by virtue of them, sold the land in question, situated in that county, as the property of the said Moore, on the 6th day of September, of the same year, the plaintiff being the purchaser, and taking the sheriff’s deed for the same.</p> <p>On the trial, the plaintiff produced the judgments, the executions mentioned, the returns of the sheriff thereof and thereupon, and the sheriff’s deed mentioned, and relied solely upon the same as evidence of title to the land'in him.</p> <p>The Court held that the executions were void, and that the deed of the sheriff was inoperative, and passed no title to the plaintiff, and gave judgment for the defendants. The plaintiff having excepted, appealed to this Court.</p>

Civil action to recover land, tried before Graves, Judge, and a jury, at July Special Term, 1885, of the Superior Court of Haywood county. There was a judgment for the plaintiff, and the defendants appealed. The facts fully appear in the opinion.

Civil ACTION, tried before Graves, Judge, and a jury, at Spring Term, 1885, of the Superior Court of Edgecombe county. The following is a copy of the material facts of the plaintiff’s complaint: “1st. That some time during the year 1882, the plaintiff and defendants entered into an agreement, whereby defendants leased to plaintiff a hall in the town of Wilson, well known as Mamona Hall, and generally used for theatrical purposes.

This is a proceeding by the defendant, under section 2, chapter 357, of the laws of 1883, to revise the allotment of his homestead, made on or about the 20th day of April, 1881, under executions issuing upon judgments docketed in the Superior Court of Halifax, in favor of the plain tiffs and against the defendant, heard before Graves, Judge, at Spring Term, 1885, of Halifax Superior Court.

Civil action for the recovery of land, tried before Shipp, Judge, and a jury, at Spring Terra, 1885, of the Superior Court of TYRRELL county. The land, which is the subject of controversy, belonged to Daniel Woodley, senior, and was sold in November, 1868, to John W. Hassell, at the price of $106 by the sheriff of Tyrrell county, under execution issuing upon a decree rendered in the Court of Equity of that county, to satisfy the fees and costs due the officers.

<p>Civil ACTION, tried before Phillips, Judge, upon a case agreed at January Term, 1886, of the Superior Court for Franklin county.</p> <p>The present action was commenced on October 16, 1879, and its object is the recovery of money due on a sealed note. The f§cts are agreed on as follows:</p> <p>That on May 25th, 1859, James Murphy executed the note under seal sued on, for $300, payable one day after date; that on October 2nd, 1859, there was a payment on the note by Murphy of $100, which was duly credited thereon; that soon after such payment was made, the note was transferred to J. B. Tucker, plaintiffs testator, for value; that J. B. Tucker died in 1864, leaving a last will and testament, under which plaintiff qualified as executrix; that James Murphy died in 1861, leaving a last will and testament, to which H. Harris qualified as executor in 1861; that he was removed as executor in 1876, and W. H. Spencer was appointed administrator de bonis non, cum testamento annexo.</p> <p>After the appointment of Spencer as administrator, the plaintiff executrix presented her claim to him and demanded payment. The administrator answered that there were no personal assets in his hands belonging to his testator, but that there was some land; and the plaintiff demanded that said land should be subjected to the payment of this debt, to which he assented, and promised that as soon as he could by proper proceeding make the land assets, he would pay the debt.</p> <p>The administrator instituted proceedings against the heirs-at-law of said James Murphy for that purpose, which was resisted.</p> <p>W. H. Spencer died in September, 1877> before any decree was obtained, and the proceeding abated.</p> <p>Letters of administration were issued to the defendant Baker as administrator de bonis non of James Murphy, October 15th, 1879. Summons issued on October 16th, 1879.</p> <p>That no assets have come into the hands of the defendant, and none went into the hands of W. H. Spencer, administrator.</p> <p>That sufficient assets to pay the debts of James Murphy went into the hands of H. Harris, his executor, and that no final account was rendered by said executor.</p> <p>Upon the foregoing facts it was adjudged that the plaintiff take nothing by his action, and that the defendant go without d^y and recover of the plaintiff the costs and disbursements of the action.</p> <p>From this judgment the plaintiff appealed.</p>

This was a motion to set aside a judgment heretofore rendered in the Superior Court of Granville.county, for irregularity, heard by Shepherd, Judge, at Spring Term, 1885, of said Court. The facts were as follows; It appears that on the 27th day of November, 1874, the Court of Probate of the county of Granville, made an order whereof th.e following is a copy : “ Whereas, Nathaniel M. Norwood, guardian to Charles H.' Gregory, Robert FT. Gregory and Wm.

<p>This was au appeal from an interlocutory order made in a proceeding supplemental to execution, by Montgomery, Judge, at Chambers in CONCORD, on October 17th, 1885.</p> <p>A former appeal in this case was heard and determined at the February Term, 1885, of this Court. Coates v. Wilkes, 92 N. C., 376.</p> <p>Afterwards, at the August Term, 1885, of the Superior Court, proceedings were had, and the following is a copy of the material parts thereof;</p> <p>“ This cause coming on for further orders, before his Honor W. J. Montgomery, Judge, at a Superior Court held in Salisbury, for said county, on the 24th of August, 1885, it is now adjudged and decreed by the Court (the plaintiff and defendant being both represented by counsel), that the plaintiffs’ motion for the appointment of a receiver herein be allowed, and that E. K. P. Osborne, Esq., be appointed such receiver, and his bond be fixed at ten thousand dollars, to be approved by the Clerk of this Court. It is further adjudged and decreed, that plaintiffs’ motion for the production of the books in which are and were kept the accounts of Jane Wilkes, wife of defendant, be allowed and defendant is ordered to produce the same when called for.</p> <p>“Appeal prayed by defendant; notice waived; undertaking fixed at fifty dollars.”</p> <p>The following notice was filed in the office of the Clerk of the Court, on the 30th day of September, 1885:</p> <p>“Capt. John Wilkes: — You are hereby notified, that on Saturday, the 17th day of October, 1885, we shall move, before his Honor W. J. Montgomery, Judge, at his Chambers in Concord, North Carolina, for amendment and modification of the decree made at August Term, 1885, of Rowan Superior Court, appointing receiver, &c., in the supplemental proceedings now pending in the Superior Court of Rowan county, wherein we are plaintiffs and you are defendant.”</p> <p>Service of this notice was accepted September 30th, 1885.</p> <p>The following amended judgment was rendered by his Honor, at Chambers:</p> <p>“ The above entitled cause coming on for further hearing and orders, pursuant to the opinion and judgment of the Supreme Court upon the appeal heretofore taken, it is now, on motion of plaintiffs’ counsel, the defendant’s counsel being present, and resisting the same, ordered and adjudged, that a receiver be appointed of the property of the defendant, John Wilkes, wherever situate, and that E. E. P. Osborne, of Charlotte, North Carolina, be and he is hereby appointed a receiver as aforesaid, and that he give bond in the sum of five thousand dollars, payable to the defendant, conditioned for the faithful performance of his duties as such, it appearing to the Court that there are no other supplemental proceedings instituted against the defendant.</p> <p>“It is further ordered that the said defendant shall make no transfer or other disposition of his property, other than his property which may be exempt from execution as homestead and personal property exemption, or any interference therewith.</p> <p>“It further appearing to the Court, from the testimony in the cause, that Jane Wilkes, wife of the defendant, claims the Meck-lenburg Iron Works, machinery, tools and implements used in or connected therewith, and also the machinery, engine and fixtures at the Capp’s Hill gold mine, said iron works and gold mine being situate in Mecklenburg county, and more fully described in the pleadings and exhibits in this cause; and it further appearing that the said Jane Wilkes claims to own several town lots and buildings in the town of Charlotte, as well as the lot and residence in said town now occupied by her and the defendant, it is therefore further ordered that said Jane Wilkes is hereby forbidden to transfer or to make other disposition of any of said described property, till a sufficient opportunity be given the receiver appointed herein, to commence and prosecute an action or actions to recover the same.</p> <p>“It is further ordered, that said receiver be allowed to bring and prosecute such action or actions in the proper Court or Courts, in the name of the plaintiffs herein, for the recovery of the property of the defendant, real and personal, wherever situate, liable for the payment of plaintiffs’judgment, as he may be advised by his counsel in that behalf.</p> <p>“It is further ordered, that the defendant shall, whenever required in these proceedings, produce for examination the books of the Mecklenburg Iron Works, kept by or under the direction of John Wilkes or other persons for Jane Wilkes, his wife.”</p> <p>This order was made nunc pro tunc, in lieu of the former order.</p> <p>The following exceptions to this order, were filed in the office of the Clerk of said Court, on the 27th day of October, 1885, by the defendant:</p> <p>I. That the Judge had no jurisdiction or power to make so much of the said order as forbids Jane Wilkes to transfer or make other disposition of the property described in the order, and which she claims as her own property.</p> <p>II. That the order is erroneous, in so far as it requires the defendant John Wilkes to produce for examination the books of the Mecklenburg Iron Works, kept by or under the directions of John Wilkes, or other person, for Jane Wilkes.</p> <p>III. That it appears from the record, that the judgment upon which these proceedings are based, is, and was at the time of making the order herein referred to, barred by the statute of limitation, more than ten years having elapsed since the rendition and docketing of the judgment at the time this order was moved for and when it was made.</p> <p>IV. That it appears in this case, that there is real estate upon which the judgment was a lien at the commencement of the supplementary proceedings.</p> <p>The defendant appealed.</p>

Civil ACTION, for the specific recovery of a chattel, tried before Clark, Judge, and a jury, at August Terra, 1885, of Waice Superior Court. The following is the case settled upon appeal for this Court: “When the case was called for trial, plaintiff moved the Court for judgment on the pleadings, upon the ground that defendant’s answer admitted that plaintiffs were the owners and entitled to the possession of the mare, the property in controversy.

Civil action, tried before Gudger, Judge, at Spring Term, 1885, of the Superior Court of Pitt county.

This was a civil ACTION, tried before Clark, Judge, at the Fall Term, 1885, of Waice Superior Court, upon exceptions to the report of a referee. Exceptions were taken to the report by both parties, and both appealed from the rulings of the Court thereon.

Civil action, tried before Avery, Judge, at Spring Term, 1884, of the Superior Court of Halifax county. There was a verdict and judgment for the plaintiff, and the defendants appealed.

Civil action for the recovery of land, tried before Shepherd, Judge, and a jury, at Fall Term, 1885, of the Superior Court of Currituck County. His Honor directed a verdict for the defendant on the evidence, and the plaintiffs appealed. The facts appear fully in the opinion.

MotioN hy the defendant to dismiss an appeal, heard at the February term, 1886, of the Supreme Court. The facts appear in the opinion.

Civir action heard before Shepherd, Judge, and a jury, at Fall Term, 1885, of the Superior Court of Currituck county. The plaintiff appealed. The facts upon which the appeal was disposed of, appear in the opinion.

Special proceeding- heard on appeal from the Clerk, by Shipp, Judge, at Fall Term, 1885, of the Superior Court of Union county. This special proceeding was brought for the purpose of having the land described in the petition sold for partition among the heirs-at-law of D. B. Austin, deceased.

<p>Deeds — Fee Simple — Words of Inheritance — Construction— Warranty in Fee.</p> <p>1. Where it is the manifest purpose of a deed to pass a fee, the Court will effectuate this purpose, if it cau do so by. any reasonable interpretation.</p> <p>2. In the construction of deeds, the aim of the Court is to give effect to the intention of the parties, and to do so, it may transpose words and clauses of the instrument. Such transposition, however, must be reasonable, and render the whole instrument consistent and give effect to the obvious intent.</p> <p>3. AVhere a clause of warranty is intei’jected between the words of conveyance and the words of inheritance in a deed, the latter will be construed so as to qualify the quantity of the title conveyed as well as the warranty, and a fee-simple will pass.</p> <p>(/Stafford \. Jones, 91 N. C., 189; 8tdl v. Barham, 87 N. C., 62, cited and approved).</p>

Civil action, tried before Graves, Judge, at Spring Term, 1885, of the Superior Court of Northampton county. It appears that in the month of July, 1861, John M. Calvert, of the county of’ Northampton, died intestate in that county, and on the first day of September of that year, Samuel Calvert was duly appointed anti qualified as administrator of his estate, and took possession thereof.

Civil ACTION, heard by Philips, Judge, at Chambers, on December 9th, 1885, on a motion to continue a restraining order theretofore granted, to the hearing. The chief purpose of this action is to obtain perpetual relief by injunction. The plaintiff moved at Chambers, upon notice, for an injunction pending the action, until the hearing upon the merits.

Civil ACTION, tried before MacRae, Judge, and a jury, at Spring Term, 1885, of the Superior Court of JohNSTON county. This action is brought to recover damages for an alleged ■malicious prosecution. It appears from the case settled upon appeal, that on the trial, “In the course of his argument to .the jury, the plaintiff’s counsel was allowed to read the first and unverified answer,” of the defendant, the latter objecting.

This was a CIVIL ACTION, tried before Philips, Judge, and a jury, at the Fall Term, 1885, of WarreN Superior Court. The action was brought to recover the value of a note under seal as follows to-wit: “On the first day of November next, we or either of us promise to pay to S. P. Arrington, or order, seventy dollars for value received. I, Ella R. Bell promising to pay out of my separate estate said amount. This March 14th, 1881.

Civil action, tried before Montgomery, Judge, and a jury, at November Term, 1885, of the Superior Court of Rowan county.

<p>Civil ACTION tried before Montgomery, Judge, at November Term, 1885, of the Superior Court of RowaN county.</p> <p>The facts appear in the opinion.</p> <p>The plaintiff appealed.</p>

Civil. ACTION heard on demurrer, before Clark, Judge, at August Term, 1885, of the Superior Court of Wake eounty.

This was a civil actioN tried before Shepherd, Judge, and a jury, at the Fall Term, 1885, of Hertford Superior Court. The action was brought by the plaintiff as administrator of James Kiff, deceased, to recover from the defendant, a number of notes, and mortgages executed to secure them, payable to James Kiff' the plaintiff's intestate, as described in the complaint, which it is alleged the defendant unlawfully withholds from the plaintiff.

Civil ACTION, heard before Shepherd, Judge, and a jury, at Spring Term, 1886, of the Superior Court of Halifax county. The parts of the case settled upon appeal, necessary to understand the opinion of the Court, are as follows: “In order to prove that defendant Camp had used part of the crop made on testator’s land in 1883, the plaintiff introduced a witness, Henry Arrington, who testified, “ I lived on testator’s place the year he died.

This was a civil ACTION, heard before Shepherd, Judge, at Spring Term, 1886, of Halifax Superior Court, upon a demurrer filed by the plaintiff to the answer of the defendants. The pleadings in the case are as follows : 1. That the plaintiffs, W. H. Morris, F. Morris, V. Morris and S. B. Morris are partners, trading under the firm name of W. H. Morris & Sons and have been such partners since on and before the 26th day of April, 1883. 2.

Civil ACTION, tried before Gilmer, Judge, at Spring Term, 1885, of the Superior Court of Haywood county. At the last Term of this Court, the plaintiffs, (the appellees), moved to docket and dismiss the appeal, under Rule 2, §8, and at the same Term, after notice to the plaintiffs, the defendants moved to re-instate the appeal and for a writ of certiorari. The facts appear in the opinion.

MOTION by the plaintiff for a writ of eertiorari, heard at the February Term, 1886, of the Supreme Court. The action was tried at Spring Term, 1885, of the Superior Court of Herteord county, before Shipp, Judge, and a jury, and resulted in a judgment for the defendant. The facts appear in the opinion.

<p>Civil action, tried before Boykin, Judge, and a jury, at November Term, 1885, of the Superior Court of Duplin county.</p> <p>This suit was commenced by the issue of a summons on the 25th day of April, 1885, for a cause of action thus set out in the complaint. The defendant, Kenan, having been elected sheriff of Duplin county, on February 11th, 1885, as principal, and the other defendants as sureties, executed an official bond in the penal sum of $5,000, with condition required by law, which was accepted, and he inducted into office. A copy of the bond is annexed to the complaint. The plaintiffs, Jos. L. Burton and Ira J. Scott, constituting the partnership firm of Scott & Burton, on January 29th, 1885, made an assignment of their stock of goods to the plaintiff, Grisham, in trust, to secure certain debts due by them to the creditors therein named.</p> <p>It is unnecessary to set out the answers, and the substance of the complaint only, is given below, because one of the exceptions-is to the denial of the motion to dismiss, made upon the grounds that the complaint in the case “does not state facts sufficient to constitute a cause of action, founded on the sheriff’s bond, against him and his sureties, in that no breach of it is shown.”</p> <p>The facts out of which the exceptions presented in the appeal arise are as follows:</p> <p>The plaintiffs were partners in trade, and bought a bill of goods for a considerable amount, of the firm of Brown & Rod-dick, of the City of Wilmington, who recovered a judgment against the plaintiffs for the same, and on which an execution issued and was levied by the defendant sheriff, and the goods sold to satisfy the debt — the sheriff having previously demanded a bond of indemnity of Brown & Roddick, which was given. Separate actions were brought by the members of the plaintiff firm, but, on motion of the defendants, they were consolidated into one action, by order of the Court.</p> <p>The plaintiffs, before said sale, had made an assignment, alleged to be fraudulent, to J. W. Grisham, who was also made a party plaintiff at the instance of Scott & Burton, and who was in possession of the goods, as their trustee, at the time of the levy and sale.</p> <p>After stating the election, qualification and induction of the defendant sheriff into office, the plaintiffs further allege in their complaint substantially as follows :</p> <p>1. That the defendant sheriff executed a bond in the penal sum of five thousand dollars with the other defendants as sureties, with the following condition, to-wit:</p> <p>“ Now, therefore, if he shall well and truly execute and due return make, of all process and precepts to him directed, and pay out and satisfy all fees and sums of money by hitn received or levied by virtue of any process, into the proper office into which the same by the tenor thereof ought to be paid, or to the person or persons to whom the same shall be due, his, or her, or their executors, administrators, attorneys, or agents, and in all things will truly and faithfully execute the said office of sheriff during nis continuance therein, then this obligation to be void, otherwise to remain in full force and effect.”</p> <p>(Signed and sealed by the sheriff and sureties.)</p> <p>2. That the plaintiffs Ira J. Scott and Joseph L. Burton were doing business as partners, under the firm name of “Scott & Burton.”</p> <p>3. That on the 29th of January, 1885, Scott & Burton made an assignment to their co-plaintiff, J. W. Grisham.</p> <p>4. That thereafter, to-wit, on the 5th of March, 188'5, Brown & Roddick obtained judgment against Scott & Burton, and caused execution to be issued thereon and placed in the hands of the sheriff, who levied upon and sold the said goods thereunder.</p> <p>5. That, after said assignment, and prior to said sale, each of the plaintiffs, Scott and Burton, with the consent of the other, claimed his personal property exemption, but the sale was made without laying off the same.</p> <p>The plaintiffs demand judgment for five thousand dollars, to be discharged upon the payment of damages, and for general relief.</p> <p>The defendants alleged, among other things, that Scott & Burton had themselves retained of their personal property, more than sufficient to cover their personal property exemption at the time of making said assignment and sale.</p> <p>The case coming on to be heard, the defendants moved to dismiss the action, upon the ground that the complaint does not state facts sufficient to constitute a cause of action against the sheriff and his sureties, in that no breach of the conditions of the bond is shown, and, upon argument of the matters of law arising, the Court overruled the motion and the defendants excepted.</p> <p>The defendants then moved for a continuance, on account of the absence of certain witnesses, by whom they expected to prove that the plaintiffs Scott & Burton, at the time of said sale, had themselves retained property sufficient to cover their personal property exemption, bnt the Court ruled that the evidence was immaterial and incompetent, and the defendants excepted; thereupon the trial proceeded and resulted iu a verdict and judgment for the plaintiffs, and the defendants excepted aud appealed.</p>

Civil action, tried before Shipp, Judge, and a jury, at Fall Term, 1884, of the Superior Court of Buncombe county.

<p>This was a civil ACTION, tried before Shipp, Judge, at August Term, 1885, of Mecklenburg Superior Court.</p> <p>The action was brought by the plaintiff to recover damages from the defendant company, for an alleged injury sustained in consequence of having been wrongfully ejected from a carón the defendant’s road. The plaintiff alleged, that prior to January the 4th, 1883, he had purchased of defendant a first-class ticket on said road, and that on the day aforesaid, he took his seat in a first class car on defendant’s road, and soon after leaving Wilmington, going in the direction of Lumberton, the defendant’s conductor came into the car, where he and several gentlemen were seated, and told them that was a car appropriated to ladies, and his orders were, that no one should be permitted to ride, in that car, except ladies and their escorts. All the other gentlemen at once left, and went into the forward car, except plaintiff. He remonstrated, and insisted that by his contract with the company, he had the right to ride in that car, and insisted on maintaining his right. The conductor said that he was bound to comply with ■his instructions, and insisted that the plaintiff should comply with the regulations of the company, and approached him and laid his hand firmly but gently on his shoulder, and removed him to another car, which was not a first-class car, such as the defendant had contracted to carry the plaintiff in, but on the contrary, was deficient in all the comforts and conveniences usual in first class coaches. That it was filthy from constant use; was one half the size of a first class coach ; was crowded with passengers ; was filled with tobacco smoke, and was dirty, and improperly lighted ; and he told the conductor he was sensitive to the odor of tobacco, and it was dangerous for him to inhalé it; that he rode three hours on this car, and suffered great pain and mortification, &c.</p> <p>The defendant admitted that the plaintiff was required to change his seat from the car appropriated for ladies, to another car used for the accommodation of gentlemen. It' insisted that the car to which the plaintiff was transferred was a first-class car, and denied the allegations of the plaintiff that it was filthy and filled with tobacco smoke and other offensive odors, but, on the other hand, was furnished with comfortable seats, and was properly lighted; that the car into which the plaintiff was transferred was composed of two compartments, and divided by a close wooden partition, in the rear section of which smoking was not allowed, and was set apart for first-class passengers, while the other section was used for second class passengers. It denied that the conductor at any time put his hand on the plaintiff for the purpose of coercing or removing him, or at any time offered him any indignity, by word or act, but at all times treated him with courtesy and politeness, and when the conductor formally required the plaintiff to remove into the forward car, there was no one present but the conductor, porter and the plaintiff.</p> <p>The plaintiff testified that the car into which he was transferred from the “ ladies car,” was not a first-class car. It was low roofed, no ventilalion, and no means of ventilation, except by the windows; the seats were low and dirty. It was poorly lighted with a kerosene lamp on one side, full of tobacco smoke and odors from the water closet. The air in the car was so very warm, that he had to raise a window to get relief from the smoke and odor and heat; that there was a crack between that and the smoking car, and the door being out of order, the smoke from the adjoining car was let into the one where he was sitting; that he wras very sensitive to tobacco smoke, and when the conductor told him that he was required by his orders to remove him into the car assigned for gentlemen, he told him that he could not resist him physically, but that he protested against his removal, and would do so until there was such a show of force as’to compel him; that the conductor allowed him to remain and take a cup of coffee which he had ordered, and after he had finished with his coffee, the conductor approached him and placed his hand firmly but gently on his shoulder, and forced him to move into the other car; that the only injury he sustained from his ride in the car to which he was removed, was a slight nausea and headache from which he was relieved by hoisting a window.</p> <p>The only other witness who was introduced by the plaintiff was C. B. Wright, who testified that he was on the car that night, and that the car used for gentlemen that night was not what is known to the travelling public as a first-class car, but that it was not disagreeable to him, nor was the tobacco smoke, which he could smell, offensive.</p> <p>On the part of the defendant, Mr. Harden testified that he had been in the employment of the Raleigh and Gaston Railroad, in charge of the motive power. The car described by the witness, was loaned to defendant a short time before the 4th of January. It was in good order when it left Raleigh; it was newly painted, with comfortable plush seats; -was ventilated from the top by approved patent ventilators, and that it was used on the Raleigh and Gaston Railroad as first or second class car, as the occasion required.</p> <p>Mr. Clark, one of the gentlemen removed from the ladies car, testified that the car to which he aud the plaintiff and the others were removed, was clean aud comfortable; that he was sensitive to the smoke of tobacco, but did not detect the odor of tobacco that night in the car, and he suffered no discomfort that night in his ride on the car.</p> <p>Ur. Clark’s testimony was in substance the same. Mr. Mur-chinson testified, that he rode on the car that night from Wilmington to Lumberton ; that the car was clean, had comfortable seats, water closet and lights; that he did not detect the odor of tobacco, or any other offensive odor from the water closet. He conversed with the plaintiff on the trip, after he came into the car; he seemed to be comfortable. He got off with plaintiff at Lumberton, and stayed with him that night. He seemed well, and not injuriously affected by his ride that night. He made no complaint. When the plaintiff came into the car, he heard him say that “ he would make the defendants suffer for that night’s work.”</p> <p>Captain Everett, the conductor, corroborated the testimony o;f the other witnesses for the defendant, as to the condition of the car with respect to cleanliness, and the absence of offensive odors.</p> <p>He also testified, that he did not touch the plaintiff when he required him to leave that car, and when plaintiff said he was very sensitive to tobacco smoke, he told him if he put his objection on that ground, he might stay in the ladies’ car, but he said he would not put it on that ground, and went into the objectionable car. This car was borrowed from the Raleigh & Gas-ton Railroad Company, for use while the passenger car of the defendant was undergoing repairs. There were no offensive odors on it that night. No smoking was allowed in it.</p> <p>The defendant’s counsel asked for several instructions, among which was the following, to-wit:</p> <p>“ The plaintiff is not entitled to recover in this action exemplary or punitive damages, upon his own statement of the facts and circumstances, and he can recover, if anything, only actual damages for such supposed suffering as may have been directly caused by the defendant’s failure to furnish such accommodation as he was entitled to.”</p> <p>Instead of giving this instruction, his Honor in response to it, instructed the jury, “There is no allegation of any permanent sickness or injury, but you heard the testimony as to what he suffered, and if you should find there was a breach of contract, it is for you to determine what he suffered, and if you should find there was a breach of contract, it is for you to determine what damage he sustained. Take all the testimony, and then say whether he is entitled to any damages. It is contended on the part of the plaintiff that he was roughly treated. As I stated, the conductor had the right to enforce the rules of the company, but he had no right to eject the man with rudeness. If the conductor used improper force or rudeness on that occasion, the plaintiff might be entitled to exemplary damages, but if he used no more force than was necessary, the defendant would not be liable for vindictive or punitory-damages. There was no malice shown. If you are satisfied the conductor treated the plaintiff with rudeness, or used unnecessary force in putting him out of the car reserved for ladies, you will take that into consideration in estimating the damages. It is your province to fix that, .if the plaintiff is entitled to recover.”</p> <p>The jury returned a verdict in favor of the plaintiff for $475 damages, and there ivas motion'for a new trial. Motion overruled, and defendant appealed.</p>

Civil action, tried before Shipp, Judge, and a jury, at August Term, 1885, of the Superior Court of CLEVELAND county. Held: that in the trial of this issue, the burden of proof was upon the defendant, and he was entitled to open and conclude.

Civil action, pending in the Superior Court of Buncombe county, heard at Chambers by Oudger, Judge, on December 1st, 1885. The plaintiff, on the 20th day of May, 1885, in an action before a Justice of the Peace, recovered judgment for $124}^-against the defendant, who appealed, and three days thereafter caused notice thereof to be served as required by law, and paid the fees due the Justice.

This was an ACTION IN nature oe ejectment to recover land, tried before Shipp, Judge, at Spring Term, 1885, of Gaston •Superior Court. A jury trial was waived, and the case submitted to the Court to be tried upon the facts and law.

<p>Eor syllabus see preceding ease.</p>

Civil ACTION, for the recovery of land, tried before Gudger, Judge, and a jury, at- August- Term, 1885, of the Superior Court of Buncombe county.

Civil action, tried before Graves, Judge, and a jury, at Fall Term, 1885, of the Superior Court of Wilkes county. The action was brought on the guardian bond of Benjamin F.. Petty, against the defendant J. O. Rousseau as his administrator,, and against A. L. Rousseau as his surety to said bond.

Civil ACTION, tried before Graves, Judge, upon exceptions to the report of a referee, at July Special Term, 1885, of the Superior Court of Haywood county. James R. Love, residing in the county of Haywood, died in the year 1863, owning numerous and large tracts of land, situate in said county, and in the counties of Jackson and Swain, known by the expressive term, speculation lands, as designating the purpose for which they had been acquired and held.

Civil ACTION, tried before Avery, Judge, and a jury, at January Special Term, 1884, of the Superior Court of Bertie -county. Reddin Jones died intestate many years since, seized and possessed of a large tract of land in Bertie county, which descended in equal parts to his daughters, Fannie, wife of Calvin Godwin* Lavinia, wife of Henry D. Godwin, and his son Andrew J.. Jones.

<p>Special'proceeding — Ch'editor’s bill — Statute of Limitations— Parties.</p> <p>1. A special proceeding, begun by way of a creditor’s bill, for the settlement of the estate of a decedent and payment of his debts, continues until all the debts are discharged and there is a final judgment, and is not terminated by being left off the docket.</p> <p>2. When such proceeding is allowed to drop from the docket without a final judgment being rendered, it may be brought, forward on motion, to the end that unpaid creditors may assert their rights, and the proceedings be determined according to law.</p> <p>3. When suc.i 'motion is made, it should,' strictly, be disposed of, before contested debts are put in issue. Rut when no objection is made, both questions may be disposed of at the same time.</p> <p>4. The filing of a claim with the Clerk, by a creditor, gives him a standing in Court, in such proceeding, and is all he is required to do, unless the claim is contested.</p> <p>5. If the administrator intends to contest any claim, he should do so when it is filed with the Clerk.</p> <p>6. The litigation in respect to such contested claims is collateral to the special proceeding, and the termination of such collateral litigation does not terminate the special proceeding.</p> <p>7. When a claim against an estate is filed with the Clerk, before whom such proceeding is commenced, the statute of limitations ceases to run against such claim from the time it was filed. 1</p> <p>8. This special proceeding is equitable in its character, and the Court having general jurisdiction of the parties and subject matter, may make the next of 'kin and heirs-at-law parties, and compel the former to account for the personal property received by them, first, and then, if necessary, may order the real property to be sold to make assets to pay debts; or if the heir has sold the land and has the proceeds, the Court may compel an appropriation of the same, if it shall appear that the land was liable.</p> <p>{Brittain v. Mull, 91 N. C., 498; Dobson v. tiimonton, 93 N. C., 268, and Jones v. Desern, ante, 32, cited and approved).</p>

<p>Reference — Parties—A ccount Stated — Receiver.</p> <p>1. Where an account has been stated between parties, neither party can go back of such stated account, and bring into question transactions which took place prior to such statement, and embraced therein.</p> <p>2. Under the former system, where legal and equitable rights were administered in separate tribunals, a Court of equity could not confer upon a receiver appointed by it, a capacity to sue in his own name not recognized in a Court of law, but this is changed since the adoption of the Code system, which authorizes the party in interest to sue in his own name.</p> <p>8. A receiver appointed upon the dissolution of a corporation, or a trustee charged with the collection of its assets, can bring suit in his own name against a debtor of the corporation, or he can bring such suit in the name of the corporation.</p> <p>(Battle v. Davis, 66 N. 0., 250, cited and approved).</p>

<p>Civil ACTION, tried before Montgomery, Judge, and a jury, at Pall Term, 1885, of the Superior Court of DavidsON county.</p> <p>The facts appear in the opinion.</p> <p>The plaintiffs appealed.</p>

Motion to continue a restraining order to the hearing, in a civil ACTION pending in the Superior Court of Iredell county, beard by MacRae, Judge, at. Chambers, in Salisbury, on the 19th of February, 1886.

Civil ACTION, in the nature of a creditor’s bill, heard before MaaBae, Judge, at November Term, 1885, of the Superior Court of Cumberland county.

Petition fikd in the Supreme Court in the above entitled action, by R. W. Winston and T. L. Hargrove, the purchasers at the sale made under the decree of this Court in said action, heard at February Term, 1886, of the Supreme Court. This was a petition for a writ or ASSISTANCE, filed in the case of Knight v. Houghtalling, which was decided by the Court at the October Term, 1884, and reported in 85 N. C., 17. It was a civil action to foreclose a mortgage.

<p> Costs. </p> <p>Where there is a fund in Court, which is afterwards adjudged to belong to the plaintiff, and pending the controversy an order is made allowing a reference fee in the cause, which is paid out of the fund, and the final judgment is against the defendant for all of the costs, this sum so paid, is properly taxed in the costs, and must be paid by the defendant.</p>

Civil action, in the nature of a creditor’s bill, tried before MaoRae, Judge, at Spring Term, 1884, of the Superior Court of MONTGOMERY county.

Civil ACTION, in the nature of a creditor’s bill, tried before Montgomery, Judge, aud a jury, at Spring Term, 1886, of the Superior Court of YadkIN county. This action, begun on January 18th, 1882, as a creditor’s suit, is prosecuted against the administrator and heirs-at-law of John Douglas, deceased, the intestate debtor, to enforce a sale of the descended lands for the payment of his debts.

Motion to dissolve a restraining order, theretofore granted in a civil ACTION, pending in the Superior Court of Durham county, heard before Shepherd, Judge, at Chambers, in Louisburg, on the 1st of May, 1885. His Honor continued the injunction to the hearing, and the defendant appealed. The facts appear in the opinion.

<p>Certiorari — Appeal.</p> <p>1. Where, by agreement, the trial Judge takes the papers and renders judgment in vacation as of the Term, the appeal should be to Term of the Supreme Court next after the Term of the Superior Court as of which the judgment is rendered.</p> <p>2. A certiorari in lieu of an appeal, will not be granted when applied for after the Term to which the appeal should have been brought has expired,</p> <p>{Suita' v. Brittle, 92 N. C., 53 ; Pittman v. Kimberly, 92 N. C., 562, cited and approved).</p>

<p>Petition for the appointment of an administrator, heard on appeal from the Clerk of the Superior Court of Bujkke county, by Avery, Judge, at Chambers in Morganton, on July 17, 1885.</p> <p>This was a petition to the Clerk of the Superior Court of Burke county, by C. A. Little, to be appointed administrator de bonis non, cum testamento annexo, of John Sudderth, deceased.</p> <p>John Sudderth died on the.day of., 1865, leaving a last will and testament, in which he appointed Joseph Corpeuing, W. J. Sudderth, and-Sudderth executors thereof. All of the executors qualified, and tooff upon themselves the burden of executing the will, but each of them died intestate, and C. A. Little was appointed administrator of Joseph Corpen-■ing, aud R. J. Halliburton administrator of W. J. Sudderth. The testator left three children surviving him, to-wit, W. S. Sudderth, John R. Sudderth, and A. E. Sudderth, who intermarried with R. D. Combs, of whom A. E. Combs alone survives.</p> <p>This was a contest before the Clerk, between the different claimants, for the right to administer upon the estate of John Sudderth. There was a notice served on R. D. Combs and wife, the latter of whom was the next-of-kin of the said John Sudderth, to show cause why they should not be held to have renounced their right to administer oh his estate, and why the petitioner C. A. Little, as the highest creditor, should not have letters of administration issued to him. A. E. Combs and R. D. Combs appeared before the Clerk, and insisted that she, as next-of-kin, was entitled to the administration, and had the right to designate some suitable person to be appointed in her place, and accordingly did designate B. A. Berry, as a competent and suitable person to be appointed.</p> <p>The Clei’k, holding that the appointment of an administrator, under the circumstances of the case, was a matter within his discretion, appointed B. A. Berry, administrator de bonis non of John Sudderth, cum testamento annexo, who gave bond as required by law. From the ruling of the Clerk, C. A. Little appealed to the Judge of the district, and the cause coming on to be heard before Avery, Judge, at Chambers, on the 17th day of July, 1885, and being heard upon argument of counsel for all parties to the proceeding,.and the Court having by consent taken the papers in the case until the Fall Term, 1885, of the Superior Court of Burke county; and the Court being of opinion, and holding, that the Clerk erred in appointing B, A. Berry administrator as aforesaid, after finding as a conclusion of law, that Anna E. Combs had the first right to administer, as the only surviving child of said John Sudderth, and assigning as a reason for said appointment, that R. D. Combs and wife had designated said B. A. Berry, as a suitable person to administer in their stead: It was therefore considered and adjudged that the judgment of the Clerk be reversed and vacated, and that the matter be remanded to the Clerk, to the end that he may proceed to appoint an administrator of the estate of said John Sud-derth. From the judgment of the Court, B. A. Berry appealed to this Court.</p>

Civil ACTION, tried before Shipp, Judge, at Fall Term, 1885, of the Superior Court of UNION county. This action, begun before a justice of the peace, and removed by defendants’ appeal to the Superior Court, is for the recovery of the amount due on a note under seal, executed by the defendants, to J. W. Griffin, sheriff of Union county, and assigned by him to the plaintiff, for a valuable consideration.

Civil ACTION, tried before Graves, Judge, and a jury, at Fall Term, 1885, of the Superior Court of YadkiN county.

Civil action, tried before Qudger, Judge, and a jury, at August Term, 1885, of the Superior Court of Buncombe county.

Civil action, tried on appeal from the judgment of a Justice of the Peace, before Shepherd, Judge, and a jury, at Spring; Term, 1885, of the Superior Court of Vance county. The facts are as follows: The plaintiff seeks to recover $150, damage to a theatre drop curtain, while in transit over defendant’s railroad. It was in evidence that the said curtain was shipped from Columbia, South Carolina, to Henderson, North Carolina.

Civil ACTION, to recover land, tried before MaeJdae, Judge, on exceptions to the report of a referee, at Spring Term, 1885, of the Superior Court of Ashe county. This was a civil action to recover land brought by the plaintiff J. M. Hardin, against the defendant, to recover the land described in the complaint. It was stated in the judgment of the Court below, that it was admitted that R. T. Hardin had been made a party plaintiff.

Civil action, tried before Avery, Judge, at Fall Term, 1885, of the Superior Court of Burke county. The facts appear in the opinion. There was a judgment for the defendants, and the plaintiffs appealed.

<p>Civil action, to recover land, tried before Avery, Judge, at .Fall Term, 1885, of the Superior Court of HendersoN county.</p> <p>The plaintiff claimed title under a sheriff’s deed, dated the 13th day of June, 1870, executed to him as purchaser at a sale had by said sheriff, under an execution issued upon a judgment in favor of Jesse McMinn, against C. F. Townsend and others; and the defendant, for his defence, relied upon a deed executed to him by said Townsend, dated the 10th day of June, 1866. The following issues were submitted to the jury:</p> <p>“ 1. Is the plaintiff the owner of the land in controversy?</p> <p>“2. Was the defendant in the wrongful possession of said land, when the action was brought?</p> <p>“3. What is the plaintiff's damages?”</p> <p>It was admitted that both parties claimed under C. F. Townsend, and that J. H. Ripley was the only heir-at-law of J. W-Ripley, now dead, and that Mary Ripley was the regularly appointed guardian of the said J. H. Ripley; and that the defendant claimed under a deed executed by C. F. Towusend to Isaae Arledge, dated June 10th, 1866, which was put in evidence.</p> <p>The plaintiff, in support of the title of her ward, offered in-evidence a deed from T. W. Taylor, sheriff, to J. W. Ripley,, reciting a judgment and execution, in the case of Jesse MeMinn v. C. F. Townsend and others, for $269.60. The defendant objected to the introduction of the deed, but the Court admitted it, reserving the question as to its effect, till the plaintiff should offer the record of the judgment, &c., recited therein, which the plaintiff proposed to do. The defendant excepted to the evidence. The Clerk of the Superior Court was introduced as a witness, and testified that he was Clerk, and that the papers then offered in evidence by the plaintiff, were records of the Superior Court of Henderson county, on file in his office. The first record offered in evidence, was the judgment in the case of Jesse MeMinn v. O. F. Townsend and others, for $269.60, with interest on $250, from April 1st, 1861, rendered at the Spring Term,. 1861, of the Superior Court of Henderson county.</p> <p>Several executions, issued at various intervals, were then offered, some of which were levied upon the lot in question, but in each case, the benefit of the levy was lost byfi. fas., subsequently issued, until 1866, when an execution was issued on the 30th day of March of that year, tested of the Fall Term, 1865, and returnable to Spring Term, 1866, which the sheriff returned levied upon the lot in controversy, on the 12th of May, 1866.</p> <p>The next evidence offered, was an entry on the execution docket, showing that a ven. ex., with a fi. fa. clause, had been issued from Fall Term, 1867, returnable to Spring Term, 1868, ■and issued on the 1st day of January, 1868, reciting a levy on the lot in question, and on three hundred acres of land, lying on the French Broad river. On the execution the sheriff returned, ■“ Suspended by Ordinance of Convention.”.</p> <p>The plaintiff then offered a memorandum on the judgment, in these words: “ Alias ven. ex. and fi. fa., issued to Spring Term, 1870, dated 19th February, 1870,” and also an entry on the return of the said process, in the following words, to-wit: "“Sold C. F. Townsend’s interest as described i-,n this fi. fa., in a bouse and lot in the town of Hendersonville, on the 3rd day of June, 1870, to J. W. Ripley, he being the last and highest bidder, at the sum of $499.75, apply on this fi. fa. $400.65, balance applied on other executions.” (Signed) T. W. Taylor, ■sheriff.</p> <p>Mr. Pace, the Clerk of the Court, then testified that the ven-■ditioni exponas, under which the sale was made in 1870, was regularly issued by him, according to the recitals in the deed, and was returned by the sheriff, with the indorsements entered of re-cord, and put in evidence as given above. That the said ven. ex. ■could not now be found in the office, after diligent search, and according to the recollection of the witness, he last saw it when he gave it to the defendant Arledge, to be examined by his counsel in another action then pending, in which Arledge was plaintiff. There was a good deal of evidence offered on the trial, upon the question whether the judgment under which the plaintiff claimed title, had been satisfied before the sale by the sheriff. There was a motion for a new trial, which was overruled. There was no exception taken to the charge, of the Court, nor was there «ny request for additional instructions to the jury by defendant’s counsel.</p> <p>There was judgment for the plaintiff, and the,defendant appealed.</p>

This was a civil ACTION, tried before Graves, Judge, at the July Term, 1885, of the Superior Court of Bockingham county.

<p>Notice — Mortgage—Decree for a. Sale.</p> <p>1. Where a case has been heard in the Supreme Court, and certified to the Court below to proceed with according to law, no notice is necessary of a motion for judgment in conformity with the certificate. There is no necessity for notice, when the ease comes on for trial at a regular term of the Court.</p> <p>2. Under the terms of a contract to buy laud, the vendee was to have the title conveyed to her upon the payment of a certain portion of the purchase money, at a future day, and then execute a mortgage to the vendor to secure the residue, the payment of which was still further deferred. Litigation arose as to the amount which had been paid upon the first instalment, and the demand of the vendor was considerably reduced. It was held, that the entire time of credit having expired, the vendor was entitled to a decree of sale, the vendee not tendering the balance of the amount ascertained to be due.</p> <p>(Clayton v. Jones, 6S N. C., 497; University v. Lassiter, 83 N. C., 38; Stone v. Latham, 68 N. C., 421; Erwin v. Lowery, 64 N. C., 321, cited and approved).</p>

Motion to continue an injunction to the hearing, in a cause pending in the Superior Court of Brunswick county, heard by MaoBae, Judge, at Chambers, in Lumberton, on April 14th, 1885., His Honor refused to continue the tiff appealed. injunction, and the plain— The facts appear in the opinion.

Motion to continue an injunction to the hearing, made in a cause pending in the Superior Court of Brunswick county,, heard before MacRae, Judge, at Chambers in Lumberton, April 14, 1885. The facts appear in the opinion. His Honor granted the motion, and the defendant appealed.

<p>Civil action, tried before Oudger, Judge, at Spring Term, ] 885, of Onslow Superior Court.</p> <p>The plaintiff' in his complaint alleged.</p> <p>I. That Geo. J. Ward and Robert White, both of the county of Onslow, and both now dead, were on the 18th day of May, 1877, and for a longtime before, since the 3rd November, 1856, indebted to Williams Humphrey, now long since dead, by a note, a copy of which is as follows :</p> <p>“$3,471.50. One day after date, we or either of us, promise to pay to Williams Humphrey, or bearer, three thousand four hundred and seventy one dollars and fifty cents, for value received. Nov. 3rd, 1856.</p> <p>(Signed) G. J. Ward, (Seal.)</p> <p>“ Robt. White, (Seal.)”</p> <p>II. That the said George J. Ward, died some time during the early part of the year A. D., 1860, leaving a last will and testament, in which are named three executors, but of whom only one, the plaintiff is informed and believes, the defendant Richard W. Ward, has ever acted or qualified as such executor, and has acted as such ever since the said last will was admitted to probate, some time in the year 1860.</p> <p>That the said Williams Humphrey died some time during the year A. F>. 1865, leaving a last will and testament, of which Lott W. Humphrey and D. A. Humphrey, sons of said Williams Humphrey, are the executors.</p> <p>III. That the aforesaid Robert White, died intestate, sometime during the year A. D. 1867, and Jasper Etheridge was, as plaintiff is informed and believes, appointed his administrator, by the Court of Pleas and Quarter Sessions of Onslow county, some time during the year 1867, and said Etheridge acted as such administrator, until his death, some time in December, 1876, and after the death of said Etheridge, the defendant Henry Sandlin, Jr., was appointed administrator de bonis non, of the said Robert White.</p> <p>IV. That the plaintiff, and one Silas W. Venters, had given their two joint and several notes to said White, dated the 9th day of January, A. D. 1866, each for one thousand dollars, and payable, the one of them nine years after date, and the other of them ten years after date, which notes were unpaid at the death of said White, and which still remain unpaid, but which the said Etheridge alleged were not found among the papers and effects of said White, and which have thus far not been forthcoming.</p> <p>VI. The plaintiff avers, upon information and belief, that the said Robert White, died very little indebted, if at all, otherwise than by said Williams Humphrey note, and the entire assets of the estate of Robert White, other than the two notes given by the plaintiff and Silas W. Venters to said White, and which remain unpaid as mentioned in Article IV of this complaint, if they are available as assets, will not exceed, if they should equal in value, one hundred dollars. '</p> <p>VII. That at Spring Term, 1877, of the Superior Court of Onslow county, the said Lott W. Humphrey, who is a lawyer, a very intelligent business man, and who has ever been the activfe executor of his father, the said Williams Humphrey, offered to sell to the plaintiff, the said Williams Humphrey note. The negotiation, treaty or bargaining which finally resulted in the sale of said note to plaintiff, was conducted entirely and solely on the one side by the said Lott W. Humphrey, and on thé other by the plaintiff. In the progress of it, the said Humphrey held out to plaintiff, as an inducement to purchase it, the great advantages the ownership of said note would give the plaintiff, as a debtor on the two notes given by the plaintiff and Venters to Robert White, and his ability to hold said claim, as a debt of the estate of Robert White. Influenced by this inducement, the plaintiff concluded with Lott W. Humphrey, a bargain for the purchase of said note, which agreement or bargain was to this effect: Lott W. Humphrey was then to cause to be passed or transferred to the plaintiff, the ownership of the note mentioned in said Article I, free and unincumbered, and, in consideration thereof, the plaintiff agreed to give his note for seventeen hundred and fifty dollars.</p> <p>That after this bargain was concluded, and on the same day, and before the execution of his note to Humphrey, he requested him, as a favor, to execute an agreement not to sue the executor of George J. Ward on the Humphrey note. The said L. W. Humphrey assured the plaintiff that the agreement would not amount to a release or discharge of either party to said note, and the plaintiff could, notwithstanding its execution, hold and use it as a set-off against the note the administrator of White held against him and Venters. Influenced by this assurance and advice, he consented to execute the agreement, as a favor to said Humphrey, believing, as he had been informed, that the estate of Ward was insolvent. The agreement was in the following words and figures:</p> <p>“ Whereas, I have purchased of D. A. and Lott W. Humphrey, executors of Williams Humphrey, a note of which the following is a copy :</p> <p>“$3,471.50. One day after date, we, or either of us, promise to pay to Williams Humphrey, or bearer, three thousand four hundred and seventy-one dollars and fifty cents, for value received. (Signed), G. J. Ward, (Seal).</p> <p>Robert White, (Seal).</p> <p>Nov. 3rd, 1856.</p> <p>“I hereby covenant not to sue the executors of George J. Ward'thereon, this 18th day of May, 1877.</p> <p>(Signed), D. E. SaNdeiN, (Seal).”</p> <p>That there was no consideration whatever for this agreement, it was given purely as a favor to said Humphrey; that none of the parties intended that the instrument should, or could operate as a release to either White’s or Ward’s estates; that it was done in great haste, during court week, and either through surprise, ignorance or mistake, fails to carry out the intentions of the parties. Lest, therefore, the instrument should be held to be a release to the administrator of White, and thereby defeat plaintiff’s recovery upon the Humphrey note, he invokes the aid of the equity jurisdiction of the Court, that it be adjudged that the instrument purporting to be a covenant, be delivered up and cancelled, and be declared by the Court to be a nullity, or reformed, so as to carry out the intentions of all parties thereto; and for such other relief as the premises may warrant.</p> <p>The defendant Sandlin was removed from the office of administrator of Robert White; and-Sandlin, appointed in his place, was permitted by the Court to make himself party defendant, and allowed to file an answer. The defendants all filed answers to the complaint, at very great length, admitting some of the allegations therein, and denying others. They admitted that Ward and White executed the note to Humphrey, but that White was only surety in the same. They pleaded the presumption of payment from the la|>se of time, and that the action on the note' was barred after seven years, under The Code. The case was not submitted to a jury, and no evidence adduced in support of any of the allegations or denials in the pleading. But the Court dismissed the action, because the complaint did not contain facts sufficient to constitute a cause of action; and the plaintiff appealed.</p>

Civil action, tried before Mao Rae, Judge, and a jury, at January Term, 1886, of the Superior Court of Cabarrus county. There was a verdict and judgment for the plaintiff, and the defendants appealed. The facts are fully stated in the opinion.

<p>Jurisdiction of the Clerk — Amendments—Appeal.</p> <p>1. Where, in special proceedings, the pleadings are made up before the Clerk, and upon joinder oí issues are transferred to the Court in Term, the Judge has power to allow amendments, or he may stay the trial and remand the papers to the Clerk, in order that he may consider a motion to amend.</p> <p>2. In such case, an order remanding the papers to the Clerk, in order that he inay hear a motion to amend the pleadings, to the end that an aecountshould be taken, is interlocutory and does not impair a substantial right, and cannot be appealed from.</p> <p>(Brittain y. Mull, 91 N. C., 498; Wharton y. Wil/cerson, 92 N. C., 407; Jones y. Desern, 94 N. C., 32, cited and approved).</p>

Motion in a cause, heard before Clark, Judge, at August Term, 1885, of the Superior Court of Wake county. After the dismissal of the former appeal of the plaintiff, for the reason that it was prematurely taken, in the midst of ari unexecuted order of reference, 86 N. C., 415, the cause was recommitted to the same referee, .and he was directed to proceed under the former order. The general facts are stated in the report in that appeal, and do not require repetition.

<p>-Civil ACTION, for the recovery of land, tried before MacRae, Judge, and a jury, at Fall Term, 1885, of the Superior Court of Ashe county.</p> <p>The facts appear in the opinion.</p> <p>There was a verdict and judgment for the plaintiffs, and the defendants appealed.</p>

<p>Exceptions to Report of Referee — Scale,</p> <p>1. Where, in this Court, a reference is made to the Clerk to state an account, an exception will not be heard upon a motion to confirm the report, which was not taken in the Court below, nor on the first hearing in this Court. ' •</p> <p>2. Although such exception cannot be taken, yet if the Court can see from the report, that it acted, under a misapprehension of the facts in the first hearing, it will ex mero motu modify its ruling, when it is plain that it will work great injustice,</p> <p>3. Where a fund was paid to an administrator in Confederate money, out of which fund he makes payments to the distributees; It was field, that it would be unjust to apply the scale to the amount received by the administrator, but. not to apply it to payments made out of the very fund to the distributees. ( White v Clark, 82 N. C., 6; Williams v. Kivett, Ibid., 110; State v. Hinson, Ibid., 597; State v. Hardee, 83 N. C., 619, cited and approved).</p>

This was a uiotiqu for judgment and writ of restitution, in an action pending in the Superior Court of McDowell county, heard by Avery, Judge, at the Spring Term, 1885, of said Court. A judgment had been rendered in the same action, at Spring Term, 1882, of the Court, under which the defendant was turned out of possession of a tract of land in contention between the parties-, and had been compelled to pay twenty dollars.

Civil action, tried before Avery, Judge, at Fall Term, 1885, of the Superior Court of Mitchell county. This action was begun on the second day of November, 1883.

<p>Husband, and wije — Dixoree—Condonation—Agreement to live separate.</p> <p>1. If the wife commit adultery, and the husband afterwards lives with her, and keeps up the connubial relations, a divorce will not be granted.</p> <p>3. Whether deeds for separation between husband and wife, are against public policy and void in this State, queers. It would seem, that under §1831 of The. Code, they are valid for some purposes at least, but even if they are void, while the Courts may refuse to carry them out, they will not undo any act of the parties which they may have done for this purpose.</p> <p>3. The rule that the Courts will never aid a party, when the contract is contra bonos mores, is only departed from, when oppression, imposition, hardship, undue iufluenee, or great inequality of condition or age is shown.</p> <p>4. Where a husband and wife executed a deed of separation, a part of the consideration of which was, that the husband should relinquish his estate by the curtesy in a part of the wife’s land, and that she should convey another portion of her land to a trustee for him in fee, which was done, the wife cannot maintain an action to have her deed to her husband’s trustee cancelled, on the ground that the deed of separation was against public policy, in the absence of any undue influence or oppression exercised by the husband to obtain the deed.</p> <p>(York y. Merritt, 77 N. C., 313; Same case, 80 N. C., 385; PlneltsUm v. Brown, 3 Jones’s Eq., 494; Wright v. Gain, 93 N. C., 296, cited and approved; Collins v. Oollins, Phil. Eq., 153, doubted).</p>

Civil ACTION, tried before Gudger, Judge, and a jury, at Spring Term, 1885, of the Superior Court of BladEN county.

This was a proceeding begun before the Clerk of the Superior Court, in the nature of a motion in the cause, by petition for the removal of John W. Wadsworth, administrator of Chauneey Bennett, deceased.

Civil ACTION, tried before Philips, Judge, and a jury, at Fall Term, 1885', of the Superior Court of WarreN county. There was a verdict and judgment for the plaintiff and the defendant appealed.

Civil action, tried before Philips, Judge, and a jury, at Spring Term, 1885, of the Superior Court of GaSTON county. This action'is brought for an alleged breach of the official bond of ’the defendant sheriff. It is alleged in the complaint, and denied, in the answer, that the relator was and is a corporation, duly created and organized under the laws of this State, authorizing the creation of corporations for specified purposes.

Civil ACTION, pending in the Superior Court of Iredell ■county, heard by consent, by MctcRae, Judge, on a case agreed, at Chambers in Salisbury, on February 18th, 1886.

Civil ACTION, tried before Avery, Judge, and a jury, at Fall Term, 1885, of the Superior Court-of LeNoir county. On the 9th day of September, 1878, the defendant executed his note under seal to R. W. King, and therein covenanted to pay him or his order, the sum of one thousand dollars, with interest from date at the rate of eight per centvm per annum.

<p>Contract — Parol Evidence to Vary.</p> <p>1. Parol evidence is not competent to engraft on a contract which has been reduced to writing, other terms and conditions, contemporaneously made, except where the contract was comprehensive, and a part of it only was reduced to writing and it was not intended to include the entire contract.</p> <p>2. Where the defendant entered into a contract to make title to the plaintiff to a tract of land, described by meets and bounds, upon the payment of certain notes, and the plaintiff executed his notes to the defendant, recitingthat they were for the purchase money, the defendant cannot show by parol evidence that at the time the contract was made, it was agreed by parol that the land should be surveyed, and if found to contain a larger number of acres than was supposed, that the vendee should pay an additional sum.</p> <p>{Tmdy v. Sanderson, 9 Ired., 5 ; Manning v. Jones, Busb., 368; Kerohner v. Mac-Sae, 80 N. C., 219; Pramdl v. Pope, 82 N. C., 57; Sñeirill v. Sagan, 92 N. C., 345; Pay v. Blackwell, at this Term ; Mheridge v. Palin, 77 N. C., 213 ; Wilson v. Sandifer, 76 N. C., 347, cited and approved).</p>

<p>Motion by the plaintiff to re-instate an appeal on the docket of this Court, heard at February Term, 1886, of the SUPREME Court.</p> <p>The appeal was dismissed at the last Term, because the record had not been printed.</p> <p>The petitioner represents that a judgment was rendered against him in favor of defendant, at the October Term, 1885, of Meck-lenburg Superior Court, from which he took an appeal to this Court, and all the necessary steps, under the law and rules of this Court, were taken to perfect the same, and it was duly docketed in this Court.</p> <p>That he was a plain farmer, and knew nothing about the rules requiring the record to be printed. That he employed a lawyer who practiced in this Court to represent his interest on the appeal, and was promised by him that he would do so; that he iully supposed if anything more was to be done, than what had leen done, or should be required, that his counsel would notify lira of the same; and the petitioner further states, that- had he leen notified of any rule requiring the record to be printed, he would promptly have caused the same to be done. But he never ■eceived such notice, and was greatly surprised when he learned rom reading the certificate sent down to the Superior Court, hat his appeal had been dismissed on account of the failure to have the record printed. He further represents, that he is-advised and believes, that he has .meritorious grounds of appeal, and he now avers his willingness and ability to comply with the-rule of this Court in this behalf. Wherefore he prays that his appeal be reinstated upon the docket of this Court.</p>

Civil ACTION, heard upon exceptions to the report of a referee, by Graves, Judge, at Spring Term, 1884, of the Superior Court of Buncombe county.

<p>Civil ACTION, tried before Gilmer, Judge, and a jury, at January Special Term, 1886, of the Superior Court of DurhaM County. ,</p> <p>The substanee of this case., as presented by the record, is this: The plaintiffs allege, that George W. Trice, now deceased, in his lifetime, executed and delivered to the plaintiffs Martha Burgess formerly, and at the time of such delivery, Williams, and Joseph J. Williams, her son, a deed, whereby he conveyed to them the tract of land described in the complaint, which deed not having been registered, was lost. This action was brought against the heirs-at-law and the administrator of the said Trice, to compel the heirs to execute and deliver to the plaintiffs last mentioned, a proper deed, in place of that lost. The defendants mentioned made no defence.</p> <p>In the course of the action, the' other defendants, upon their application to the Court, suggesting that they had an interest in it, wer.e made parties, and allowed to plead. In their answer, they allege that the said administrator brought his Special Proceeding in the Superior Court of the county of Wake, to sell the land in question to make assets to pay debts of his intestate— that therein a decree was duly entered, directing a sale of the land — that a sale thereof was made, and they became the purchasers — that this sale was reported to, and confirmed by the Court, and title to the land was duly made to them. They further allege, that the plaintiffs have no interest whatever in the land, and that moreover, they were proper parties defendant in the Special Proceeding mentioned, a.nd are bound by the orders and decrees therein, and estopped from setting up any claim to the land.</p> <p>The plaintiffs admit the Special Proceeding mentioned, and the sale of the land in pursuance of a decree therein made, and the purchase -thereof by the defendants last mentioned; but they allege that the Court did not, in that behalf, obtain or have jurisdiction of the plaintiffs, Martha Burgess, — then Williams, and Joseph J. Williams; that the latter was an infant, under twenty one years of age, pending that proceeding, and had no general guardian ; that no guardian ad litem was appointed for him, nor was summons duly served upon him. They further allege that the Special Pi’oceeding and the decrees and orders therein, were irregular and invalid, and demand that they he “vacated and set aside,” and that the purchasers of the land be declared trustees for them, &c.</p> <p>On the trial, the jury found in response to issues submitted to them, that the said Trice did execute and deliver to the plaintiffs, Martha and Joseph J. Williams, a deed for the land in question, as alleged ; that this deed, not having been registered, was lost; that the plaintiff Joseph J. Williams became twenty one years of age, on the 3rd day of January, 1884, after the termination of the Special Proceeding mentioned ; and that at the sale, the purchasers of the land had notice of the claim of the plaintiffs under the lost deed mentioned.</p> <p>The plaintiffs put in evidence on the trial, a transcript of the record of the Special Proceeding mentioned, from which it appeared that a summons was issued in the proceeding against the plaintiff’s Martha, and Joseph J. Williams, and the same was served upon them by the sheriff and return thereof made. The said Joseph J. was not described in the summons, or in any part of the record, as an infant.</p> <p>It appears that the Court, “ being of opinion that he could render no judgment in the premises, declaring the judgment of the Superior Court of Wake county to have been irregularly rendered, and that the same should be set aside; declined to render any judgment, but continued the cause until the plaintiffs should take the proper steps in Wake Superior Court to have said judgment declared irregular and set aside.” To which ruling both parties, plaintiffs and defendants, excepted, and appealed to this Conrt. This is the plaintiffs appeal.</p>

Civil, action, tried before Avery, Judge, and a jury, at Spring Term, 1885, of the Superior Court of HaRNETT county. This action was upon a bond for payment of a sum of money, made by the feme defendant, then Virginia McNeill, since married to S. W. Withers, of the following tenor: ■$259.77.

<p>Civil action, tried before Montgomery, Judge, and a jury, at August. Term, 1885, of the Superior Court of Rowan county.</p> <p>Michael Rostían died in the year 1850, leaving a will, in the second clause of which he devises certain of his real estate as follows:</p> <p>II. “I wish my execntor to pay all my just debts out of my pei’sonal estate, and funeral expenses; and I give and bequeath to my son Audren A. Bostian, my plantation I now live on, with all the appurtenances thereunto belonging; provided he maintain his mother during life comfortably, and shall give her houseroom and firewood, and all necessaries of life, during her life or widowhood; if she marries, he shall be free from the above maintenance.”</p> <p>The devisee took possession of the land, and supported his mother until his death in 1869, when the plaintiff voluntarily removed her to her own house, and has eared for and maintained the said Christina ever since, and until her death in April, 1884, receiving during the interval, all the rents and profits of the devised land. This was done by the plaintiff of her own accord, and not at the instance of the defendant P. A. Sifford, administrator of the intestate devisee, A. A. Bostian, or of any other defendant, nor had the plaintiff made demand on them for means of supporting the said Christina, or for other compensation than that derived from the land. In the year 1882, the defendant Harvey Sloop, who had intermarried with the defendant Charlotte, the daughter and only heir-at-law of the intestate A. A. Bostian, to whom said land had descended, proposed to the plaintiff to take her to his house and support her, which the plaintiff refused to accede to, because she was unable to be removed.</p> <p>The present action, under the amended complaint, is prosecuted to establish the plaintiff’s claim for compensation for such maintenance, in excess of'what has been received, and the amount thereof, to charge the land therewith, and for its sale, if necessary, to the satisfaction of her demand. The answer denies the claim against the personal estate of the devisee, or as a charge upon the land, and also sets up the bar of the statute of limitations to its enforcement, for a longer period than three years before the institution of the suit, on May 5th, 1884.</p> <p>The Court was of opinion, and so ruled, that there could be no recovery for the plaintiff’s services and outlay, for a period beyond three years; that for two of those years she could not sustain her claim, because of the refused offer made by defendant Harvey, to maintain and take care of said Christina; and further, that, upon the averments in the complaint and the proofs, the plaintiff’s undertaking and expenditure being voluntary and officious, no obligation for remuneration had been incurred, for which the defendants personally were liable, or the devised land chargeable. In submission to' this ruling, the plaintiff suffered a non-suit, and appealed to this Court.</p>

Special Proceeding, heard on appeal from an order of the* Clerk, by MaeRae, Judge, at Chambers in Mobganton on May 28, 1885. This is a Special Proceeding, brought by the plaintiff in the-Superior Court of Burke county, to obtain dower.

Civil action, heard before Montgomery, Judge, upoo exceptions to the report of a referee, at Pall Term, 1885, of the Superior Court of Iredell county.

<p>Contributory Negligence — Railway Crossing.</p> <p>1. Where the plaintiff's negligence contributes to the injury of which he complains, and for which he seeks to he compensated in damages, he cannot recover; and the same rule applies when it is shown that both parties are in fault.</p> <p>8. Where highways cross railways, the law requires a reasonable degree of care and diligence in both the public and the corporation in the use of the crossing, and negligence in the corporation will not excuse a traveller approaching the crossing, from using that degree of care and circumspection, necessary to secure his safety.</p> <p>3. Where a traveller is approaching a railway crossing, with an unobstructed view of the track in both directions, it is his duty to look both ways, and if he attempts to cross in front of an advancing train, and receives injury, he cannot recover, and the failure of the engineman to give the precautionary signal, when it does not contribute to the accident, does not impose a liability on the corporation.</p> <p>4. Although a person injured by a railroad train, be in fault to some extent, yet he can recover, if the injury could not have been avoided by ordinary care on his part.</p> <p>5. Railroad corporations are not required to stop their trains, when a vehicle is seen by the engineman approaching a crossing in order to allow it to pass the track in front of the train.</p> <p>6. Negligence can be attributed to a railroad company, only when it has notice of the emergency, in time, by the use of ordinary diligence, the means being at hand, to avoid the accident.</p> <p>(Parker v. The Railroad Go., 86 N. C., 221; Manly v. The Railroad Co., 74 N. C., 655; Wilson v. The Railroad Go., 90 N. C., 69, cited and approved).</p>

Civil action, tried before Ciarle, Judge, at August Term, 1885, of the Superior Court of Wake county. The facts are as follows: The plaintiff, the surviving wife of William Morris, with whom she had intermarried before the late civil war, on his death, ■in 1882, instituted the present action against the defendants, his •■administrator and heirs-at-law.

Civil action, heard upon demurrer, by Avery, Judge, at Spring Term, 1886, of the Superior Court of CLEVELAND county. The complaint was as follows: “The plaintiffs complain and allege: 1.

<p>Civil ACTION, tried before McKoy, Judge, and a jury, at August Term, 1884, of the Superior Court of Mecklenburg county.</p> <p>There was a verdict and judgment for the plaintiff, and the defendant appealed.</p> <p>The facts appear in the opinion.</p>

Civil action, tried before Shepherd, Judge, and a jury, at January Term, 1886, of the Superior Court of Halifax county. There was a verdict and judgment for the plaintiffs, and the defendants appealed. The facts appear in the opinion.

Proceeding to procession land, beard on appeal from the Clerk, before Connor, Judge, at Fall Term, 1885, of the Superior Court of Bertie county. The plaintiff appealed. The facts upon which the appeal was disposed of in this Court, appear in the opinion.

Petition to re-hear, heard at February Term, 1886, of the Supreme Court. The case is reported in the 92 N. C., 547, and the petition was filed by the plaintiffs.

Civil ACTION, tried before Phillips, Judge, at Fall Term, 1885, of the Superior Court of WarreN county.

Civil ACTION, tried before Shipp, Judge, and a jury, at Pall Term, 1884, of the Superior Court of Mecklenburg county.

Motion by the plaintiff to re-instate an appeal on the docket,, dismissed at the last Term because the record was. not printed, heard at February Term, 1886, or the Supreme Court.

Civil action, tried before McKoy, Judge, and a jury, at Fall Term, 1884, of the Superior Court of Rutherford county. The plaintiffs, on the 16th day of August, 1877, executed their two joint notes under seal, in the aggregate sum of $335, to the partnership firm of A. R. Nesbit & Bro., which consisted of the defendants A. R. Nesbit, W. B. Nesbit, and W. J. Friday, in renewal of an indebtedness, before contracted by the plaintiff A. B. Ware.

Civil action, tried at Fal'l Term, 1885, of the Superior Court for Bertie county before Connor, Judge. Held: and the residuary legatee excepted. The Court advised and directed, that the bonds mentioned belonged to William- J. Holly, and that the rent for the Fishery passed to the devisee, Thomas D. Holly, and the residuary legatee appealed to this Court.

Motion to continue a restraining order to the hearing, in a case-pending in the Superior Court of NORTHAMPTON county, heard by Phillips, Judge, at Chambers in Jackson, on October 16th, 1885.

Civil action for the recovery of land, tried before Gudger, Judge, and a jury, at Fall Term, 1885, of the Superior Court of Buncombe county.

Issue OK devisavit vel non, tried before Gilmer, Judge, and a jury, at Fall Term, 1885, of the Superior Court of Chatham; county. The propounders, the plaintiffs of record, appealed. The facts appear in the opinion.

This was a motion to appoint a receiver of the personal ami real estate of William C. Faucette, deceased, heard before Gil-mer, Judge, at Fall Term, 1885, of Chatham Superior Court.

Motion to set aside a judgment for surprise, &c., heard before MacRae, Judge, at November Civil Term, 1885, of the Superior Court of Cumberland county. The plaintiff recovered judgment against the testator of the defendant Virginia B. Swepson, for want of an answer, at May Term, 1877, of Cumberland Superior Court.

Civil ACTION, heard by MacRae, Judge, at Chambers, on April 24th, 1884. The action was instituted to perpetually enjoin the defendants, commissioners, from levying certain taxes for the support of schools. His Honor refused to continue the restraining order to the hearing, and the plaintiffs appealed. The facts fully appear in the opinion.

<p>Civil ACTION, heard on exceptions to the report of a referee, before Graves, Judge, at January Special Term, 1885, of the Superior Court of NORTHAMPTON county.</p> <p>The defendants appealed.</p> <p>The facts are fully stated in the opinion.</p>

<p>Motion heard in a cause jiending in the Supreme Court, at February Term, 1886.</p> <p>The facts appear in the opinion.</p>

Civiu ACTION, tried before Clark, Judge, at August Civil Term, 1885, of Wake'Superior Court. A jury trial was waived, and it was agreed between the parties that his Honor should find the facts; and upon the evidence offered and the admission of the parties, his Honor found the following facts, viz: “ 1. That the plaintiff is, and at the dates hereinafter mentioned was, a corporation duly created and existing according to law. “2.

Civil ACTION for the recovery of land, tried before MacRae, Judge, and a jury, at Fall Term, ^885, of the Superior Court of RobesON county.

Civil ACTION, tried before Avery, Judge, at SpriDg Term,, 1884, of the Superior Court of NORTHAMPTON county. The defendant appealed. The facts are fully stated in the opinion.

Civil action, tried on appeal from a Justice of the Peace, before Montgomery, Judge, and a jury, at Fall Term, 1885, of the Superior Court of Ibedell county.

Civil ACTION for the recovery of land, in nature of ejectment, tried before Ciarle, Judge, and a jury, rat August Civil Term, 1885, of Wake Superior Court. The plaintiffs alleged that they were the owners in fee of the tract of land described in the complaint, as the heirs of Sarah Johnson, who died seized in fee of the same, and that the defendant is in possession thereof, and wrongfully withholds the same.

Civil ACTION, for the recovery of land, tried before Gudger, Judge, and a jury, at August Term, 1885, of the Superior Court of BuNCOMBL county. The facts appear in the opinion. There was a verdict and judgment for the plaintiff, and the dafendant appealed.

Civil action, heard on motion before Avery, Judge, at Spring Term, 1884, of the Superior Court of NORTHAMPTON county. This action was brought to the Spring Term, 1881, of the Superior Court of Halifax county.

<p>Evidence — Estoppel.</p> <p>1. An ex parte survey of the line in dispute, in the absence of the parties, and not ordered by the Court, is admissible in evideuce, as tending' to show where the line is.</p> <p>2. When a line from “the Alder Spring to a post oak ” has been fixed by the verdict of a jury, rendered in 1874, as the true line between the parties, and the location of the post oak being known, the only question on this trial was the location of the Alder Spring, as fixed by the verdict of 1874; Held, that the location of a white oak called for in a grant, issued in 1803, was inadmissible, the Alder Spring not being called for in this grant nor in any other grant or deed which was used in the trial in 1874, when the verdict was rendered.</p> <p>3. The defendant offered to prove, by his own testimony, the contents of a paper writing executed in 1859, whereby plaintiff and one Logan (whose estate defendant owned) agreed to submit the controversy, in reference to this line, to arbitration, and to show the loss of this paper, proved that it was deposited with one Penly for safe keeping, who, upon beiDg applied to for it, said it was • lost; that said Penly was summoned as a witness, but had changed his residence to another State ; Held, that this evidence was incompetent, because; 1st, the submission to referees was prior to the verdict of 1874, and, if it had any eifect, it would be to control or affect the verdict as an estoppel; 2nd before secondary evidence is admissible to prove the contents of a writing, its absence must be legally accounted for, and this is not done by showing the declaration of the party with whom it was deposited, that it was lost, or that he had removed his residence from this into another State.</p> <p>4. The report of the action of such referees is also inadmissible.</p> <p>{Harper v. Hancock, 6 Ired., 124; Threadgill v. White, 11 Ired., 591; McCracken v. McCrary, 5 Jones, 399, cited and approved).</p>

Motion to continue a restraining order to the hearing, in a case pending in the Superior Court of Durham county, heard before CLarh, Judge,… Held: and a favorable vote taken, pursuant to which a graded school was set up for the education of white-children only, to support which the taxes derived from white tax-payers were appropriated, while those from colored persons were distributed among the colored districts, which entered within the corporate limits of the town, in the…

Indictment for an. escape, tried before Meares, Judge, and a jury, at August Term, 1885,.of the Criminal Court of Meok-lenbueg- county. The defendant is charged with negligently permitting the escape of a prisoner, sentenced to imprisonment in the county jail, and under his care and control as guard.

<p>Indictment — Keeping Gaming-house — Appeal.</p> <p>1. The statute allows the defendant to appeal from any final judgment that may he rendered against him. This right is not forfeited by failing to appear at the trial term after verdict was rendered against him.</p> <p>2. A gaming-house is a house or room, kept by the owner or occupier for the purpose of inducing, or permitting persons to resort thither, and play therein at games of cards or other games for money or thing of value.</p> <p>3. It is not necessary to charge in express terms or to prove that the games played were games of chance.</p> <p>4. Nor is it auy defence that it is the defendant’s dwelling-house or sleeping chamber, if the facts are proved which constitute a gaming-house.</p>

INDICTMENT, tried before Clark, Judge, and a jury, at November Special Criminal Term, 1886, of Wake Superior Court. The defendant Lafayette Gay, and one Mary Patterson, were jointly indicted and tried for the offence of fornication and adultery. One Strickland, a State’s witness, testified that he had on several occasions seen the two defendants lying together on the same bed.

PETITION for a certiorari, heard at February Term, 1886, of the Supreme Court. The cause was tried before Clark, Judge, and a jury, at November Special Criminal Term, 1885, of the Superior Court of Wake county. To sustain his application, the petitioner states, that on his appeal, his counsel prepared the case containing his exceptions to the rulings of the Court, and submitted it to the Solicitor, upon whose objections it was laid before, and settled by the presiding Judge.

Indictment for an assault and battery, tried before Gilmer, Judge, at Spring Term, 1886, of Macon Superior Court.

Indictment, tried before Boyhin, Judge, at March Term, 1886, of the Superior Court of CUMBERLAND county. The State introduced one McBryde, who swore that he purchased from the defendant, in the year 1885, one quart of apple brandy, at a distillery one and a half miles from Little River Academy.

<p>Indictment — Escape—Evidence—Practice.</p> <p>1. When the original record is offered in evidence in the Court to which it belongs, it should be received. While in any other court, the proper mode of proving it, is by a duly authenticated copy, under the seal of the Court, yet the original, when present, is admissible, if competent.</p> <p>3.While not entirely orderly to take a submission during a trial o£ another action, yet the Court may do so, taking care that no injustice or prejudice is caused thereby to the party on trial.</p> <p>3. The Court is not required to give special instructions, unless there is evidence on which to base them.</p> <p>4. The Court charged the jury that it was the duty of the officer to use all legal means to safely keep the prisoner; that failure to put hand-cuffs on him, was not per se negligence, but the jury must decide whether in this case the failure to do so contributed to his escape, and whether the defendant had used due diligence in guarding the prisoner without them; Held to be no error.</p> <p>5. The Court further charged, that ordinarily, the burden of proof is on the State to the end of the case, but that in an indictment for an escape, this was changed, and when the escape was proved or admitted, the burden is shifted to the defendant, to prove that there was no negligence on his part, and that he had used all legal means for his safe keeping; Held, to be no error.</p> <p>(Wardv. Saunders, 6 Ired., 383; State v. Gollins, 3 Dev., 117; State v. Voight, 90 N. 0., 741; State v. Martin, 70 N. C., 638; State v. Pratt, 88 N. C., 639, cited and approved).</p>

INDICTMENT, for forgery, tried before Gilmer, Judge, and a jury, at Fall Term, 1885, of the Superior Court of OjRANG-e. eounty. The jury found the defendant guilty, and from an order of the Court arresting the judgment, the Solicitor, in behalf of the State, appealed.

Indictment, tried before Meares, Judge, and a jury, at April Term, 1885, of the Criminal Court of Mecklenburg county. The defendant, along with another, was indicted for forcible entry on the lands of one J. C. Baker.

<p>This was an indictment for obtaining goods by false pre-tence, tried before Graves, Judge, at Spring Term, 1886, of Ashe Superior Court.</p> <p>The indictment was as follows, to-wit: “The jurors for the State, upon their oath present, that Martin V. Mikle, late of the county of Ashe, at and in the county of Ashe, unlawfully and knowingly, devising and intending to cheat and defraud J. F. Motny and M. L. Motny, (trading under the name and style of Motny Bros.,) of their goods, money, chattels and property, did then and there, unlawfully, knowingly and designedly, falsely pretend to J. E. Motny and M. L. Motny, that Bob. B. Wilson had given to him, the said Martin V. Mikle, an order to get goods from J. F. Motny and M. L. Motny, trading under the name and style of Motny Bros., on the credit of him, the said Robert B. Wilson ; by reason of said false pretence, J. F. Motny and M. L. Motny, trading under the name and style of Motny Bros., did deliver to him, the said Martin V. Mikle, a lot of goods, to-wit: a pair of boots and other merchandise, to the value of four dollars. Whereas, in truth and in fact, the said Robert B. Wilson had not given the said Martin V. Mikle any order, either written or verbal, for said goods, as he, the said Martin V. Mikle, then and there falsely pretended, which said false pretence, he, the said Martin "V. Mikle, then and there -well knew to be false, by color and means of which said false pre-tence and pretences, he, the said Martin V. Mikle, did then and there unlawfully, knowingly, and designedly, obtain from the said J. F. Motny and M. L. Motny, trading under the name and style of Motny Bros., being then and there the property of the said Motny Bros., the boots and other merchandise as aforesaid, with intent to cheat and defraud the said Motny Bros, to the great damage of the said Motny Bros., contrary to form of the statute, &<.•„”</p> <p>On the trial, ***** Motny, a witness for the State, testified that the defendant came to his store, and represented to him that he, defendant, had obtained an order from one Wilson, to get goods on his- — -Wilson’s credit; that Wilson had told him — the defendant — to tell him — Motny—to let him — defendant — have some goods, and he — Wilson—would pay for them. That he did let him have the goods on said representation, and charged the goods to Wilson.</p> <p>Wilson, examined by the State, testified that he did not give to defendant any order upon Motny Bros, fdr goods, as testified to by Motny. That he had entered into a contract with defendant, to have him make some shingles for him, and he had promised him to pay in goods, at the store of Motny Bros., when the shingles should have been made; that, at the time the defendant obtained the goods, the shingles had not' been made, and he had not authorized the defendant to get the goods on his credit. That he understood that the defendant had begun to make the shingles, about three days after the goods were obtained, and made shingles enough to amount to seven dollars and fifty cents.</p> <p>The defendant was examined in his own behalf, and admitted that he did not have an order, but said he told Motny Bros, that he had a contract with Wilson, to make shingles, and that he had an understanding with Wilson, that he was to be paid for the shingles in goods at Motny’s store; that he obtained the goods from Motny Bros., but supposed he was getting them on his own credit, and that he afterwards made the shingles according to the contract.</p> <p>The ju.ty found the defendant guilty, and he moved for a new trial upon two grounds:</p> <p>1st. That the facts set forth in the bill of indictment, does not constitute an offence under the statute.</p> <p>2nd. That there was a variance between the allegations in the bill, and the proof.</p> <p>The motion for a new trial was overruled, and the defendant then moved in arrest of judgment, which was overruled by the Court, and the sentence of the law was pronounced against the defendant, from which he appealed.</p>

<p>Juror — Disqualification—Motion to Quash — Apt Time — Insanity at the time of the trial — Issues.</p> <p>1. The non-payment of taxes for the year preceding the first Monday in September, constitutes a disqualification to act as a juror.</p> <p>2. The objection to a grand juror, who acted in passing upon the indictment, based on such incapacity, taken in apt time and in proper manner, is fatal to the bill.</p> <p>3. The regular way of making the objection, when the facts do not appear in the record, is by plea in abatement, and if it appears on the face of the record, by a motion to quash, but in this State the distinction has not been held to be important, and a motion to quash in either case is permitted.</p> <p>4. This objection must be taken in apt time, or it will be waived, and apt time is before the prisoner has pleaded. So, where on his arraignment, it was suggested that the prisoner was then insane, and an issue as to his sanity at the . time was submitted to a jury, who found the defendant insane and incapable of making his defence, which verdict was set aside, and the cause continued, and, at the next Term, motions to remove the cause to another county, and for a continuance, were made and refused, and then the motion to quash was made, It was held, to be in apt time.</p> <p>5. A motion to remove a cause to another county, cannot be made until the party has pleaded, and the case is at issue.</p> <p>6. In such case, it is not necessary for the prisoner to offer evidence of the disqualification, if the Judge holds that the motion is too late', and refuses it on that ground alone.</p> <p>6. Where, upon his arraignment, it is suggested that a prisoner'is insane, and not capable of conducting his defence, the proper manner of procedure is to submit an issue to the jury, in order to ascertain this fact, and while there are precedents for submitting the issue as to guilt at the same time, the practice is disapproved.</p> <p>(Slate v. Johnson, 5 Ired., 221 • State v. Watts, 82 N. C., 656 ; States. Griffin, 74 N. C., 316; Stale v. Watson, 36 N. C., 624; Slate v. Liles, 77 N. C., 496; State v. Haywood, 73 N. C., 437 ; State v. Barbee, 93 N. C., 498 ; State v. Smith, 80 N. C., 410 ; Stale v. Baldwin, Ibid., 390 ; Slate v. Blackburn, Ibid., 474 ; State v. Reid, 1 D. & B., 377; State v. Swepson, 81N. O., 571; Stale v. Harris, 8 Ired., 136, cited and approved).</p>

Motion to quash a warrant issued by a justice of the peace, heard on appeal by Clark, Judge, at the November Special Criminal Term, 1885, of the Superior Court of Wake county.

MOTION to dismiss an appeal from a justice, ordering the defendant to enter in recognizances to keep the peace, heard before Graves, Judge, at Spring Term, 1884, of the Superior Court of Buncombe county.

Indictment for retailing liquor, tried before Gudger, Judge, at Fall Term, 1885, of the Superior Court of Macon county. The defendant was convicted, and there was judgment against him, from which he appealed to this Court. He was required to give a bond of fifty dollars on the appeal.

INDICTMENT for burning a mill, tried before Oilmen', Judge, and a jury, at Fall Term, 1885, of the Superior Court of CHAT-HAM county. On the cross-examination of one C. G. Howard, a material witness for the State, he was asked, in order to impeach him, if on one occasion, one Wiley Ellis’ pocket book was not found in his boot leg. The witness answered that it was, and on being asked how it came there, said, “ ask Mr. Ellis,” and refused to answer further.

INDICTMENT for an assault with intent to commit rape, tried before Meares, Judge, and a jury, at December Term, 1885, of the Criminal Court of Mecklenburg county. After the evidence for the State had closed, the defendant offered to submit to a verdict for a simple assault, which was agreed to by the State.

INDICTMENT por murder, tried before Montgomery, Judge, at Fall Term, 1855, of Iredell Superior Court. The prisoner was charged with the murder of Noah Mason, in the county of Iredell, on the first day of February, 1885. A.t the request of prisoner's counsel, ODe hundred names of jurors were drawn from the jury box of said couuty, in accordance with the provisions of §1739 of The Code.

This was a warrant issued by the mayor of the town of Durham, for violation of a town ordinance, and was carried by appeal to the Superior Court of Durham; county, when it was tried at the Fall Term, 1885, before Gilmer, Judge, and a jury. The defendant was found guilty, and from the judgment pronounced by the Court, appealed to the Supreme Court. The case is sufficiently stated in the opinion of the Court.

Indictment, tried before Clark, Judge, and a jury, at January Criminal Term, 1886, of the Superior Court of Wake county.

<p> Town Ordinances. </p> <p>1. Where a town ordinance provided that for c.ertain disorderly conduct, the offender might be fined by the mayor not more than five dollars : It was held, that the ordianee was void, because the amount of the fine was not fixed and definite.</p> <p>2. In such case, if the ordinance had imposed a fine of a certain amount, with power in the mayor or other police justice, to remit a portion thereof in his discretion, it would have been valid.</p> <p>(Commissioners v. Harris, 7 Jones, 281; látate v. Crenshaw, at this term, cited and approved).</p>

This was an indictment for any affray and mutual assaults and batteries, tried before Graves, Judge, at Spring Term, 1886, of Burke Superior Court. There was evidence offered on the part of the State, that Gas-ton Scott, who was also charged in the bill of indictment, and the defendant Harbison, were seen to come from behind the house where they both lived, the defendant Harbison running, with a pistol in his hand, and the defendant Scott pursuing him and firing at him.

INDICTMENT, tried before MacHae, Judge, and a jury, at Fall Term, 1885, of .the Superior Court of RICHMOND county. The defendant is charged with the wanton and wilful killing of a cow, belonging to one Seth Andrews, made an offence under the Act of December, 13, 1876, (The Code, §1082), as amended by the Act of February, 10, 1885, ch. 53.

Indictment for selling spirituous liquors to one Calvin Bethune, within five miles of Bethel church, in Richmond county, contrary to the provisions of the Act of 1881, ch. 234, tried before MacRae, Judge, at Fall Term, 1885, of Richmond Superior Court.

INDICTMENT, tried before Macliae, Judge, and a jury, at September Term, 1885, of the Superior Court of Richmond county.

Petition for a Certiorari, filed by the defendant at the February Term, 1886, of the Supreme Court The petitioner, charged in the indictment, which consists of five counts, with keeping a gambling house in the city of Raleigh, on his arraignment, entered his plea of guilty to the fourth count, and the solicitor entered a nolle prosequi to the others.

This was an INDICTMENT, tried before Ciarle, Judge, at January Criminal Term, 1886, of the Superior Court of Wake county. The indictment against the defendant consists of five counts, setting out the offence in different forms, to the fourth of which, when arraigned, he pleaded guilty, and a nol pros, was entered as to the others.

This was an appeal by the State in the foregoing case. After the defendant’s appeal from the judgment of the Court had been taken and perfected, the clerk after docketing it as directed, issued an execution to' the sheriff, to enforce payment of the fine and costs adjudged against him. Upon application to the succeeding Judge having jurisdiction in the District, it was ordered that the writ be recalled, and the sheriff proceed no further thereunder.

This was an INDICTMENT for an affray, tried before Montgomery, Judge, at Fall Term, 1885, of the Superior Court of Iredell county. The defendant being convicted, appealed from the judgment thereupon pronounced. The facts appear in the opinion.

This was an INDICTMENT for forgery, tried before McRae, Judge, at September Term, 1885, of the Superior Court of RICHMOND county. The defendant was indicted for forgery of an order, of which the following is a copy : Oct. 27th, 1884. Mr. B. T. Long, Please let Henry Carnione have 500 dollars and I will be in Monday and pay yon oblige yours J. M. Hawood.

This was an Indictment against the defendant, for not keeping a fence five feet- high around his cultivated field during crop season in the year 1885, tried before Meares, Judge, in the Criminal Court of New HanovER county, at the September Term,. 1885, of said court.

This was a CRIMINAL action, commenced in the Inferior Court of Bertie county, at August Term, 1885, of said Court, wherein the defendant was indicted for removing a crop, in violation of the provisions of §1759 of The Code.

This was au indictment for aD escape, tried before Clark, Judge, at January Criminal Term, 1886, of Wake Superior Court. The defendant, having the custody and control of a convict committed to the penitentiary for a felony, is charged in the indictment, with having unlawfully and negligently permitting him to escape and go at large.

INDICTMENT for larceny and receiving stolen goods, knowing them to have been stolen, tried before Shipp, Judge, and a jury, at July Term, 1885, of Alexandeb Superior Court. The indictment was preferred against the defendant Fox, and one Miller, and the defendant Fox was alone put on trial. The indictment contained two counts, the one for the larceny of a quart of whiskey, the property of one Hedrick, and the other receiving it, knowing it to have been stolen.

Indictment, tried before Phillips, Judge, and a jury, at Fall Term, 1885, of Halifax Superior Court. The defendant was indicted for burning a tobacco barn, the property of one T. R. Bowers, in September, 1885. There was á verdict of guilty, and judgment thereon, from which the defendant appealed.

INDICTMENT, commenced by a warraut returnable before the mayor of Raleigh, and carried by appeal to the Superior Court of Wake county, where it was tried before Clark, Judge, and a jury, at November Criminal Term, 1885.

Indictment for playing and hettiug at cards, heard before Graves, Judge, on a motion to quash, at Spring Term, 1886, of Caldwell Superior Court.

<p>Indictment — -Sending threatening letter — Motion to quash.</p> <p>1. The power to quash an indictment before defendant pleads, is not usually exercised unless the defect is gross and apparent, nor when the offence is of a heinous nature.</p> <p>2. Certainty to a certain intent in general, is all that is required in indictments; hut every thing should be charged, or made to 'appear by necessary implication, which is necessary to constitute the offence charged.</p> <p>3. Where the offence charged was the sending a letter under §989 of The Code, and the letter was set out in the indictment, from which it is deducible by necessary implication, that the defendant threatened to indict the prosecutor for an offence punishable by imprisonment in the penitentiary, with a view and intent to extort money; Held, that a criminal offence is sufficiently charged, and the indictment should not be quashed.</p> <p>(States. Baldwin, 1 Dev. &. Bat., 195, cited and approved).</p>

INDICTMENT for an affray, tried before Avery, Judge, and a jury, at Fall Term, 1885, of the Superior Court of Henderson county. The defendant and two others, Samuel P. Brittain and J. W. Brittain, of whom the latter died before trial, and a nol pros was entered as to the former, are charged with committing an affray, and mutually assaulting and beating each other.

Motion to dismiss the prisoner’s appeal, made and heard at the February Term, 1886, of the Supreme Court. The ease is sufficiently stated in the opinion of the Court.

This was an indictment for an assault and battery with a deadly weapon, and with intent to kill, tried before Gilmer, Judge, at Fall Term, 1885, of GRANVILLE Superior Court. There were several exceptions taken on the trial, to the ruling of the Court upon the admission of evidence. The main question involved, was as to the identity of the defendant.

INDICTMENT, tried before Macliae, Judge, and a jury, at December Term, 1885, of Richmond Superior Court. The charge in the indictment was, that the defendant, on the. 30th day of November, A. D., 1885, with force and arms and with a strong hand, did enter the dwelling house of one Margaret Ives, against the will of the said Margaret Ives, she being then and there present and forbidding him to do so, against the peace and dignity of the State.

Indictment for an assault and battery, tried before Phillips, Judge, and a jury, at Spring Term, 1885, of the Superior Court of Union county. The prosecutrix, Sarah R. Smith, being examined on the part of the State, testified in substance as follows: The difficulty occurred at her house, about a stolen cow, belonging to her, that the defendant said that some person had told him that she said he had stolen.

<p>jEvidence— Witness — Expert— Opinion.</p> <p>1. Where a prisoner was tried for murder hy poisoning, and at the time of the death, stated that the deceased had had a similar attach some years before, for which a certain physician attended her; It was held, that such attending physician could be allowed to give an account of such previous illness.</p> <p>2. Whether or not a witness is an expert, is a question of fact to be decided by the Court, and its finding' is conclusive, and not subject to review.</p> <p>3. Where a prisoner is accused of murder by poisoning with strychnia, it is competent to show that he bought some of this drug the previous year.</p> <p>4. An expert may be asked his opinion, based upon evidence already offered, if the jury shall believe sneh evidence. Such opinion must not be the positive opinion of the expert, founded upon his own observation and the testimony of others, but must be wholly contingent upon the facts, as the jury shall find them to be.</p> <p>^Flynt v. Bodenhamer, 80 N. C., 205 ; States. Sanders, 84 N. C., 728.; Staie v. Bfier, 85 N. C., 585; State v. Burgwyn, 87 N. C., 572; State v. Bowman, 78 N. C., 509, cited and approved. State v. Secrest, 80 N. C., 450 ; State v. Parish, Busb., 239, cited and commented on).</p>

<p>Burglary — Special Venire — Evidence—Abuse of privilege.</p> <p>1. A juror summoned on a special venire is qualified to serve, i£ lie be a freeholder.</p> <p>3. If a juror summoned on a special venire fails to answer, but his name is put in the hat and drawn therefrom, and being again called, he fails to answer a second time, this does not entitle the defendant to an additional challenge.</p> <p>3. What is evidence, and whether there is any evidence, are questions of law for the Court; what weight the evidence is entitled to, is a question of fact for the jury.</p> <p>4. If the evidence, considered as a whole, will not, in any just and reasonable view of it, warrant the verdict, then there is no evidence sufficient to he left to the jury, and the Court should so declare.</p> <p>5. If the evidence only raises a conjecture or suspicion of a fact, such fact should not be left to the jury.</p> <p>6. Counsel have a right to argue the law as well the facts to the jury, and in doing so, they may read adjudged eases, but the facts contained in such cases cannot be commented on as the facts of the case on trial.</p> <p>7. An exception that counsel abused his privilege in his address to the jury, will not be noticed in this Court, when not made in apt time.</p> <p>(Cobb v. Fogleman, 1 Ired., 440 ; Stale v. White, 89 N. C., 462 State v. Jones, 90 N. C., 702; Stale v. Atkinson, 93 N. C., 519 ; Stale v. Suggs, 89 N. C., 527; States. Bryan, Ibid, 531; Stale v. Garland,90 N. 0., 668 ; Borah v. Knox, 87 N. C., 483,. cited and approved ; State v. Xeely, 74 N. C., 425 ; State v. Massey, 86 N. C., 658, and State v. Mitchell, 89 N. C., 521, cited and commented on).</p>

<p>Motion by the Attorney General to dismiss the appeal, heard at February Term, 1886, of the Supreme Court.</p> <p>The defendant was convicted at January Term, 1884, of the Superior Court of Robeson county, before MacTlae, Judge, of the crime of- larceny,- and pending his appeal, escaped from custody.</p> <p>The appeal was continued from Term to Term in this Court, until the February Term, 1886, when the State moved to dismiss it.</p>

Motion by the Attorney General to dismiss the appeal under the same circumstances as the foregoing case. The defendant was convicted of murder, before Shepherd, Jvdge, at Fall Term, 1884, of the Superior Court of Richmond county, and escaped pending the appeal.

Indictment for rape, tried before Phillips, Judge, and a jury, at Spring Term, 1885, of the Superior Court of Union county. The defendant was convicted, and from the judgment of death pronounced, appealed.

<p>Case on Appeal — Certiorari.</p> <p>1. The action of the Judge in setting the case on appeal, when the parties cannot agree, is final, and cannot be reviewed by the Supreme Court.</p> <p>2. When counsel can agree upon a statement of the ease on appeal, both in criminal and civil actions, the Judge takes no partin its preparation, but when they cannot agree, the Judge settles the case on appeal, and does not merely adjust the diilerenees between the appellants’ ease and the specific objections filed by the appellee.</p> <p>3. Where it is made to appear to this Court, by proper ev'ideuce, that the Judge has made an omission or mistake in the settlement of the case on appeal, this Court will give him an opportunity to correct it, or to modify an inaccurate - statement; but where it appears that a full hearing has been accorded, and the action of the Court has been careful and considerate, no occasion for interference is presented.</p> <p>4. It is no objection to the objections filed by the appellee to the appellants’ case, that it is in the form of a counter-case, and not of specific objections.</p> <p>(State v. Sekl, 1 Dev. & Bat., 377; State v. Ephriam, 2 Dev. & Bat., 162; McDaniel’ v. Xing, 89 N. C., 295 ; Currie v. Clark, 90 N. 0., 17; Ware v. Nisbit, 92 N. C.,. 202: State v. Hart, 6 Ired., 389, cited and approved).</p>

INDICTMENT for murder, tried before Ciarle, Judge, and a jury, at September Criminal Term, 1885, of the Superior Court of Wake county.

Indictment, tried before Gilmer, Judge, and a jury, at Fall Term, 1885, of the Superior Court of Okange county.

INDICTMENT for murder, tried before Gudger, Judge, and a jury, at the December Term, 1885, of the Superior Court of Buncombe county. The prisoner was indicted for the murder of one Vm. G. Haney.